This is a guest post by Adv. Rajat Tomar (rajattomar37@gmail.com) (LLM from Delhi University)

I. Introduction

Section 8 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”)—titled “Amount of fine, liability in default of payment of fine, etc.”—corresponds broadly to Sections 63–70 of the Indian Penal Code, 1860. These provisions determine:

1. the quantum of fine when no statutory limit is prescribed; and
2. the consequences of default in payment of fine or, in certain cases, failure to perform community service.

This column argues that Section 8 suffers from two critical omissions:
(i) it fails to specify the extent or duration of imprisonment in cases where a convict defaults on community service; and
(ii) it omits to provide for termination of such imprisonment once community service is subsequently performed.

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II. The Framework of Section 8

For context, Section 8 of the BNS outlines the following:

• Sub-sections (1) to (3) cover fines—how they may be imposed and the imprisonment permissible in case of default.
• Sub-section (4) extends the rule to “default of community service,” but only in respect of the type (simple or rigorous) of imprisonment, not its extent.
• Sub-section (5) applies when an offence is punishable only with fine or community service, capping imprisonment terms at two months, four months, or one year depending on the fine amount.
• Sub-section (6) provides when imprisonment in default of fine shall terminate—but is silent on termination when the default relates to community service.

In short, the section fails to comprehensively regulate defaults in community service, particularly in offences punishable with imprisonment or fine or community service.

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III. Community Service under the BNS Framework

Community service is recognized as a form of punishment under Section 4 of the BNS.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) defines it [Explanation to Section 23(3)] as work that benefits the community and carries no remuneration.

It has been prescribed for six petty offences—Sections 202, 209, 226, 303, 355, and 356(2) BNS. For instance, Section 202 allows punishment of imprisonment up to one year or fine or both or community service.

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IV. The Gap in Section 8

Section 8(2) covers only two categories of offences:

1. those punishable with imprisonment and fine, and
2. those punishable with imprisonment or fine, or fine only.

It does not address offences punishable with imprisonment or fine or community service.

While sub-section (4) mentions “default of community service,” it merely allows the court to impose imprisonment “of any description” (simple or rigorous). It does not specify its duration.
Sub-section (5) partially addresses default where community service is an alternative to fine, but only for offences punishable with fine or community service, not those where imprisonment is also an alternative.

This leads to two internal inconsistencies:

• Sub-section (4) allows “any description” of imprisonment, whereas sub-section (5) restricts it to “simple imprisonment.”
• No provision clarifies when imprisonment imposed for default in community service should terminate—unlike in sub-section (6) for fine defaults.

Thus, the BNS leaves unanswered:

• What is the permissible quantum of imprisonment on default of community service?
• When does such imprisonment end—if the convict later performs the community service?

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V. Way Forward

To close this statutory gap, the following amendments are proposed:

1. Amend Section 8(2):
   Insert a third category—“offences punishable with imprisonment or fine or community service”—to explicitly bring such cases within its ambit.
2. Amend Section 8(3):
   Prescribe the extent of imprisonment in default of community service, akin to the rule for fine defaults.
3. Amend Section 8(6):
   Add a clause specifying when imprisonment imposed for default of community service shall terminate, e.g., upon subsequent completion or partial performance of the service.

These clarifications are essential to ensure consistency, fairness, and effective enforcement of community service as a viable penal alternative.

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— Rajat Tomar