INTRODUCTION
The Indian criminal laws, established during colonial rule, needed reform after 200 years to address shortcomings and adapt to current demands. The criminal justice system in India faces challenges such as delayed investigations, case backlogs, low conviction rates, and violations of victims’ and accused rights.[1] In 2023, the President of India approved three new criminal law bills to replace outdated laws. These include Bharatiya Nyaya Sanhita 2023, Bharatiya Nagrik Suraksha Sanhita 2023, and Bharatiya Sakshya Adhiniyam 2023. These bills introduce community service as a form of punishment, a concept previously not recognized in India. In the past, punishment in India was based on deterrence and retribution[2], while now the focus is on deterrence and reformation through alternative forms of punishment.
COMMUNITY SERVICE – MEANING AND CONCEPT
Community service is a form of sentence that serves as an alternative to incarceration, where offenders are required to perform unpaid work for the benefit of the community under the supervision of a Probation Officer. This form of punishment aims to reintegrate offenders into society while also allowing them to give back to the community they have harmed. It is a non-custodial punishment awarded by the Court after convictions, focusing on minor or non-violent offences where imprisonment may not be appropriate. Community service is seen as a way to symbolically repay society for the harm done.
Origins of community service can be traced back to the reformative approach of criminal law[3], similar to the concept of probation. Both community service and probation are post-conviction measures that provide alternatives to incarceration, allowing offenders the opportunity to reform and rehabilitate within the community. While probation focuses on supervising convicts to abide by certain conditions, community service requires offenders to perform specific work for a set number of hours as directed by the Court. These sentences are generally reserved for nonviolent offences, with more serious crimes excluded from consideration.
COMMUNITY SENTENCING AND THE BHARATIYA NYAYA SANHITA
Community service has been added as a punishment option in the Bharatiya Nyaya (Second) Sanhita 2023[4], whereas the death penalty, imprisonment, forfeiture of property, and fine were the forms of punishment included in the Penal Code, 1860[5].
Community service is incorporated by the BNS as a punishment for the following offences:
- Public servant unlawfully engaging in trade,[6]
- Non- appearance in response to a proclamation under Section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023;[7]
- Attempt to commit suicide to compel or restrain the exercise of lawful power,[8]
- Petty theft, where the value of the property stolen is less than Rs. 5000,[9]
- Misconduct in public while being intoxicated,[10] and defamation[11].
Community service for theft is only applicable to first-time offenders who have returned the stolen property. The Bharatiya Nagarik Suraksha (Second) Sanhita 2023 does not specify the duration or guidelines for community service implementation, leaving room for discretion. By incorporating community sentencing, India will align with international practices followed in countries like the USA, Sweden, England, Canada, Spain, and Australia. This marks a progressive step towards rehabilitation and integrating offenders back into society.
THE NEED FOR COMMUNITY SENTENCING
In recent years, concerns have grown over India’s criminal justice system, with the country ranking 79th out of 142 in the Rule of Law Index as of 2023[12]. The state of prisons in India is particularly troubling, with overcrowding being a major issue. The inmate population has increased, with a significant number of prisoners being under trial. The high percentage of under-trials and overcrowding indicate a serious problem in the Indian prison system. Despite increased funding, the conditions in Indian prisons remain poor, with inadequate access to doctors and infrastructure. The treatment of inmates, especially first-time offenders, raises concerns about their physical and mental health. Suicide is a leading cause of unnatural deaths among prisoners. The negative impact of incarceration on offenders, leading to psychological issues and a higher risk of reoffending, highlights the need for alternative forms of punishment.
Community service as a punishment could alleviate the strain on Indian prisons by reducing overcrowding and expenses. It would hold offenders accountable for their actions while providing them with valuable skills and a sense of community belonging. Countries like New Zealand, Singapore, and the USA have successfully implemented community-based sentencing, showing positive outcomes in terms of rehabilitation and reintegration. Community service not only benefits offenders in acquiring new skills but also contributes to their moral development as responsible members of society. It has been proven to lower recidivism rates and provide a better sense of self-worth among convicts.
Ultimately, court-ordered community service serves as a more humane and effective form of punishment that addresses the shortcomings of incarceration. It promotes societal responsibility, reduces the burden on the criminal justice system, and helps offenders reintegrate into society successfully.
PAST EFFORTS TO INTRODUCE COMMUNITY SENTENCING IN INDIA
In India the only existing provision for court-ordered community service was under the Juvenile Justice Act of 2015, allowing the Juvenile Justice Board to assign child offenders to perform community service[13]. The concept of ‘corrective labour’ was introduced in the 42nd Law Commission Report[14], while the Penal Code Amendment Bill of 1978 included provisions for community service for offenders over 18 years old. This bill allowed for up to 1000 hours of community service for offenders convicted of crimes with less than three years of imprisonment[15]. Despite the lack of clear legislation on community sentencing in Indian penal laws, the judiciary has used its discretionary powers under Section 482 of the Criminal Procedure Code to implement community service[16]. However, the discretionary nature of these actions has led to ambiguity. To ensure consistent application and transparency, specific legislation on community sentencing is needed to fully leverage its benefits.
POSSIBLE HURDLES WHILE INTRODUCING COMMUNITY SENTENCING IN INDIA
Recidivism: Implementing community sentencing can be complex. One key challenge is recidivism, where offenders may not fully grasp the consequences of their actions when given community service as an alternative to prison. Despite this, research shows that community service can be more effective in reducing repeat offenses compared to incarceration. Countries like New Zealand, Finland, and the USA have seen a decline in recidivism rates after implementing community sentencing. Establishing clear criteria for completion and effective supervision can further decrease recidivism, ultimately leading to a decrease in overall crime rates in the country.
Public Perception: The public in India may have mixed perceptions about the introduction of community sentencing. Some see it as a positive step towards rehabilitation, while others view it as a lenient punishment. There may be concerns about offenders working in public places. Communities that benefit from well-run community sentencing programs tend to view it more positively. The effectiveness of court-ordered community service also plays a role in shaping public opinion. Engaging in public discussions, utilizing media, ensuring strict supervision, and being transparent about the outcomes of community sentencing can help improve public perception of this form of punishment.
Unmonitored Absence: Community sentencing supports rehabilitation and reintegration, but unmonitored offender absences pose a challenge. New bills specify eligible offences for community sentencing but lack administration guidelines and consequences for non-compliance. Ensuring effective supervision is vital to prevent increased absenteeism. Unchecked oversight may lead to more absences.
CONCLUSION
Community sentencing is a key tool for promoting reformative justice and rehabilitation. The inclusion of community service as a punishment in the Bharatiya Nyaya Sanhita demonstrates a commitment to this approach in the Indian Courts. This type of sentencing can help offenders reform, boost their self-esteem, and provide valuable resources to society. However, successful implementation requires careful planning to address issues like absenteeism and ensure the smooth reintegration of offenders into the community. Strong community support is crucial in transforming the justice system into one that focuses on rehabilitation. Balancing support and accountability is essential for maximizing the benefits of community sentencing and creating a more effective criminal justice system.
Author(s) Name: Areesha Aafreen (Integral University, Lucknow)
Reference(s):
[1] Kislay Kumar and Vibhor Jain, ‘Indian Criminal Law : Changing Paradigm’ Bar and Bench (27 December 2023) <https://www.barandbench.com/law-firms/view-point/indian-criminal-law-changing-paradigm> accessed 08 July 2024
[2] Mansi Dagras, ‘Corrective Labour as a Form of Punishment in India’ (2021) SSRN <https://www.ssrn.com/abstract=3905402> accessed 08 July 2024
[3] Lannette Linthicum and James A. Gondles, ‘Declaration of Principles’ (2019) <https://www.aca.org/ACA_Member/About_Us/Declaration_of_Principles> accessed 08 July 2024
[4] Bharatiya Nyaya Sanhita 2023
[5] Indian Penal Code 1860, s 53
[6] Bharatiya Nyaya Sanhita 2023, s 202
[7] Bharatiya Nyaya Sanhita 2023, s 209
[8] Bharatiya Nyaya Sanhita 2023, s 226
[9] Bharatiya Nyaya Sanhita 2023, s 303 (2)
[10] Bharatiya Nyaya Sanhita 2023, s 355
[11] Bharatiya Nyaya Sanhita 2023, s 356 (2)
[12] World Justice Project, World justice Project Rule of Law Index (2023)
[13] Juvenile Justice Act 2015, s 18(1)(c)
[14] Law Commission, Indian Penal Code, 1860 (Law Com No. 42, 1971)
[15] Law Commission, Indian Penal Code, 1860 (Law Com No. 156, 1977)
[16] Code of Criminal Procedure 1973, s 482
