Vishnu Sharma
Recently, the Bharatiya Nyaya Sanhita, 2023, introduced the provision of Community Service as a punitive measure for certain offences. It is a remarkable step; however, a catena of shortcomings and challenges lie on the path of its implementation. This blog undertakes to critically analyse the provision of Community Service in India.
Introduction
‘Punishment is not for revenge, but to lessen crime and reform the criminal.’
Elizabeth Fry
Punitive measures form an indispensable facet of the criminal justice system. Punishments are given to the offenders, to create deterrence and provide an opportunity for rehabilitation. The Bharatiya Nyaya Sanhita, 2023, hereinafter referred to as “BNS”, has brought a remarkable shift in the realm of the criminal justice system in India. As a novel form of punishment, the introduction of community service has set the ball rolling towards adopting newer punitive measures in consonance with the changing needs of the time. However, murky waters lie ahead regarding its implementation at the grassroot level.
This blog endeavours to examine the viability of community service as a punitive measure in India. It commences with analysing the concept of community service as provided under BNS and other laws. Then, it analyses the provisions of community service in other jurisdictions worldwide. Further, it examines the exigency of community service in current times in light of judicial pronouncements. Then, it highlights certain shortcomings and hurdles in implementing community service at ground level in India and provides certain recommendations to deal with them.
The Concept of Community Service and Related Provisions
Community Service refers to performing some unpaid work for the betterment of the community. It is a concept of Western origin and is accepted as a punitive measure in many countries across the globe. In India, community service has never been a part of the criminal justice system. However, through a plethora of judgements, the judiciary has repeatedly recognised its importance as an instrument to redeem the wrongdoer. In the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P, 1978, the apex court observed that-
‘All deprivation of liberty is validated by social defence and individual correction along anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated.’
Recently, with the enactment of new criminal laws the provision of community service made inroads in the Indian criminal justice system. Section 4(f) of BNS, 2023, has introduced community service as a punitive measure for certain offences. Community service is prescribed for various offences encompassing- public servants unlawfully engaging in trade, attempt to commit suicide, to compel or restrain exercise of lawful power, non-appearance in response to a proclamation under Section 82 of Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, theft where the value of the stolen property is less than five thousand rupees and convicted for the first-time post return of the value of property, misconduct in public by a drunk person and defamation. Even though the BNS, 2023, has introduced community service as a punishment for certain offences, however, it fails to define the same.
Section 23 of the BNSS has made an attempt to define it as- ‘Community service shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.’ The given definition is fraught with an array of lacunae and shortcomings, which creates legal uncertainty over the implementation of community service. The definition does not mention the category of offenders to whom community service shall be granted. It does not clarify what activities will fall under the definition of community service and the meaning of the term ‘benefits the society’. Further, it fails to provide provisions to ensure supervision of the execution of community service.
Community Service in Countries Around the World
Community service as a non-custodial form of punishment is also provided under the criminal laws of various countries worldwide. In the United Kingdom (UK), a community sentence is granted if one is convicted without imprisonment. In the U.K, “Community Payback” means performing unpaid work for the community under the supervision of a Community Payback Supervisor. The type of work under Community Payback comprises of removing graffiti, clearing wasteland, and decorating public places and buildings. The duration of community service usually depends upon the severity of crime varying from 40 to 300 hours. To ensure that community service does not act as a hindrance to one’s professional and personal life, Community Payback work is arranged during non-working hours, i.e. during evenings or weekends.
In Malaysia, community service is given to punish youthful offenders as a substitute for a custodial sentence or fine. The term “youthful offenders” is explicitly defined under Section 2 of the Criminal Procedure Code of Malaysia, hereinafter referred to as “CPC”, as an individual who is above eighteen but below twenty-one years of age. Also, Section 293(1)(e) of CPC provides that-
‘Community Service means any work, service or course of instruction for the betterment of the public at large and includes, any work performed which involves payment to the prison or local authority.’
In Malaysia, the Offenders Compulsory Attendance Act, of 1954, provides for a Compulsory Attendance Order, under which an imprisonment sentence is granted to offenders who have committed certain offences; however, they have to serve the sentence by performing compulsory work outside the prison. Such a type of sentence is usually granted to first-time offenders for committing minor offences, such as riding a motorcycle without a helmet, petty shoplifting etc. Furthermore, to ensure effective regulation and compulsory Attendance, the Parole and Community Services Centre’s Officer of the Malaysian Prison Department is deployed to supervise the offenders.
Exigency of Community Service As a Punitive Measure and Judicial Pronouncements
Community service, as an alternative to custodial punishment, is a welcoming step in paving the trajectory for transformation in the criminal justice system. It becomes exceedingly relevant, especially at an hour when dark clouds of issues like- prison overcrowding, lack of adequate prison infrastructure, inhumane living conditions under prisons etc., have surrounded the Indian criminal justice system. Further, community service can also play an instrumental role in reforming the offender, as the ultimatum of the criminal justice system is to ensure rehabilitation, reformation and restoration of the wrongdoer.
The courts have time and again highlighted the importance of community service as an expedient punitive measure. In the case of Babu Singh v. State of U.P, the apex court shed light on the importance of restoration and redemption of the offender through community service, meditative drills, study classes, etc. Additionally, in the case of Vipul v. State of Uttar Pradesh, 2022, the Supreme Court observed that-
‘A mere punishment without reformation would not serve the purpose as it might have the propensity of creating more such actions. The ultimate idea is to bring the convict back to the civil society. For this purpose, innovative solutions with respect to sentencing such as community service as an alternative may also be considered by the states/Union governments in due course.’
The above-mentioned judicial pronouncements are reflective of the judiciary’s intent to not just punish but also reform the wrongdoer through alternate measures like community service. It also reflects the optimistic outlook of the judiciary on rehabilitative measures like community service despite the dearth of laws on the same.
Critical Analysis: Examining the Challenges and Shortcomings
Even though BNS introduces community service as a form of punishment, however, it fails to specify the nature of work and duration of punishment. This creates a legislative lacuna, leaving the doors open for a multitude of interpretations and the possibility of arbitrary usage of power by the relevant authorities, supervising the execution of community service. Thus, it is extremely necessary to provide a specific and inclusive definition of community service in the BNS, 2023. The definition must provide adequate information on aspects such as the activities that will be included in community service, provisions to ensure supervision, the category of offenders to whom community service may be granted, etc.
In addition to this, there are no explicit guidelines that regulate, govern and administer the implementation of community service in India. As has been mentioned above, laws in the United Kingdom and Malaysia explicitly provide for regulatory mechanisms in the form of Community Payback Supervisor and Compulsory Attendance, Parole and Community Services Centre’s Officer respectively. However, in India, there is no clarity over the supervision and regulation of community service. There is uncertainty over whether the supervising authorities will be from the court, police, jail or some other department. Thus, it is expedient to enact specific provisions providing details pertaining to the supervision of community service. For instance, functionary like the district programme officer can be appointed as a nodal officer for the monitoring and implementation of community service.
Furthermore, BNS does not specify to whom the community service will be granted. There is a possibility that community service, if granted to regular offenders, will result in a travesty of justice, with criminals easily escaping liability through the effortless course of community service. However, on the other flank, if granted to first-time offenders or young offenders, as in Malaysia, it will become a vehicle for retribution and rehabilitation.
At this juncture, it is striking that in the case of State v. Sanjeev Nanda, the Supreme Court awarded community service to the offender for the offence of culpable homicide not amounting to murder. The court observed that-
‘Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to them, especially in a case where because of one’s action and inaction, human lives have been lost.
In the facts and circumstances of the case, where six human lives were lost, we feel, to adopt this method would be good for the society rather than incarcerating the convict further in jail.’
Here, the Supreme Court completely missed out on the possibility of community service becoming a channel to escape liability in cases of grave offences. This makes this judgement particularly controversial with regard to the grant of community service in grave offences. So, in order to bring legal certainty, it is pertinent to explicitly provide for categories of offenders to whom community service may be granted as a punishment. For instance, in Malaysia, community service is granted to first-time offenders.
Additionally, certain organisations and non-governmental organisations can be tasked with assisting the stakeholders in conducting community service programs. The NGOs may collaborate with the relevant authorities and conduct social drives, including- Clean City campaigns, food distribution drives, traffic rules awareness campaigns, etc., which will serve the dual purpose of increasing community engagement and sensitising offenders about their societal duties. It will help in rehabilitating and restoring wrongdoers back into society through the course of reformation.
Furthermore, the government must adopt a more data-driven approach to determine the efficacy of community service as a viable punitive measure. The government must determine to what extent the goals of restoration and rehabilitation of the offender have been achieved in the past years and what the community service aims to achieve in the future. It also entails determining the tendencies exhibited by the offenders to whom community service has been granted. For instance- whether the offenders are showing recidivist tendencies after granting the community service. This will help in recognising the category of offenders to whom community service can be granted to fulfil the purpose of reformation, redemption and rehabilitation.
Conclusion
It is manifestly clear that with changing circumstances the criminal justice system has to tread ahead on the path of steadfast pursuit for reformation. The rising number of criminal offences and overly crowded prisons exemplify that, up to a certain extent, the already existing punitive measures have failed to achieve the aim of deterrence and rehabilitation. Amidst such a scenario, the introduction of community service is reflective of the attempts made by the government to pick the gauntlet of legal reformation. However, the same needs to be complemented with necessary executory provisions and clear guidelines. Merely, introducing the provisions without explicit definitions or clear guidelines will result in it becoming a theoretically audacious but pragmatically imprudent venture. It is highly necessary to implement the above-recommended steps to fulfil the dual purpose of ensuring proper implementation coupled with maintaining its sustainability in the longer run. Ultimately, any step has to qualify the litmus test of pragmatism for it to become a propelling force taking the Indian legal system ahead on the path of illustrious reformation and growth.
The author is a second year law student at Symbiosis Law School, Pune.
NUALS Law Journal 