Priya Sharma
Introduction
Incorporating community service in the new criminal laws as a punishment for petty offenses is a progressive shift from the traditional retributive theory of justice to a restorative one. This approach to criminal justice is based on the principle of “abhor the crime and not the criminal”. As Gandhiji wrote in 1946, “Crime is a disease like any other malady and is a product of the prevalent social system. Punishment does not prevent the spread of the disease, instead, it is the overall socio-economic system that causes the disease. Treating the individual can only be effective if we address underlying socio-economic issues.” Community service fulfils this role as it addresses crime and contributes to community welfare. Defined under Section 23 of the Bhartiya Nyaya Suraksha Sanhita, it means “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.”. This form of punishment serves a dual purpose by allowing offenders to remain integrated within society while actively working for the welfare of the community. However, this paper aims to critically examine whether community service meets the aims of the punishment and to what extent it functions as a punitive measure.
Historical Context of Community Service
Section 18(1)(c) of the Juvenile Justice Act, 2015 empowers the court to order community service to the delinquents of petty and serious offences under mandatory supervision. Moreover, before the enactment of the new laws, the Courts in many matters have demonstrated their inclination towards community service as a punishment by deriving the authority from section 437(3) or 482 of the CrPC, which empowers the Court to make any order to ensure the “ends of justice”.
Furthermore, the Indian Penal Code (Amendment) Bill, 1978 attempted to introduce community sentences without remuneration, proposing consensual sentencing for offenders below 18 years of age. The proposed working hours ranged between 40 to 1000 hours. However, the bill lapsed due to the dissolution of the Lok Sabha. Besides, the 156th report of the Law Commission of India declared the community sentencing, “impracticable” due to the inevitability of supervisory authority acting as an added burden on the administration.
Judicial Implementations
The judiciary has also demonstrated the shift from the traditional retributive approach to the reformative. For instance, in the Sanjeev Nanda case, the court emphasised the importance of rehabilitation and restitution over incarceration by acknowledging the psychological toll of trial on the convict due to the extended duration. The court reduced his sentence to the time he served in jail, and gave two years of community service. Moreover, in Solemen SK v State of West Bengal, the Supreme Court ordered the offender who was a juvenile at the time of the crime, to plant 100 trees within a year, thus, serving as a precedent for future cases to devise sentences linking rehabilitation with socially beneficial activities. Likewise, the convict, charged with culpable homicide not amounting to murder in Azad Khan vs. the State of MP, was ordered to provide community service at the District Hospital, Guna. On the same lines, highlighting the importance of community service, the Court in the case of Sunita Gandharva vs. State of M.P. and Anr, held that community service can help melt an accused’s ego and integrate him back into society, rekindling compassion and service.
Aims of Punishments in the Criminal Justice System
The punishments in the criminal justice system are based on the four recognised theories/ aims of criminal punishment; retribution, deterrence, incapacitation, and rehabilitation. With the advent of community sentencing under the new laws, it becomes crucial to ascertain whether community service effectively aligns with these aims or falls short of delivering the expected punitive impact.
Retribution
According to the theory of retribution, an offender should be punished according to the gravity of the offence. When viewed through this lens, community service can achieve retribution by depriving the offenders of their liberty and compelling them to do some work without being paid for their labour. Hence, the purpose of retribution is achieved. Another important principle of this theory is that the punishment should fit the crime; proportionality. It is when an offender receives a punishment proportional to the gravity of his offense. This can also be achieved in community service by taking a holistic view of the situation while devising the exact sentence. This researcher argues that not only does community service fulfil the purpose of proportionality, and does so better than incarceration because of the specificity and nature of the penalties, which can be modified specifically for each offense and offender.
Deterrence
The next aim of punishment to be considered is deterrence which means preventing the crime, typically by instilling fear of the consequences. In the case of, State Of M.P vs Najab Khan & Ors, the High Court held that a strongly deterring nature of punishment is needed when the crime is grave, for instance, such as rape. In the case of petty offenses, for which community service is being proposed, the crimes are not of such gravity, thus, usually, the punishment is a short prison sentence. However, community service is a better option than a short-term prison sentence because completing unpaid work has a greater deterrent impact than a short-term prison sentence. By offering community service instead of a prison sentence, one serves out their punishment with the threat of a prison sentence hanging over them if they commit another crime, thus, there can be a deterring effect.
Incapacitation
The third aim of punishment is incapacitation which refers to the removal of the criminal from society to render him unable to commit the crime. Its goal is directed towards society as it helps citizens feel more protected. However, community service does not serve the aim of incapacitation as the offenders rather than being removed from society, remain in the society and there are limited restraints on his mobility as compared to incarceration. However, while community service does not physically remove the offender from society, it does subject them to supervision and monitoring, reducing the risk of reoffending through structured accountability.
Rehabilitation
Furthermore, the fourth aim of punishment is rehabilitation which aims to reduce crime by giving offenders the opportunity to learn skills that help them become accountable individuals in society. This goal is achieved by helping the offenders to reintegrate into society as law-abiding citizens. As emphasized by the Supreme Court in the State of Gujarat v. Hon’ble High Court of Gujarat, the primary purpose of punishment in the criminal justice system is reformation which can be achieved through rehabilitation. Supportively, research shows that recidivism, that is, the tendency to reoffend is lower in individuals receiving community service as compared to the released prisoners, as they tend to develop connections to their community. Therefore, community service helps to change the offender, lowering the likelihood of reoffending by promoting social integration, ultimately achieving the goal of rehabilitation.
Recommendations for Implementation of Community Service in India
As elucidated in the above analysis, community service is punitive which makes it a visible viable option. Additionally, with the overburdened prison system of the country, the enormous expenditure required for prison construction and the violation of human rights in the prisons, community service emerges as a timely solution. However, for its effectiveness and long-term viability, it is essential to implement it with a well-designed plan that addresses potential challenges and enhances its impact.
Offender-Awareness
The first important element is to brief the offender on the purpose and the nature of their punishment otherwise the offender is likely to re-offend under the misbelief that community service is not a punishment rather they are being let off with a second chance.
Crime–Related Service
The second important element is to ensure that the community service work fits the crime, which can be ensured using two key criteria: proportionality and appropriateness. Proportionality would ensure that the amount of work given is neither excessive nor too minimal, as neither serves the purpose of rehabilitation. Appropriateness refers to ensuring that the restitutive work being done by the offender in their community service sentence has some relation to their offense. This could go to the specific extent of a graffiti maker artist being asked to clean walls or merely maintain a general similarity.
Strict Supervision
The third essential element is ensuring a strict system of supervision while the community service sentences are being carried out. Research has shown that without supervision, offenders relapse into criminal activities such as the use of illegal substances, even while doing the work. Additionally, supervision would ensure that the offenders are completing the work and adhering to an adequate standard regarding the quality of work.
Flexible Scheduling
Furthermore, for community service sentences to be effective and fair, the court should specify total working hours. In the past, The Indian Penal Code (Amendment) Bill, 1978 proposed, working hours ranging between 40 hours to 1000 hours for community service. However, the duration prescribed in the Bill was not in conformity with the Factories Act. Therefore, the legislators must determine the exact number of hours to be worked each day, taking into account the offender’s family and employment obligations. This would ensure that community service does not act as a hindrance to other aspects of their reintegration into society.
Community Service Framework
There is a need for a robust legal structure to provide a safeguard against the human rights abuse of prisoners who are engaged in community service. Furthermore, implementing community service as a substitute penalty for less severe or non-aggressive wrongdoers has the potential to notably decrease the number of individuals in prisons and ease overcrowding, as highlighted by the NCRB’s 2022 report of 131.4% capacity. Therefore, community service acts as a compassionate option to incarceration while addressing overcrowding problems.
Conclusion
The inclusion of community service as a type of punishment in India’s updated criminal laws is a positive move towards a restorative justice model. This method, based on the principle of “hating the crime, not the criminal,” is in line with the restorative values upheld by thinkers such as Gandhi. Our study shows that community service somewhat fulfils the goals of punishment, such as retribution, deterrence, and rehabilitation, but it lacks effectiveness in terms of incapacitation. Additionally, tailored community service orders can effectively meet the principles of retribution and proportionality by matching the offense’s nature and severity. Coming to deterrence, community service though not as deterring as harsher penalties for serious crimes, effectively discourages petty offenders by imposing significant consequences and the possibility of jail time for repeat offenses. Furthermore, this model demonstrates its most successful outcome through lower rates of reoffending among individuals who finish their community service. Nevertheless, careful attention to specific factors like offender awareness, crime-related service tasks, strict supervision, and flexible scheduling is crucial for successful implementation. India can address problems like overcrowded prisons, human rights abuses, and the high costs of incarceration by choosing community service over imprisonment, leading to a fairer and more compassionate criminal justice system.
The author is a second – year student at the Rajiv Gandhi National University of Law, Patiala.
NUALS Law Journal 