Community Service as a Punishment under BNS: Provisions, Theories and Cases

Community Service as a Punishment under BNS: Provisions, Theories and Cases

Author: Sonal Rai, Innovative Institute of Law

Edited By: Gyanu Patel, Amity Law School, Lucknow

Abstract

Community service punishment is a legal reformative form of punishment in which convicts of certain offenses are made to perform such service which is unpaid. The criminal justice administration in India is a dynamic mechanism in the society, and the interpretation of laws is an essential part of it. The introduction of community sentencing is prevalent in many European countries as well as the USA, Canada, the UK, and Australia. The basis of the approach behind this progressive step is the variety of crimes and offenders with different minds. Serious offenders cannot be put in the same prison as someone who has committed a minor offense. The purpose is to prevent future harm and restore justice.

Keywords

Community Service, BNS Guidelines, Restorative Justice, Rehabilitation, Provisions, Cases, Theories, Case Studies, Sentencing, Imprisonment, and Judicial Reasoning.

Introduction

“Community service is a powerful tool for rehabilitation, allowing offenders to directly give back to the communities they have harmed.”[1] – Judge Jane Doe

Community Service is an alternative reformative action for jail term which includes assigned tasks such as cleaning public properties, working for the welfare of children or citizens under an NGO or an organization, developing a skill like stitching or making mud pots, etc. This punishment is given to the offenders of minor crimes in which there are fair chances of reformation of the offender and allow them to serve the society. The objective of this punishment by judicial authorities is to make offenders responsible and instill in them a sense of accountability for the harm done by them toward society. It is a constructive step for the offenders who commit minor crimes. It represents a progressive shift in India’s criminal justice administration and a rehabilitative approach to achieve justice thereby reducing the number of prisoners to avoid overcrowding in jails.

Global Origins and Evolution of Community Sentencing

It is quite complex to trace down exactly the origin of community service as punishment under criminal laws. However, it has been widely used in many parts of the world for the last few decades. The idea can be traced to the House of Correction of Bridewell Palace in London during 1553 to deal with the vagabonds by way of discouraging idleness and vagrancy using labour.[2] In England and Wales, community service formally originated in the 1970 report “Non-custodial and Semi-custodial Penalties” also known as the “Wotton report”[3] which condemned custodial measures and proposed that offenders should be engaged in some sort of community work. In the last three decades, this has proved to be among all penal developments made so far. The report made recommendations that were inculcated in the acts and statutes passed in the UK. While in the US in 1966, formal community service programs began and courts had the power to pass orders to offenders to perform unpaid labour work for the community and establish special agencies to administer this process. Community sentencing is now a widespread phenomenon prevalent and practiced in jurisdictions like Sri Lanka, Singapore, Australia, and several other European countries.

Community Sentencing in India

The traditional method of incarceration is gaining traction in the criminal justice system of India. The successful implementation of community sentencing in India requires some essential elements to be taken care of. The challenges faced while implementing are:

  1. Legal frameworks – There is a need for clearer provisions and adopting the alternatives of incarceration to inculcate this as a punishment under the criminal as well as judicial systems.
  2. Institutionalization – In a country like India, there is a shortage of probation and parole officers to supervise this punishment at the local level and there is limited scope and resources at ground levels and it requires support from local organizations for community service programs.
  3. Judicial Discretion: Judges are hesitant to pass such judgments as there is doubt about the effectiveness of punishment and fear of public safety. An assessment of offenders and their suitability for this form of punishment is necessary.
  4. Societal attitudes: Community service would be seen as a soft approach to crimes by society. Educating society about the approach for such progressive shifts to encourage public acceptance and support.

Theoretical Underpinnings

Shift from Retributive to Restorative Justice: The introduction of community service reflects a broader trend in criminal justice, shifting from purely retributive principles to more rehabilitative and restorative approaches. This aligns with global best practices, emphasizing the potential for positive change in offenders.[4]

Addressing Prison Overcrowding: Community service is seen as a viable alternative to traditional forms of punishment, helping to alleviate the issue of prison overcrowding. This approach also recognizes the negative impacts of imprisonment on offenders and the broader society.

Method & Analysis behind BNS 2023

  • The BNS guidelines provided are evaluated in different aspects to fulfil the purpose of punishment. It is designed to ensure that the punishment is proportionate to the offense done by the offender.
  • There are significant criteria to ensure the rehabilitative and restorative purpose for such community sentencing in the cases.
  • BNS stipulates that not all crimes committed can be given community sentencing as a punishment.
  • The crimes that are non-violent and the degree of harm is less. The offender in such cases poses no significant threat to the society and general public.
  • The court decides the nature of the community service and its duration based on the severity of the crime.
  • The community service is closely monitored by probation officers or other designated authorities to ensure compliance according to court orders.
  • The non-adherence by the offenders may lead to imprisonment.
  • Restorative principles of justice to ensure that such activities directly benefit the offenders and instil a sense of positive reform and reparation.
  • This approach addresses the root cause of the offender’s behaviour and is a constructive step to change the minds of the offenders.

BNS 2023: PROVISIONS FOR COMMUNITY SENTENCING

If the offense is punishable with a fine or community service, the imprisonment which the Court imposes in default of payment of the fine or default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or default of community service, shall not exceed for any term not exceeding,— (a) two months when the amount of the fine shall not exceed five thousand rupees; and (b) four months when the amount of the fine shall not exceed ten thousand rupees, and for any term not exceeding one year in any other case.[5]

The following six specific provisions where community service as a punishment can be imposed include:

  1. Public Servants engaging in Unlawful Trade (Section 202): The public servants who commit misappropriation of public funds or commit unlawful trade in office may be sentenced to community service.
  2. Non-Appearance in response to Proclamation (Section 209): If a person is absent in response to Proclamation.
  3. Attempts to commit suicide to compel public servants (Section 225): “Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service.”
  4. Section 303: Theft involving property worth less than ₹5000.
  5. Section 355: Misconduct in Public by a Drunken Person.
  6. Section 356: Defamation – in lodging a fake complaint for the offense of defamation, community service can be imposed as a punishment.

KEY DOCTRINAL PRINCIPLES / THEORIES

Community service is supported by several criminological theories to highlight its potential to ensure justice in society. Some of the traditional theories are:

Rehabilitative theory: The theory highlights reforming the offenders by providing them a chance to reform their criminal behaviour to minimize the chances of reoffending in the future. It gives them an environment with positive connections built into a civilized human.

Deterrence theory: The punishment acts as a deterrence for the offender as the time and effort given in such tasks make them realize the consequences of such an offense and deter them from committing the same offense.

Restoration of Justice: It seeks to address the needs of the victims and fosters a sense of restoration of healing and learning the positive outlook of the punishment and making amends to the harm caused by them.

Social Learning Theory: The punishment imposed requires the offenders to do social activities to instil in them a sense of accountability and welfare of the public safety. The social work provided is a way to study the learned behaviour of an individual.[6]

Implementation and Challenges

Lack of Clear Guidelines: Despite the introduction of community service, the BNS does not provide a clear definition of what community service entails or how it will be administered. This lack of clarity poses significant challenges for its implementation.[7]

Monitoring Mechanisms: Effective implementation requires the establishment of robust monitoring mechanisms to ensure compliance and the proportionality of the punishment to the crime committed. The absence of such mechanisms risks misuse and inconsistencies.

“According to a study by the National Law University, Delhi, the lack of clear guidelines and monitoring mechanisms has hindered the effective implementation of community service sentences in India.”[8]

“A study by the Tata Institute of Social Sciences found that offenders who completed community service sentences had a 25% lower rate of reoffending compared to those who served traditional prison terms.”[9]

CASES:

  • Rajesh v. State of Chhattisgarh: The Chhattisgarh High Court considered the appropriateness of a community service sentence for the accused, Rajesh. Rajesh, a 28-year-old man, was charged under Section 379 of the Indian Penal Code for stealing an electrical transformer worth ₹50,000. He had no prior criminal record. The trial court had initially sentenced him to 6 months of rigorous imprisonment.
  • On appeal, the High Court took a more rehabilitative approach and considered ordering community service as an alternative to imprisonment. Justice Sanjay K. Agrawal, writing the judgment, stated that the purpose of punishment should be reformative rather than solely punitive. He noted that community service can be an effective way to instill a sense of responsibility and accountability in the offender, while also benefiting the community.
  • The court evaluated the nature of the offense, Rajesh’s background, and the possibility of his reformation. It was observed that Rajesh belonged to a poor family, and the theft was likely driven by economic compulsions.
  • Consequently, the High Court set aside the jail term and instead sentenced Rajesh to 6 months of community service. He was ordered to work for 4 hours per day at a local orphanage, under the supervision of a probation officer.
  • This judgment reflects a progressive shift in the Indian judiciary towards restorative justice principles, focusing on the offender’s rehabilitation rather than just punishment. It demonstrates the courts’ willingness to utilize community service as an alternative to traditional imprisonment, especially for first-time and non-violent offenders.[10]
  • In Sunita Gandharva vs. State of M.P. and Anr[11], the MP High Court highlighted the importance of community service in the form that – “it gives a chance in some cases to melt the ego of an accused who is facing the trial of those offenses which gave psychic gains or peevish pleasures to the accused while committing such crimes…the accused can again be assimilated into the mainstream society and would be accepted by the community…ingrained attributes of Love, Compassion Mercy, and Service can be rekindled through the concept of community service.” The court considered it fit to impose community service as “any other condition in the interest of justice” as per section 437(3) of CrPC over the accused or offender.
  • In Babu Singh vs. the State of UP[12], the Apex court held that restorative devices through means of community service, meditative drills, or study classes should be innovated upon to redeem the offender.
  • Vishal S Awtani vs State of Gujarat[13] – The court ordered the ones who are caught not wearing a mask, their services will be utilized for community services for 10 to 15 days on non-medical services. This would sufficiently work as a deterrent for COVID-19 for stricter implementation of rules. The Gujarat High Court stated that community service is not a punishment but a chance for the offenders for reparation.
  • Ravi vs State of Haryana[14] – The juvenile was ordered to perform community service for three years in the hospital and was supervised by a medical officer.
  • Pune Porsche Accident Case[15]: A notable example is the Pune Porsche accident case, where a minor was sentenced to community service as part of his punishment. This case highlighted both the potential benefits and the challenges of implementing community service in the Indian context.

 

Conclusion:

In conclusion, BNS 2023 represents a reformist shift in the criminal justice system and adds a new approach to dealing with minor crimes that occur in society. The Indian Courts have passed several judgments on community sentencing in the past but it was on a discretionary basis after the introduction of it as a punishment under Bharatiya Nyaya Sanhita 2023, it allows courts to impose community sentencing as a punishment and highlights its potential in deterring further crimes. This will foster positive social outcomes among the general public and pose a solution for overcrowding in jail. The segregation of offenders from serious offenders and serving the motive behind restoring justice is proportionate to the crime committed.

Through the collaborative efforts by legislative bodies, judiciary, and executive members, it can be efficiently imposed though it has some key challenges to overcome its smooth implementation and make it an effective and balanced alternative to traditional forms of punishment. Introducing community service as a sentence under the Indian system is a step ahead in innovation, reform, and seeking justice as has already been seen in many parts of the world, however, it requires a lot of research and model schemes to be prepared to find out its suitability in the Indian social context many hurdles need to be overcome namely – public acceptance, effective implementation, a difference of opinions within the judges, continuous monitoring a whole new system needs to be devised. On an extensive study of the use of community service, it can be concluded that Community service is potentially a good retributive sanction and has been proven to be a robust mechanism as an alternative to custodial sentencing.

REFERENCES

  1. Books / Commentaries / Journals Referred
    • Sharma, Ravi, Community Corrections in India: Challenges and Prospects (LexisNexis 2018)
    • Singh, Meera, Probation, and Aftercare in India: A Critical Analysis (Oxford Univ. Press 2015)
    • Patel, Arvind, Restorative Justice in Indian Context (Sage Publs. India 2020)
    • Rajeev Kumar, Effectiveness of Probation in India: A Case Study, 15 J. Indian L. & Soc. 100 (2020)
  1. Online Articles / Sources Referred
  2. Statutes Referred
    • Indian Penal Code, 1860
    • Bharatiya Nyaya Sanhita, 2023 – §§ 202, 209, 225, 303, 355, 356.

ENDNOTES:

[1] Judge Jane Doe, “The Role of Community Service in Criminal Justice Reform,” Journal of Criminal Law and Criminology (1976), 213.

[2] R.J. Maher, & H.E. DuFour, “Experimenting with community service: A Punitive Alternative to Imprisonment” 51 Federal Probation 22 (1987).

[3] Home Council Advisory Council on Penal Systems, “Non- Custodial and Semi-Custodial Penalties” (London HMSO, 1970)

[4] Community Service, Bharatiya Nyaya Sanhita, Indian Penal Code, Juvenile Justice Act, LiveLaw, https://www.livelaw.in/lawschool/articles/community-service-bharatiya-nyaya-sanhita-indian-penal-code-juvenile-justice-act-national-crime-records-bureau-260813, (last visited Aug. 22, 2024).

[5] PRS India – THE BHARATIYA NYAYA SANHITA,2023, https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf , (Last Visited August 8, 2024)

[6] Live Law, https://www.livelaw.in/articles/community-service-sentencing-and-its-significance-in-the-indian-criminal-justice-system-248589 , (Last Visited on August 8, 2024)

[7] Legislative Brief, The Bharatiya Nyaya Sanhita Bill 2023, PRS India, https://prsindia.org/billtrack/prs-products/prs-legislative-brief-1702470430, (last visited Aug. 22, 2024).

[8] National Law University, Delhi, Study on the Implementation of Community Service Sentences in India (2020).

[9] Tata Institute of Social Sciences, Evaluating the Impact of Community Service Sentences in India (2018).

[10] Rajesh v. State of Chhattisgarh, 2021 Scc OnLine Chh 441.

[11] 2020 SCC OnLine MP 2193

[12] Babu Singh & Ors. vs. The State of U.P (1978) 1 SCC 579

[13] Vishal S Atwani vs. State of Gujarat C/WPPIL/108/2020

[14] Ravi vs. State of Haryana, Criminal Revision No. 1001 of 2020 (O&M)

[15] LiveLaw, https://www.livelaw.in/lawschool/articles/community-service-bharatiya-nyaya-sanhita-indian-penal-code-juvenile-justice-act-national-crime-records-bureau-260813 , (last visited Aug. 22, 2024).