Of 11 contemporary textbooks in criminology written by sociologists, 10 have one or more chapters devoted to the punishment of offenders[1], and it is no topic of debate that punishments have been an integral part of the criminal justice system. Some theorists even believe that punishments are the primary purpose of criminal law. Through the application of criminal law, society works to defend itself, hold criminals responsible for their particular transgressions, and influence future behavior. But, there was no straightjacket formula or the perfect punishment to achieve the desired changes, over the centuries, the concept of punishment has evolved significantly, and societies and nations have chosen punishments they deem best to influence their milieu. While trial and error is still in process, yet another development was made in the criminal correction system of our country by the introduction of new criminal laws. The Home Ministry announced the enactment of the three new criminal laws- Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, enacted to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, respectively, effective July 1, 2024.

From the punishment point of view, a very notable addition was made in Bharatiya Nyaya Sanhita, with the addition of community service as a type of punishment for petty offenses, first-time offenders, and nonviolent crimes. Along with different forms of punishment like imprisonment and fines, community service has been added for the following offenses:

• Engaging in unlawful trade as a public servant[2]
• Non-appearance in response to a proclamation under section 84 of BNSS, 2023[3]
• Attempt to commit suicide to compel or restrain the exercise of lawful power[4]
• Theft where the value of the stolen property is less than five thousand rupees and a person is convicted for the first time and returns or restores the value of property[5]
• Misconduct in public by a drunken person[6]
• Defamation[7]

While the Adhiniyam has introduced community service as a punishment, there are no mentions of it’s practical application. The job has been given to the courts to interpret the facts of the cases and determine the number of hours and nature of work best suitable for every scenario, to ensure that it benefits the community and brings reform in the offender.

PREVIOUS MENTIONS

Although community Service was not a part of IPC, it was not an alien concept either. One of the first mentions of the punishment was in the 42^nd Law Commission Report when the concept of ‘corrective labor’ was introduced as an alternative to incarceration. Later, it was also added to the Indian Penal Code (Amendment) Bill, 1978, for offenses that included imprisonment for less than three years; in addition, it also provided the duration of the service. The bill, though passed in Rajya Sabha, lapsed due to the proclamation of emergency. Before BNS, the Juvenile Justice (Justice and Protection of Children) Act 2015 was the only law in India that allowed courts to order community service. Under the act, the Juvenile Justice Board can order child criminals to do community service under the watch of an organization, a certain person, or a group of people chosen by the board.

Besides the mention in the laws, there have been a few cases where the offenders have been ordered to do community service in lieu of the offense committed. In a particular case, the offender was given the task of writing a 25-page essay on eve-teasing and distributing 500 copies of the same outside schools and colleges for sexually harassing a woman on the bus. In another case brought before the Patna High Court, in exchange for provisional bail, community service at a temple for thrice a week was given to the accused of a mobile phone loot case. Similarly, the court ordered the accused to do community service at different hospitals in a few other cases like Parvez Jilani Shaikh v State of Maharastra and Manoj Kumar v State. This being said, there hasn’t been a lot of practical application of the sentence and though not an alien concept, most of it is still unchartered territory in the Indian justice system.

NEED FOR COMMUNITY SERVICE

With the current state of jails, concern regarding our criminal justice system, and rate of repeat offenders, India stands at a pivotal juncture where this law regarding community sentencing can prove to be not just beneficial but necessary for the comprehensive development of our nation.

Firstly, there isn’t enough attention paid to the fact that the jails in India are already over-congested and they cannot afford more inmates, especially ones for petty crimes. According to Prison Statistics India 2022 there has been a drastic surge of 131.4% in the occupancy rate of the jails. The aggregate population of inmates has saw an increase of 14% in a span of 2 years, till December 2021, which made the national average of prison overcrowding 130%. Out of the 1314 prisons in India, more than 30% of them had been classified as “extremely” overcrowded, with an occupancy rate of above 150%. Out of the total inmate population, only 22% of them are convicts, while 77% are ‘undertrials’, i.e. people who are currently on trial or imprisoned on remand while awaiting trial. Most of the prisoners are “undertrials” because, despite the Supreme Court’s order, relatively little is done to distinguish them from criminals, and this aggravates the congestion problem. As the jails are getting increasingly overcrowded, they cost the government a significant chunk of the taxes to maintain the same, and hence the government needs a solution for the growing population of jails[8].

Secondly, both criminal law practitioners and scholars would agree incarceration has severe negative effects on the life of inmates, which severely impacts their acceptance into the society, post their sentence. Research reveals that ex-offenders make less money, have poorer labour market affiliation, and have more unstable personal relationships and these outcomes are not just a selection effect but also reflect a treatment effect, such as the stigma associated with having served time in jail or the loss of human capital resulting from being excluded from the labour market[9]. While the primary purpose of incarceration is to punish the offender, the secondary purpose is to prevent recidivism and ensure rehabilitation, but the impacts that incarceration leaves on the life of offenders make it more likely for them to relapse and that becomes a problem that can be solved by community service. Since it also isolates individuals from society and robs them of a sense of direction and meaning in life, the carceral environment proves to be prejudicial to mental health. Furthermore, the horrifying circumstances that are frequently found in jails and prisons, including as overcrowding, solitary incarceration, and regular exposure to violence, may have unfavourable impacts on the mental health of the convicts. A lot of prisoners develop mental health disorders like depression, PTSD, emotional withdrawal, substance use disorders, and suicidal tendencies, and the death statistics of prisons in 2022 affirm the case[10].

Thirdly, the last issue with incarceration is specific to convicts of petty crimes; when these convicts are sent to jail, they are exposed to hardened criminals, and the exposure is constant. This may end up influencing them and they might tend to commit graver crimes once they are released, and the same has been observed in several cases[11].

Taking into consideration these issues and other problems with incarceration, the implementation of community sentencing as an alternative punishment is imperative. It can alleviate the overcrowding in jails, reduce government expenditure, and provides a rehabilitative approach that centers around the reintegration of offenders into society. This novel approach can mitigate the negative impacts of incarceration, reduce recidivism, and promote mental well-being among offenders. The addition of community sentencing can indeed be a game-changer, fostering a more humane and effective criminal justice system in India.

IMPLEMENTATION OF COMMUNITY SERVICE

“Laws without enforcement are just good advice.”

– Quote often attributed to Abraham Lincoln.

Community service will just be a law in the books if it is poorly implemented. The legislature has taken the first step by bringing the vital law in BNS but it is the implementation that has to be the primary objective. But, just like the benefits of community sentencing there are a lot of expected hurdles that can come in the path of effective implementation.

Firstly, there is no body been assigned to supervise the implementation of community sentence. In the current scenario, where the punishment assigned does not separate the offender from the society and they have to be continue being a part of society while performing their sentence it is essential for a supervising authority to be present. The same has been seen in other countries implementing community service such as Britain, USA and Spain. In a study on implementation of the working of community service, it was found that the absence of a supervising branch has been hindering the fulfilment of community service as a sentence. As a consequence, the task of supervising fell into the hands of the overworked local police, creating lengthy waiting rows for the convicts and often a waiting period lasting for more than an year. On the other hand, countries on the likes of Britain that indeed have a specialised cell of the police assigned the task of supervision, have displayed excellent implementation aptly attested by the statistics mentioned in the study[12].

Secondly, there is no concrete precedent for the judges to refer to. The types of crimes that allow community service as punishment are very diverse where every case has a unique factual matrix, and there is no guidance regarding how to implement them, so the duty of effective and smart implementation of the law falls into the hands of the judiciary to ensure complete justice. While deciding essentials like nature, duration etc of the sentence the judiciary has to keep in mind that a huge chunk of these petty crime offenders coming from the lower economic strata of the society, cannot afford to fulfill long duration of service or nature of work that requires them to spend for the conveyance or carry out the task on their own[13].

Thirdly, there is a need for prior police sensitization to ensure that the police know how to deal with the offenders. This can be better explained with an example – imagine there is a person sentenced with two months of community service and the person comes late, the police officer assigned supervisor should not be aggressive or hostile towards the criminal. In the Indian society the police is used to treating the inmates in an aggressive and push-over way but the same won’t work well with community service. Other aspects such as the benchmark of what is acceptable and what is not, the ramifications of not being able to fulfil the task etc are also topics that need to addressed.

These are just a few of the many issues that will become clear once the law is put into place. All of these problems need to be carefully thought out and solved, because ignoring them will make the law useless. Community service must be backed up by strong oversight systems, clear court rules, and police officers who are aware of the issue in order for the law to do what it’s supposed to do. Without addressing these important points, the law could end up being another example of well-meaning legislation that is never actually put into effect.

CONCLUSION

The introduction of community service as a form of punishment under the Bharatiya Nyaya Sanhita, 2023 marks a significant evolution in India’s criminal justice system. Petty offenders, first-time offenders, and non-violent criminals can find hope in community service, as it aims to balance the judicial system by reintegrating offenders into society and improving it simultaneously. Still, for this law to be effective and long-lasting, it must be implemented successfully. As Martin Luther Jr. once said, “Law and order exist for the purpose of establishing justice, and when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress.” The same should not be the fate of community service. There is a lot to learn, and India may learn from other nations that have successfully implemented community service, but it is imperative to modify these strategies for the Indian environment. Given India’s distinct socioeconomic, cultural, and demographic makeup, a one-size-fits-all strategy will not work. Community service can be made more efficient, meaningful, and long-lasting by addressing local problems and needs. The sentence when done right, has the potential to significantly and favourably alter the criminal justice system in India and it can be the catalyst for a positive change in our society.

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.

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[1] Frederick J. Reilly, Is Corporal Punishment Necessary?, 111 Journal Of Education 63 (1930), http://journals.sagepub.com/doi/10.1177/002205743011100303 (last visited Jul. 25, 2024).

[2] Bharatiya Nyaya Sanhita 2023, § 202, No. 45, Acts of Parliament, 2023 (India).

[3] Bharatiya Nyaya Sanhita 2023, § 209, No. 45, Acts of Parliament, 2023 (India).

[4] Bharatiya Nyaya Sanhita 2023, § 226, No. 45, Acts of Parliament, 2023 (India).

[5] Bharatiya Nyaya Sanhita 2023, § 303 (2), No. 45, Acts of Parliament, 2023 (India).

[6] Bharatiya Nyaya Sanhita 2023, § 355, No. 45, Acts of Parliament, 2023 (India).

[7] Bharatiya Nyaya Sanhita 2023, § 356 (2), No. 45, Acts of Parliament, 2023 (India).

[8] V. M. Gouri, Out of the Cell: Introduction of Community Service as an Alternative Form of Punishment in India, 4 JUS CORPUS L.J. 195 (2023).

[9] Signe Hald Andersen, Serving Time or Serving the Community? Exploiting a Policy Reform to Assess the Causal Effects of Community Service on Income, Social Benefit Dependency and Recidivism, Journal of Quantitative Criminology 537, 540-541 (2015).

[10] Supra (10)

[11] Ester Blay, Work for the Benefit of the Community as a Criminal Sanction in Spain, 55 PROB. J. 245 (2008).

[12] Rob Allen, Changing Public Attitudes to Crime and Punishment Building Confidence in Community Penalties, 55 PROB. J. 389 (2008).

[13] Richard J. Maher & Henry E. Dufour, Experimenting with Community Service: A Punitive Alternative to Imprisonment, 51 FED. PROBATION 22 (1987).

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Author: Vidisha Yadav

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