Introduction
The Bharatiya Nyaya Sanhita, 2023 (“BNS”) has brought a significant reform in the Indian criminal justice system by introducing community service as a viable option for punishing minor offences. Effective from July 1, 2024, the BNS has officially replaced the Indian Penal Code, 1860 (“IPC”). Community service, or community sentencing, is an alternative form of punishment where the offender has to work without pay for the benefit of society. This aligns with the reformative theory of punishment, which emphasises rehabilitating offenders to reintegrate them into society, and the principles of restorative justice, which focus on repairing the harm caused by criminal behaviour through reconciliation with the community and, where possible, the victims. These principles make community service a progressive shift in the Indian criminal justice system.
This blog looks into the feasibility of implementing community service as a punishment in India. In line with this, it examines the concept of community service as provided under BNS and other relevant laws, and delves into other jurisdictions across the globe. The authors eventually throw light upon potential shortcomings in its implementation while also putting forward certain recommendations.
Development of Community Service in India
Several decades ago, the Indian Penal Code (Amendment) Bill, 1978 marked an initial effort to include community service as a penalty under the IPC. The report of the Indian Jail Committee 1980-83 highlighted the flaws in imprisonment terms and recommended adopting alternatives such as community service. Further, community service was recommended to be implemented in the Malimath Committee Report and the Law Commission’s 156th report, however, these suggestions were never put into practice.
Yet, it is fascinating to observe that courts have given community service as a punishment under Section 482 of The Code of Criminal Procedure, 1973 (“CrPC”), which gives the High Courts inherent powers to secure the ends of justice. For instance, in July 2024, the Delhi High Court directed two people accused of outraging the modesty of their neighbour’s wife to do community service at Gurudwara Rakab Ganj Sahib for a period of one month.
The Indian Courts have often emphasized the importance of community service as an effective form of punishment. In the case of Babu Singh v. State of Uttar Pradesh, the Supreme Court pointed out that justice should concentrate more on restorative measures like community service and personal development, and that its goal should be reform rather than punitive action. In Sunita Gandharva v. State of M.P (2020), the Madhya Pradesh High Court, while discussing the scope and extent of bail conditions, said that Section 437(3) of CrPC allows community service to be used as a condition of bail. It was also said that community service provides social and cognitive benefits and can be used as an alternative to both pre-trial and post-trial reforms.
Prior to the introduction of BNS, the sole provision for community service in India was under Section 18(1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which allows for community service for child offenders. In a recent case in Pune, a minor driving a Porsche caused a fatal accident resulting in two deaths. The Juvenile Justice Board initially sentenced him to 15 days of community service where he was required to work with traffic police and write an essay on road accidents. This decision faced widespread criticism, with demands for a harsher penalty. Later, the Board revoked this bail order.
In India, overcrowding in prisons is a major issue, and building new facilities would be a burden on the economy. As per reports, the education profile of the convicts in India was found below class X (42.02%), above class X but below graduation (21.84%), graduate (6.41%), and illiterate (26.81%). This means that a significant percentage of the convict population is below class X in terms of education. For young people with potential, imprisonment can be very detrimental to future career prospects. In contrast, community service is a more cost-effective and constructive alternative.
Dissecting the Provisions of Community Service in BNS
Community service is defined under Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) as “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”. There is no clarity on the kind of tasks that would be given to offenders, but, depending on their qualifications and skills, tasks may involve public work such as cleaning streets, assisting in social welfare projects, working in hospitals, or participating in environmental conservation activities.
The BNS, under Section 4(f), mentions community service as a type of punishment. It can be given for six offences – (i) Section 202: Public servant unlawfully engaging in trade; (ii) Section 209: Non-appearance in court in response to a proclamation under Section 84 of BNSS; (iii) Section 226: Attempt to commit suicide to compel or restrain exercise of lawful power; (iv) Section 303(2): Theft where the value of the stolen property is less than Rs.5000 and a person is convicted for the first time and returns or restores the value of property; (v) Section 355: Misconduct in public by a drunken person; (vi) Section 356(2): Defamation.
It is pertinent that community service is an alternative punishment for offences under Sections 202, 209, 226, 355, and 356(2) of the BNS, as indicated by the conjunction “or” in these provisions. Interestingly, under Section 303(2) of the BNS, community service is not just an alternative punishment for theft; it is the sole mandatory punishment that the court must impose for this specific offense. Furthermore, the BNS, under Section 8(4) and Section 8(5), mentions the consequences of defaulting on completing community service.
Practices and Perspectives Across Borders
The United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) encourages community service as an alternative option in sentencing and hence makes an offender contribute to society without going to prison. It calls for rehabilitation and social reintegration to ensure offenders take responsibility for action without such confinement.
In the UK, instead of going to prison for small theft, assault or damaging property, the offender may receive a community sentence. It would be in the form of Community Payback, meaning unpaid work, possibly removing graffiti, clearing of wasteland, or decorating public spaces.
In New Zealand, Community work was introduced by the Sentencing Act, 2002. As per Section 55 of this Act, a court may sentence an offender to community work, ranging from 40 to 400 hours, that the court thinks fit. The tasks assigned could include cleaning parks, assisting food banks, or removing graffiti. Moreover, the Probation officers assign tasks based on the offender’s offence, needs, and skills.
In March 2023 a famous American actor and comedian, Pete Davidson, was charged with reckless driving following a collision with a residential structure in Beverly Hills. Davidson was sentenced to 50 hours of community service, 12 hours of traffic education, and a morgue visit to understand the impact of reckless driving on victims.
Challenges and Shortcomings
One key challenge is that the BNSS simply defines community service as any form of work done without remuneration toward the benefit of the community but does not indicate what “benefits the community” means or what kind of work is valid or admissible for purposes of community service.Moreover, the judges are given considerable discretionary powers to decide whether or not to grant community service as punishment. This can bring disparity in sentencing as the same offence could be punished with different sentences based on the discretion of the judge.
The BNS has no clear structure for monitoring the execution of community service. No mandate exists to establish authorities who will monitor the implementation of community service, leading to uncertainty about who will ensure compliance with court orders.
One of the fundamental concerns is the perception of the service itself. It propagates an image of community work as an undesirable activity to be avoided, one that necessitates compulsion. Moreover, a potential misuse of community service could be to use it as a “get out of jail free” card. Thus, if not carefully regulated, individuals might exploit this option to evade appropriate punishment for their actions.
Recommendations and Conclusion
A few important measures can be adopted to improve the effectiveness of community service under the BNS. For instance, specific tasks and outcomes of community service and the term “benefit the community” mentioned under Section 23 of BNSS should be defined and incorporated into clear guidelines to ensure consistency across various jurisdictions.
A monitoring mechanism should be implemented, as present in the UK, New Zealand, and other countries, where probation officers can oversee compliance and ensure that these punishments are executed. Further, public awareness and feedback programs can be organised to highlight the benefits of community service and to change people’s perceptions.
It is fair to conclude that the introduction of community service under the BNS represents a progressive step towards reformative justice. However, its successful implementation would need guidelines, effective monitoring mechanisms, and public awareness to ensure equitable sentencing, prevent misuse, and foster societal acceptance of this alternative punishment model.
This blog is written by Irfan Rashid and Arpit Pandey, BA LLB (Hons.) Student at School of Law, CHRIST (Deemed to be University), Bangalore.