Authored By: Priyanshi Ahuja
NIMS University Jaipur
Abstract
The criminal justice system in India has long been based on the use of imprisonment as the main form of punishment even in cases where the offence committed is minor and non-violent. The practice has led to crowded jails, jail overdetention and under-provision of rehabilitation to offenders. The passing of the Bharatiya Nyaya Sanhita, 2023, is an active effort to bring criminal law into the modern space of providing a “community service” as an acknowledged punishment. This article critically reviews the growth of the community service within the BNS and determines whether it will be able to reshape the Indian criminal jurisprudence into a reformative model instead of a punitive model.
The paper will present arguments based on theories of punishment, judicial precedents and comparative experiences in the United Kingdom and United States that community service is able to humanise the process of sentencing, as well as alleviate over-criminalisation, were there are clear guidelines, judicial sensitivity and effective mechanisms used in its implementation.
Keywords: Community service, Reformative justice, Alternative sentencing, Criminal law reform, Bharatiya Nyaya Sanhita (BNS)
Introduction
Community Service is identified by Section 4(f) of the BNS as a separate type of punishment that is methodological with death, life imprisonment, imprisonment- rigorous or simple, Forfeiture of property and fine. Section 23 of BNSS provides an explanation which defines community service as quoted: “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 community service can be arranged in a local organization, which may be a place of worship, school, or a non-profit organization. In India criminal punishment has always been characterized by punishments that are characterized by imprisonment and fines with imprisonment being regarded as the best form of deterrence. This predominantly colonial system was retributive and controlling, rather than rehabilitative and social reintegrative. Community service may be a new term to us, but it has been lurking in the shadows and it has existed in the Juvenile Justice (JJ) Act.
However, as time passed by the shortcomings of the imprisonment-focused criminal justice system have been revealed in ever greater ways. The Indian jails are highly overcrowded; a greater number of inmates are undertrial and rather are imprisoned in short sentences that have not resulted in any meaningful reform but have had negative social and economic effects. These systemic issues have contributed to the courts reconsidering the rationale of punishment in criminal justice, be it by scholars and policymakers. It is on such a background that Bharatiya Nyaya Sanhita, 2023 is a watershed moment in the establishment process of Indian criminal law. It is one of the most enlightened aspects since it formally recognizes community service as a punishment.
This article will examine the issue of whether the community service expansion under the BNS is a real move to reformative justice or just a symbolic reform but no substantial substance.
Community service under Bharatiya Nyay Sanhita, 2023
The Bharatiya Nyaya Samhita introduces community service as an alternative mode of punishment, particularly for minor and non-violent offences and first-time offenders. This form of punishment is designed to promote accountability while preserving the offender’s social and economic ties. It requires offenders to perform unpaid work for the benefit of the community as part of their sentence. The idea in this reform suggested by the legislation seems to be founded on proportionality and pragmatism. The BNS recognizes that imprisonment especially within the short-term durations is generally highly harmful than helpful because it disrupts livelihoods, households, as well as social connections. Community service offers a sentencing instrument to the courts which offers the freedom to give a sentence compromising with the purpose of rehabilitation.
In recent times, a new movie titled Sitaare Zameen Par and directed by Amir Khan has been released and shown in theatres. The plot is based on the protagonist, a coach of a basketball team, who is punished by a judge on the penalties of driving under the influence and an accident with a police vehicle. Nonetheless, rather than adding a traditional custodial punishment, the court orders him to complete community work by giving up his knowledge as a coach to adults with a down syndrome. He at first sees the order as a punitive measure and an unwanted burden but he undergoes gradual moral change and compassion by interacting with his team in a meaningful way. In addition, the introduction of community service is indicative of a bigger move to overcrowd prisons and make the imprisonment to be a preserve of serious and violent offences. The BNS aims at harmonizing criminal punishment with the modern social reality and constitutional values by expanding sentencing options.
A Shift from Incarceration (Imprisonment) to Alternative Sentencing
- Constraints of a System Focused on Imprisonment
In Indian criminal justice, the excessive use of the penal system has led to serious institutional flaws. Overcrowding is another common problem that is manifested in prisons and inmates serve far beyond their allocated number of cells. Article 21 of the Constitution guarantees personal liberty, which is endangered severely by the fact that a large number of the prisoners are undertrials, who are yet to get a verdict. The majority of minor offenses shouldn’t result in short-term confinement since this will increase criminal activity rather than decrease crime. Prison disruption is frequently linked to mental harm, social discrimination, and job loss, particularly for those who are economically disadvantaged in society. The Supreme Court has already stressed numerous times that incarceration cannot be administered mechanically and it should be driven by the principles of fairness and proportion.
- Community Service as a Comprehensive Alternative
Community service is a fair substitute for the drawbacks of incarceration or simply imprisonment. Although community service prevents the long-term social implications of imprisonment, it ensures offenders are held accountable for the consequences of the crime committed by ensuring offenders are made to understand the gravity of the consequences through the following manner: This is a new approach to sentencing that reflects an emphasis on rehabilitation over punishment. Community service is addressing and treating an individual who has the capacity to change and be reintegrated into society, as opposed to things and objects to be punished. Accordingly, the expansion of community service by the BNS is a major departure from traditional punishment strategies.
- Community Service and the Reformative Justice Model
The Reformative theory of punishment focuses more on Rehabilitation, Social Reintegration and Correction, than on Retribution. According to this theory, Criminality is a social phenomenon and not just a morally defective individual. Rehabilitation can occur through a constructive intervention. The Philosophy of the Reformative Approach to Punishment has been supported by Indian Courts for many years, as the Supreme Court stated in the case of Mohd. Giasuddin v. State of AP “The Object of Punishment is to Reform the Offender and Reintegrate the Offender as a Responsible Member of Society.”
Community Service is a very close match to the Reformative Approach. It allows an Offender to acknowledge their actions, while at the same time providing a service that is beneficial to the Community. In contrast to being imprisoned, which isolates the offender, Community Service promotes Empathy, Engagement and Awareness of their Community. The BNS (Bharatiya Nyaya Sansthan) has taken steps to legitimize the use of Community Service as a form of sentencing in an attempt to achieve a Reformative Justice approach to sentencing. Instead of merely responding to criminal behaviour in a punitive manner, the development of this mechanism is an attempt to humanize criminal justice.
- A Comparative Analysis: United Kingdom and United States
The UK and the US also have strong community service ecologies, with the primary difference being the formality of their structures, with the UK relying on national charities such as the Royal Voluntary Service and government portals (GOV.UK, NCVO) to fulfill a variety of functions, though the US serves criminal justice, social good, and personal development with the use of the community service. US tends to have bigger programs on the federal level and the local initiatives, whereas the UK tends to use the established bodies on the national level and provide coordination.
United Kingdom (UK):
Target: Good national infrastructure including agencies such as NCVO, Volunteering Matters, and Royal Voluntary Service.
Types: Offers skilled volunteering (legal, IT), flexible roles, trustee placements and youth programs, which are usually supported by GOV.UK.
Legal: Community service may be a court ordered option (e.g. removal of graffiti) in lieu of prison.
United States (US):
Emphasis: A combination of federal (AmeriCorps, Peace Corps), state, and local programs, and an infinite number of non-profits.
Forms: Offenders forced by court to community service, school-imposed, and unrestricted volunteering towards social causes.
Legal: This is a form of an alternative sentence which is usually given to the offenders to repay their debt to the society.
Critical Similarities and Differences:
Similarities: Community service in both countries is viewed as an unpaid community benefit work, which is done within schools, courts and on larger social purposes.
Differences: The US boasts of high profile nationalized federal volunteer programs (AmeriCorps) and the UK boasts of well-coordinated national charities and government portals.
- Challenges and concerns in community service in India
The spread of community service through the BNS is however challenged by a number of issues despite its potential. Lack of sentencing guidelines that are well elaborated might lead to irregularity in the application of sentencing guidelines across courts. It is also a danger that community service can be disproportionately helpful to socially or economically advantaged offenders to the level of raising doubts under Article 14 of the Constitution.
Also, to be effective, the implementation must have administrative infrastructure to supervise and monitor, which is likely to be inadequate in most areas. In the absence of genuine enforcement, it will turn to be seen as a soft or symbolic alternative to a fine and not a serious substitute of imprisonment.
Recommendations
To make sure that community service can serve the reformative purpose, a number of safeguards are necessary:
- Defining sentencing guidelines in terms of eligibility and length.
- Principles of judicial training on alternative sentencing.
- Institution of provincial level surveillance bodies.
- Combination of community service and the aims of restorative justice.
This involves regular review of sentencing outcomes. These steps may assist in making sure that it is fair, consistent and that people trust the use of community service as a punishment.
Conclusion
The legalization of community service as a punishment in the Bharatiya Nyaya Sanhita, 2023 will be a deliberate and long-overdue change of criminal justice philosophy in India. The legislature has realized that punitive imprisonment has its limits and thus by abandoning its over-reliance on incarceration, the legislature has accepted that punitive imprisonment has certain constraints especially on minor and non-violent offenders. Community service is a chance to reconsider punishment as an agent of isolation rather than a method of accountability, correction and reintegration into society.
As evidenced in this paper, community service is very much in line with the reformative theory of punishment that has been long supported by Indian courts. It also allows crime representatives to experience the consequence of their actions in a positive way, yet they do not lose their social position. The cases of the United Kingdom and the United States also show that community service can be a good and possible alternative to custodial sentences with proper organization and management.
Nevertheless, the success of this reform will be finally determined by the implementation. In the absence of proper sentencing rules, proper systems of monitoring and judicial discretion, community service may either be viewed as a patchy form of punishment or a soft alternative to punishment. The urgent requirement is also to make sure that its use does not strengthen the existing social inequalities and violate the principle of equality before law.
Through care, transparency and institutional support, community service can result in humanisation of Indian criminal justice, reduction in the prison overcrowding as well as meaningful rehabilitation. The growth of community service under the BNS can, however, not be regarded as a goal in and of itself, but rather as the start of a larger process of transformation towards a criminal justice system based upon reform instead of retribution and dignity instead of deprivation.
