THE ROADBLOCKS TO COMMUNITY SERVICE AS PUNISHMENT AND HOW TO OVERCOME THEM BY - K.BHARATH CHANDRA & PROF. (DR.) K. SITA MANIKYAM
THE ROADBLOCKS TO COMMUNITY SERVICE AS PUNISHMENT AND HOW TO
OVERCOME THEM
Abstract:
? Community service as a
form of punishment under the Bharatiya Nyaya Sanhita (BNSS) is a new form of
punishment recognised under law. This article discusses the rationale behind
its introduction, the legal provisions governing it, challenges in its
implementation, and potential solutions to ensure its effectiveness. By
analyzing judicial precedents and practical concerns, the article suggests a
structured approach to executing community service as a viable alternative to
incarceration for petty offences.
I. Introduction:
1. Understanding
Community Service as a Punishment under BNSS:
? “Community service” has
been formally recognized as a punishment under the BNS [3]. Judicial Magistrates
of both First and Second Class have the discretion to impose community service.
The provisions governing this are outlined in Section 23 of the BNSS[4]
? Bharathiya Nyaya
Sanhitha (BNS i.e., new criminal law) does not provide a comprehensive
definition of community service but states that it must benefit society without
remuneration. This raises concerns about the clarity and execution of such
punishment.
? Interestingly, the BNSS
does not define community service in a general sense. However, the explanation
appended to Section 23 of BNSS states that community service refers to work that
the court may order a convict to perform as a form of punishment. The service
must benefit society, and the convicted individual is not entitled to any
remuneration for this work. This definition itself raises certain questions.
2. Rationale Behind
Introducing Community Service:
? The introduction of
community service stems from India's efforts to address concerns raised by the
United Nations regarding prison reforms. Overcrowding in prisons has been a
long-standing issue, especially in central jails like Tihar. In many instances,
individuals convicted of minor offences are housed alongside those serving
sentences for graver crimes. This environment can lead to negative influences,
increasing the likelihood of recidivism even after release. The introduction of
community service as a punishment seeks to address these issues in two key
ways:
1.
Reducing Overcrowding in Prisons – By diverting minor
offenders away from imprisonment, the burden on the prison system is
alleviated.
2.
Rehabilitation and Reform – Community service
serves as a rehabilitative and reformative measure, allowing offenders to
contribute positively to society instead of being incarcerated.
? The legislature has also
considered the economic implications of criminal law. Over time, community
service as an alternative punishment could prove to be more cost-effective,
reducing the economic burden associated with maintaining an ever-growing prison
population. High rates of recidivism and prison overcrowding have necessitated
alternative sentencing mechanisms. Community service aims to:
1. Reduce overcrowding in
prisons by diverting minor offenders away from incarceration.
2. Serve as a
rehabilitative measure that promotes reintegration into society.
3. Reduce economic costs
associated with maintaining a large prison population.
II. Can the community service be implemented in every
criminal case.?
? Section 4(f) of BNS
includes community service as a form of punishment for six specific petty
offences:
1. Public servant
unlawfully engaging in trade (Sec. 202)
2. Non-appearance in
response to a proclamation (Sec. 209)
3. Attempt to commit
suicide to compel or restrain a public servant (Sec. 226)
4. First-time conviction in
petty theft of less than Rs. 5000 (Sec. 303(2))
5. Misconduct in public by
a drunken person (Sec. 355)
6. Defamation (Sec. 356(2))
So, the answer is No. Community service can
be imposed only for the aforementioned crimes as per BNS.
III. Concerns and Challenges:
? Despite its potential
benefits, there are certain concerns regarding the implementation of community
service as a punishment. One major issue is the lack of a proper framework for
enforcing community service across the country. As of now, only few countries
have implemented community service as part of judicial sentencing, but there is
no uniform structure governing its execution.
? A notable precedent for
community service as a punishment was set for the first time in India by the
Apex Court in the case of State Tr. P. S. Lodhi Colony, New
Delhi v. Sanjeev Nanda[5] . In this case, a
20-year-old boy was convicted of causing an accident that led to the deaths of
six people. As part of his punishment, the Supreme Court directed him to
perform community service for two years, under the supervision of the Ministry
of Social Justice and Empowerment. If he failed to comply, he would have to undergo
simple imprisonment for two years.
? This case serves as a
significant example of how community service can be integrated into the legal
system. However, to ensure its effectiveness, a well-defined framework must be
established, addressing concerns such as monitoring, enforcement, and
accountability.
Iv. Challenges That Are Faced In Implementing
Community Service:
? There are no proper guidelines and structured process for
implementing community service, raising questions about who will monitor
convicts, the duration of service, and enforcement mechanisms.
? Courts may struggle with ensuring proper supervision
without adequate institutional support. Without a well-defined monitoring
system, there is a risk that convicts may not comply with service orders
effectively. On whom accountability is to be fixed in such cases.
? Moreover Full-day service could deprive convicts of their
livelihood, impacting their families. Therefore, economic and Social Considerations of the convict is to
be considered.
V. Solutions for Effective Implementation:
? To ensure the success of
community service as a punishment, courts should adopt the following measures:
1.
Assessing Convict’s Skills: The nature of service
should align with the convict’s abilities. For instance, an uneducated convict
with experience in manual labour can be assigned tasks such as sweeping roads.
2.
Time-Bound Execution: Instead of full-day
service, a structured approach like three hours per day ensures convicts can
sustain their livelihood while fulfilling their punishment.
3.
Supervision Mechanism: Authorities such as
the Municipal Commissioner (if the convict is asked to sweep roads in municipal
limits) can oversee the convict’s work and submit daily reports to the court.
VI. Hypothetical Case Study:
? Lets take up a situation where ‘X’ commits an offence punishable under
Section 303(2) BNS, where the value of the stolen property is less than Rs
5000/- and the guilt of accused is proved by the prosecution. Now what the
magistrate is supposed to do??
As per S. 303 BNS. (Theft):
(1) xxx
(2) Whoever commits theft shall be punished with
imprisonment of either description for a term which may extend to three years,
or with fine, or with both and in case of second or subsequent conviction of
any person under this section, he shall be punished with rigorous imprisonment
for a term which shall not be less than one year but which may extend to five
years and with fine:
Provided that in cases of theft where the
value of the stolen property is less than five thousand rupees, and a person is
convicted for the first time, shall upon return of the value of property or
restoration of the stolen property, shall be punished with community service.
? So, if the Court finds that the stolen property
is valued less than Rs 5000/-, the above proviso to Section 303(2) of the
BNS mandates community service for first-time offenders upon
restitution/restoration of property. This means that, in the present case, with
regard to the offence under Section 303(2) of the BNS, the word “shall” in the proviso
to subsection (2) of Section 303 indicates that the Court has no discretion except to
impose community service as the sole punishment.
? Sometimes, the court does not know if the
offender is a first-time offender or if he has already been involved in
criminal activities. In such cases, how court is supposed to proceed further.
In such cases :
(i)
The better course of action is that, once the guilt of the accused is proven,
the Court should direct the Station House Officer (Police) to immediately
provide information on the accused's antecedents by verifying criminal records
through CCTNS[6] and other available records. This will help ascertain
whether the offender is a first-time offender, providing a clear picture of
their criminal history
(ii) Another important tool is the ICJS[7]. This platform
facilitates the transfer of data between various components of the criminal
justice system. ICJS connects the police, courts, jails, forensic labs, and
prosecution. A separate login will also be provided to the police at the
Station House Officer level. ICJS helps ensure that all important information
related to a case is available to the courts in a timely manner. Through this
system, we can access the details of prisoners across India.
(iii) In no time, the concerned police officer can
access both CCTNS and ICJS to submit their report, based on the search, to
ascertain if the accused has any past criminal history. The information
provided by the police enables the court to determine whether the offender is a
first-time offender or not, which is crucial for deciding on the implementation
of community service.
? Regarding
the implementation of Community Service, there are currently no established guidelines
detailling how it should be conducted/implemented?; who will monitor the
convict?; the duration; or the authority responsible for its execution?; so
on and so forth. But as Magistrate has no discretion in the instant case except
to impose community service and the Court cannot simply overlook or avoid this
obligation solely due to the absence of specific guidelines in the statute for
implementation.
? It is a settled law that when a statute or code does not provide
specific procedural guidance, courts must devise or adopt a reasonable procedure that aligns with the statute's objectives
and principles of justice and this approach upholds fairness while respecting
legislative intent.
? Now, turning to the exercise of implementation of Community Service in
an effective manner, the convict can be asked about his working skills to
assign him a proper task/work for the benefit of society. For example if the Convict is uneducated and says that he is a coolie or sweeper etc, we can
come to an understanding that he has some familiarity with sweeping.
? In imposing community service, Court must consider that the convict
will receive no remuneration, as the service is intended as a kind of
punishment in terms of explanation appended to section 23 of BNSS. As such, engaging the convict in full-day community service could deprive his
family of essential income, as his dependent family members relies on his work
for their livelihood. At the same time, implementing community service without
taking the convict’s circumstances into account, and solely at the Court’s
discretion, could have adverse consequences.Therefore, the Court after a
comprehensive analysis of the facts and
circumstances, whatever period deems it appropriate to impose Community Service
in a feasible and
workable manner may be mentioned.
? Instead of mandating full-day service, if the convict is directed to perform community service for three
hours each day or alike, that kind of arrangement allows the convict to work as a labourer or
seek other employment for the remaining hours, ensuring that he can continue to
provide bread and butter to his family.
? For instance, if the convict is ordered to perform
sweeping duties on the arterial roads or streets of local area in the
municipality from 6:00 AM to 9:00 AM for a period of two months, under the
supervision of the Municipal Commissioner of that area, such service will
contribute to cleaner streets, reduce pollution, and improve public hygiene,
thereby benefitting society at large.
? Moreover, through this Community
Service, the convict will recognize the
significance of this alternative to imprisonment, which is legally recognized
as a reformative approach. Rather than serving a prison term, mingling with
hardcore criminals, engaging in service on the roads (community service), will
give him a real opportunity for personal reformation.
? The
Court should hope and trust that the procedure adopted by it will meet both
ends, as it will benefit society at large and also aid in the convict’s
reformation, helping him emerge as a responsible citizen apart from instilling habits of societal responsibility.
? It is needless to state that sub-section (5) of
Section[8] of the BNS empowers the Court to
impose imprisonment in case of default of
community service by the convict (i.e., if the convict fails to complete the
assigned community service); however, such imprisonment so imposed in default
of Community-Service
shall be simple.
? Apprisal to the Convict :
1.
Convict
shall be apprised of his right to prefer
an appeal against the judgment, in case of any grievance. Convict shall also made aware of his right to legal aid to assist with the
appeal process, if he wishes to prefer.
2.
Convict
shall be informed of his right to receive the true copy
of the Judgment, free of cost( Conviction Judgment)
3.
It
shall be further informed to the convict that for the Community service
performed as a form of punishment, the convict shall not be entitled to any
remuneration. (Explanation appended to section 23 of BNSS )
? Direction to Authorities
concerned :
1. Say for example, if the convict is asked to sweep roads in the
municipal limits of Kanigiri, then the following directions appears feasible.
2. The Municipal Commissioner, Kanigiri, shall submit or cause to be
submitted a daily attendance and work report of the convict, along with
photographs, (either physically or through electronic mode) to this Court.
3.
It is needless to state that in the
event of non-compliance by the convict, regarding the
community service as directed by this Court, Municipal Commissioner, Kanigiri,
shall without any delay, inform this Court, for necessary action.
4.
It is also needless to state that the Municipal
authorities shall provide the convict with all necessary tools and equipment
required for cleaning and sweeping.
5. The Municipal Commissioner of Kanigiri shall, under his supervision or
that of a designated municipal official, ensure that the community service
ordered by this Court is implemented effectively. The convict is not entitled
to any remuneration for the work done by him and as such Municipal
Commissioner.
? Directions to Accused/Convict :
1.
The convict shall furnish a Bond of Undertaking for Compliance with
Community Service Order apart from furnishing his address particulars and
contact number.
2.
Upon finishing the daily work (community service)
by 09:00 AM, the convict shall report to this Court on
or before 5 PM everyday, with a copy of attendance record from the municipal
officials of Kanigiri and sign in the register maintained by the superintendent
of this Court, which will be opened by the superintendent of this Court, by
virtue of this Judgment, for monitoring compliance.
3.
Since Community
Service is a form of punishment, the convict shall
not leave the jurisdiction of this Court, until the completion of community service period, without the leave of the Court.
? Special Directive to
Police :
The SHO of Concerned Police Station may be directed
to perform periodic, random check-ins with the Municipal Commissioner (in the
given hypothetical case study) or the designated supervisor of that particular
Municipality. This is to ensure effective implementation of the Court's
judgment without intruding into the convict's privacy by the police and at the
same time, enabling the police to stay informed of the convict's compliance
without direct monitoring.
? Directions to the
Office/Section of the Court:
1. Office shall specify all the aspects clearly in
the conviction warrant of the convict so as to enable the jailer concerned to
have proper clarity on the kind of conviction, this court imposed.
2.
The
Court shall direct its office to furnish a true copy of the Judgment of the
case to the convict as contemplated under Rule 72 of Criminal Rules of Practice and Section 404 of BNSS, forthwith
on pronouncing judgment, free of cost and to receive the acknowledgment of the same from convict.
3.
The
Court shall direct its office to obtain Bond of Undertaking from the
accused/convict for Compliance with Community Service Order, for its effective
implementation.
4.
The
Court shall mark the copy of this Judgment to SHO, concerned , the Municipal
Commissioner Kanigiri for effective implementation apart from addressing a
letter.
The above directions are merely illustrative and
suggestive. The court, in implementing community service, should take all
necessary precautionary steps to ensure that the community service is carried
out effectively, benefiting both the convict and society.
VII. Bond of Undertaking for Compliance with Community
Service Order:
? Even no proforma of Bond
of undertaking is contemplated anywhere in the BNSS but through this article,
keeping the intent of legislature, the following bond is prepared to meet the
requirements until guidelines are framed and necessary changes are made to
existing criminal rules of practices of the respective states :
______________________________________________________________________
Model- Bond of Undertaking for Compliance with
Community Service Order
BEFORE THE COURT OF JUDICIAL MAGISTRATE I CLASS:: (Name
of the Court)
Case
No.:
__________
Convict's Name: __________
Father’s Name: __________
Address: __________
Age: __________
Convict's Name: __________
Father’s Name: __________
Address: __________
Age: __________
Conviction
Details:
Offence punishable under Section __________ of the BNS
Bond for Compliance with
Community Service Sentence
I,
__________ (Name of Convict), aged _____ years, son of __________, residing at
__________, do hereby solemnly affirm and undertake as follows:
1. That I have been
convicted under Section ___________ of the BNS and sentenced by this Honorable
Court to perform community service for a period of _______________(specify period
i.e, days or months), from ___________________(from date to till date --/--/2025
to --/--/2025)____________________________________, by ( for ex: cleaning and
sweeping the arterial roads and streets (nature of work allotted by court)
) from ______ AM to __________ AM/PM,
under the supervision of the ( concerned Authority . For ex : Municipal
Commissioner, if the convict is asked to clean roads in the municipality)
2. That I shall duly comply
with this sentence by reporting for duty daily at the designated time and
location, equipped with the necessary work implements provided by the concerned
authorities.
3. That I understand my
obligation to appear before this Honorable Court by 5:00 PM each day upon
completion of my duties, with a copy of my attendance record signed by the
supervising (Municipal) officials. I shall also sign the register maintained by
the Superintendent of this Court, specifically opened for monitoring compliance
with this Judgment.
4. I acknowledge that, as
per the Explanation to Section 23 of the BNSS, I am not entitled to any
remuneration for the community service performed under this sentence, as it is
part of my punishment.
5. I am aware that in the
event of non-compliance with any of the directives in this order, the (ex: Municipal
Commissioner, ********) will promptly inform this Court. I further understand
that failure to comply with these community service requirements shall result
in my undergoing simple imprisonment for a period of _________days, as
stipulated in Section 8(5) of the BNS for offences punishable under Section
______________(mention the section for which conviction is pronounced) of the BNS.
6. I fully understand the
terms and conditions of this bond and undertake to fulfill the obligations of
this community service order faithfully and without any default.
Signature
of Convict:
Date:
Date:
Signature of Presiding Officer/Magistrate
VIII. Conclusion:
? Community service as a
form of punishment presents a progressive alternative to incarceration,
particularly for minor offences. However, its successful implementation depends
on structured guidelines, coordination between judicial and administrative
authorities, and robust monitoring mechanisms. Courts must ensure that
community service aligns with the principles of justice and rehabilitation,
creating a balance between punishment and reform. By refining implementation
strategies, India can effectively integrate community service into its criminal
justice system, benefitting both offenders and society at large.
[1] Research Scholar, Dr. B.R. AMBEDKAR COLLEGE OF LAW,ANDHRA
UNIVERSITY& Civil Judge(Junior Division) Kanigiri, Prakasam District,
Andhra Pradesh
[2] Principal,
Dr. B.R. AMBEDKAR COLLEGE OF LAW ANDHRA UNIVERSITY, VISAKHAPATNAM
[3] BHARATIYA
NYAYA SANHITA, 2023 (Act 45 OF 2023)
[4] Bharatiya
Nagarik Suraksha Sanhita (Act 46 of 2023)
[5] AIR
2012 SC 3104
[7] Inter Operable Criminal Justice System (ICJS)
[8] sub
section (5) of section 8 BNSS : If the
offence is punishable with fine or c ommunity service, the imprisonment which
the Court imposes in default of payment of the fine or in default of community
service shall be simple.