Community Service: A New Perspective to Non-Custodial Punishment in India
Criminal Justice System of India consists of three parts: police, court, and prisons. All of them strive for the rehabilitation and reformation of wrongdoers. In the recent times, alternative forms or non-custodial punishment is being adopted by many countries[ME1] . These alternative forms include verbal sanctions, conditional discharge, status penalties, house arrest, probation, suspended, or deferred sentence, and many more as provided by United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules). One of such alternative recommended by the Tokyo Rules is Community Service Orders.
Community Service order is a type of non-custodial reformative alternative which involves the doing of an unpaid work by the offender for a reasonable period of time by serving the community with the consent of the offender. Criminal law is considered as right to rem, that is, crime committed against the entire society. Community service provides as a correctional nature on part of the offender to return something to the society, and to find solace in the process. Thus, the whole system of community service is said to be benefitting both the offender and the community.
This article discusses the scope of community service to be adopted in India as it is still in the nascent stage where courts are accepting community service as an innovated restorative device and ordering such sentences in furtherance of rehabilitation of offenders.
Problems faced with Imprisonment
One of the main problems with imprisonment is that it is overcrowded. The official data shows that prison to prisoners’ rate for the past few years has been more than 110% with 118.5% in 2019. This means that every prison shall have an average of 118.5 prisoners when the capacity of each prison is 100 convicts. They become a burden on the state exchequer as the state has to release funds to provide basic facilities for them. But, these funds may be utilized for the welfare of the prisoners. Overcrowded prisons do not serve the purpose of imprisonment but leads to number of additional problems. Offenders of petty crimes associate with hardened prisoners and are included towards committing serious crimes. This makes prisons to be considered as ‘school of crimes’ and encourages recidivism rather than deterrence.
The prisons are understaffed with only 69.4% vacancies filled. Understaffed prisons pose more problems to already overcrowded prisons when it comes to management and administration. Due to this, there lies no co-ordination between the jail inmates and jail authorities causing in violence and frequent clashes. Prisoners will not be able to utilize the full potential of facilities that are available for them. Adding on to the existing problems, corruption is prevalent in jails.
The poor state of prisons and the prisoners is another problem. Standard Minimum Rules for the treatment of prisoners provide that each inmate should be provided with minimum floor space, health facilities including nutrition, right to complain about the condition of prisons, and many more. Due to consistent overcrowding of prisons, sanitation and hygiene cannot be maintained. Each inmate does not have minimum floor space which leads to spread of communicable diseases. With no proper health aid provided to prisoners, many die or suffer from various diseases. Mental health of the prisoners is also not given proper consideration which provokes the prisoners to commit suicide very often.
The programmes or activities which are mainly carried on to introduce new life skills to the prisoners and prepare them for the post prison world becomes futile due to minimal coordination between the overcrowded prisoners and understaff. The prisoners will not be able to make use of these activities which are mostly outdated. The purpose of these programmes which is mainly rehabilitation shall not be served.
The whole purpose of punishment as rehabilitation for securing social justice is in danger. Considering the poor condition of prisons, alternative forms of punishment have to be put in place to serve the need.
Community Service models in other countries
A number of Western Countries have adopted community service as an alternative reform and there are many studies as well, which deem that such reformative punishments have helped in rehabilitation of offenders faster than that of imprisonment.
The community service program in the United Kingdom (hereinafter UK) came into force through the report given by Wootton Committee, an advisory council on Penal System in UK, on the need for non-custodial measures, and thus the Community Service Order scheme was introduced in 1973.[i] These orders are found in Powers of Criminal Courts act, 1973. If the community service orders are not followed, then the offender shall be fined, but one cannot be simultaneously made to undergo community service orders and sentencing orders.[ii] In R v. Canfield,[iii] the court of appeal in England has held that if the behavior of repeated offender is favourable even in offences like burglary, he can be awarded community service.
In United States, community service was granted as criminal sanction, only in 1960’s, to female offenders of traffic violation cases as they could not pay fine and ultimately were jailed. Community services was reinforced in Section 3563 of the Comprehensive Crime Control Act, 1984.[iv] Community service programs are granted as probation and an offender shall have to serve between 50 to 200 hours with strict screening by the authorities. The number of hours served by an offender shall depend upon the seriousness of the crime.
United Nations has also considered community service as an alternative to custodial reforms of an offence in United Nations Standard Minimum Rules for Non-Custodial Measures. Community service can be a reformative form of punishment for drug abusers who are at the final stages of their rehabilitation but it is not a suitable step for those who cannot handle themselves after drug abuse.
The scheme for community service in Zimbabwe was set up in the 90’s and has been effectively managed and awarded by the magistrates. The cost involved in community service was found out to be one-third of what goes into usual punishment awarded.
Malaysia takes a positive approach towards introduction of community service as one of the non-custodial measures instead of short-term imprisonments. Community service has also been defined in Section 293 of Criminal Procedure Code of Malaysia as a punishment for young offenders who are of the age between 18 and 21.
Present Community Service model in India
Section 53 of the Indian Penal Code, 1860 [ME2] which mentions the types of punishment imposed, which is restricted to fine, imprisonment, and death penalty. The problems of imprisonment as discussed above initiates a discussion on the need for reforms of alternative forms of imprisonment in the Indian Criminal Justice System.
Community service in India is not that prevalent per se and thus there is no policy drafted for the same. Malimath Committee and National Judiciary Academy (hereinafter NJA) report have suggested introduction of community service as an alternative. The seminar report of NJA suggested that community services are suitable form of punishment for avoiding short term sentencing. The Malimath Committee also emphasised that in order for community service to be granted, the duration of imprisonment should be less than 3 years and also minimum and maximum number of hours should be specified. It further advised that community service should be a suitable alternative in case of non-payment of fine as given under Section 64 of Indian Penal Code, 1860 (hereinafter IPC).
Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2000 [ME3] provides community service as one of the forms of punishment if the juvenile is found to have committed the offence. Section 4A of Motor Vehicles Act, 1988 has defined community service as means of an unpaid work which a person is required to perform as a punishment for an offence committed. Community service has been introduced by the Gujarat government in the Prohibition Act. Similarly, Andhra Pradesh government has also presented a draft before the Central Government for ratification of the Andhra Pradesh Community Service of Offenders act, 2003. Government of Kerala has also proposed for the same where community service shall be awarded to offenders sentenced to maximum of three years.
Whether Community Service will be efficient in India?
A new exclusive section for community service was proposed in the Indian Penal Code (Amendment) Bill, 1978 (hereinafter bill) in addition to proposing inclusion of community service as a form of punishment in Section 53 of IPC. [ME4] Section 74A of the bill proposed that any person above eighteen years of age and who has been convicted of an offence not punishable for more than three years may serve any relevant community for a period not exceeding maximum of thousand hours at the discretion and consent of the Court. The commentators through the 156th Law Commission Report opined that community service is not practicably applicant to the conditions in India.
It has been more than twenty years, and the environment of India and its Criminal Justice System has changed since then for practical application of community service order. Courts have been ordering community service even in the absence of exclusive provision for the same. In State TR PS Lodhi colony New Delhi v. Sanjeev Nanda, the Supreme Court has held that in a case where human lives have been lost by another person, serving the community will give him solace even though the conduct may not be appreciated by the community. The Court ordered 50 lakh rupees fine along with the accused serving two years under the initiatives of Ministry of Social Justice and Empowerment. Recently Gujarat High Court has given a perspective that community service is a form of reparation where community as a whole is a victim. The Gujarat High Court opined that violators of social distancing norms laid down to curb the spread of Covid-19 posed a risk to the whole community and requested the state to enforce a mechanism where in such violators may serve the community for at least 4-6 hours a day for a period of 5 to 15 days.
Pre-trial reforms have to be promoted and given a new perspective through community service order as majority of them are under trial prisoners accounting to 69% of the total convicts. Out of this 75% of inmates were accused of offences which would imprison them for not more than a year. In such petty offences, community service orders at welfare institutions involved in care disabled persons or age-old persons or extending their hand in environment like green plantation, maintenance, construction, and renovation of buildings like that of school, hospital etcetera are recommended. The nature and behavior of the accused may be monitored and life lessons may be taught to them, which would be beneficial to both, the accused and the community. For example, a community service order granted to an accused to work at a hospital in a remote area led the Court to realize that health aid was not being provided properly due to language barriers. Thus the court ordered for better administration system to be put in place in that hospital.[v] Likewise, community service orders will help in improving the conditions of prisons for long term convicts. Number of inmates may be reduced and better facilities shall be provided to them once the number of prisoners is adequate and also the ratio between prisoners and staff can be maintained.
But, this reformative practice should be granted according to the seriousness of the offence, and not allowing a loophole to be created in the criminal justice system. In 2016, in a case which was quashed by the Bombay High Court, community service by sweeping the streets of Mumbai for a month was ordered to five youths who were accused of sexual assault. In a recent case Delhi High Court has ordered the accused who were tried before the court for attempt to murder to work in Ram Manohar Hospital for a period of one month. These cases may cause an impression that the accused may commit a serious crime and easily get away with a term of community service. [ME5] Therefore, it is imperative to strike a balance between the ordering of community service and the gravity of the crime committed.
Conclusion
Community service sentencing is a new area of law whose potential still has to be understood in India. It can be an effective way of restoration, reformation, reparation, and rehabilitation if ordered in the right way. For the effective implementation of community service orders, a proper policy should be imposed considering the suitable environment prevalent in India and its legal framework.
Community Service helps in the decongestion of prisoners, and prisoners in this way shall give back to the community by providing service to many governmental and non-governmental agencies. This reduces the burden on the state exchequer and the funds released can be utilized for better reasons. Community Service shall allow the offender to learn the adaptation and life skills required for surviving in the outer world.
Even though community service is yet to be explored in India, ordering it as a non-custodial form of punishment should be considered seriously by taking into consideration the suggestions of Malimath Committee and 156th Law Commission Report[ME6] . Showing a positive attitude towards community service shall reap many benefits to the violators, community, and State as well. Thus, community service may prove to be an effective alternative to imprisonment.
[i] Bala Reddy, Community Service Orders: An Alternative Sentence, 3 Singap. Acad. Law J. 230, 232 (1991). [ii] R v. Starie, [1979] Crim. L. R. 731. [iii] R v. Canfield, (1982) 4 Cr. App. R 94. [iv] Section 3563 (2) (13), 18 U. S. C Comprehensive Crime Control Act of 1984. [v] Ramraja v. State of Madya Pradesh, Cr. A. No. 7795/2018 as mentioned in Sunita Gandharva v. State of MP, 2020 SCC OnLine MP 2193.
Anagha S S is a fourth-year student at Symbiosis Law School, Pune.