Guest Post: On Community Service as Punishment — A Proposal Not Thought Through

(This is a guest post by Ashwani Singh)

The newly proposed penal code, Bharatiya Nyaya Sanhita Bill 2023 (the 2023 Bill), introduces ‘community service’ as a new punishment for petty offences. However, the Bill does not state what qualifies as a community service, or who makes that decision. It seems that judges will enjoy a wide discretionary power to decide what community service (nature and duration of work) they want to impose, and how to monitor that sentence. The question is whether such wide judicial discretion is in the interest of criminal justice. Interestingly, and contrary to many news reports, this is not the first attempt to introduce community sentence in India. The Indian Penal Code (Amendment) Bill, 1978 sought to introduce community sentence. The Bill was passed in the Rajya Sabha but lapsed with the dissolution of the Lok Sabha in 1979 (see paras 9.12 and 10.07, 156th LC Report). I argue that such wide judicial discretion is antithetical to the success of community sentencing in India. The community service provisions in the 2023 Bill are unclear and unfair. Further, the law should prescribe the nature of work, its duration, and other details for imposing and monitoring community sentences. I must clarify that all references to community sentence in this post should be read as references to ‘community service’ only and no other form of community sentence, unless mentioned/suggested otherwise.

An Attempt at Community Sentencing from the 70s, and the Reaction from 90s

The 70s attempt was slightly more thought-through than what the current (though yet ongoing) attempt has been so far. The 1978 Bill, for instance, provided the minimum (forty) and maximum (one thousand) hours of community service (see para 2.12). It also required the judges to be sure that the person sentenced is suitable to perform the community service they are being asked to, and that the state or local authority has made proper arrangements in the work area. We can infer that the state and local authorities were expected to work the courts to ensure proper implementation and monitoring of community sentence. One may argue that these are obvious and the law need not specify these details. However, the lack of proper statutory prescription could mean that either courts will take years before they get it right or they give up before they get it right. Further, a few of the objectives of community sentence are to reduce judicial burden and the cost of punishment. If we leave too much judicial discretion, we leave too much to be argued, contested, and finalised. It creates a possibility of arbitrary judicial decision-making. That does not eventually help in achieving the two objectives mentioned earlier. There are also other concerns which I will come to in the next section.

The 156th Law Commission Report responded to the IPC (Amendment) Bill, 1978 and prospects of introducing community sentence in India. The Report noted that community service may not be practicable and ‘may not amount to punishment’. It preferred open air prison system over community sentencing. Though the Commission was not very explicit in their reservations on community sentencing, it seems they anticipated community service orders (CSOs) would take up more judicial time than what the legislature expected it would. This can be inferred from Para 2.13 of the report, which noted—referring to the clause that allowed the court to modify or revoke CSOs in some specific circumstances—that the mere-reading of the clause would confirm the difficulties in enforcing such orders. Another unsubstantiated objection was that community service may not amount to punishment. Was that a theoretical objection, or practical? Given the report only refers to the realistic possibility of implementing an effective framework of community sentencing, the Commission was probably concerned whether community service orders would be as effective as fine or imprisonment. The practical difficulties may have led the Law Commission to question if community service would even amount to punishment.

A Feeble Attempt from 2020s

Unlike the 70s attempt and the 90s report, this new attempt so far seems rather feeble. The 2023 Bill, which has been drafted after ‘extensive consultation’, does not provide any relevant details on community sentencing. The Select Committee Report on the Bill notes the absence of details as well (pg.20). Community service is an optional punishment for five offences (sections 200, 207, 224, 353, and 354), and mandatory for first-time theft offenders where value of stolen property is less than INR 5000 (section 301(2)). Section 8(5), which is supposed to prescribe terms of punishment in default of community service, seems unclear and unfair. It states that:

“Section 8: ……. (5) If the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed for any term not exceeding,—

(a) two months when the amount of the fine shall not exceed five thousand rupees; and

(b) four months when the amount of the fine shall not exceed ten thousand rupees, and for any term not exceeding one year in any other case.”

There is no specific instruction on the maximum imprisonment possible on default of a community service order when community service is the only punishment imposed. Consider two hypothetical cases: first, Person A is found guilty of defamation and fined INR 9000; second, Person B is also found guilty of defamation and issued with a community service order (say, 20 hours of community work). Person A may be imprisoned with a term extending to four months but not more than that. Person B, who only had a CSO against them, could possibly be imprisoned for a year. Some may argue that judges nonetheless need to comply with section 8(4) which requires that the imprisonment in such cases ‘be of any description to which the offender might have been sentenced for the offence’. In our hypothetical examples, the maximum imprisonment that may be imposed is two years (section 354(2)). That means, if Person B is indeed imprisoned for a year, it will be within the prescription of the penal code, which as I have shown seems unfair. Could judges overcome these legislative errors? Yes, possibly but not always. There is indeed a realistic possibility of such unfair application at least in some cases. Why must we invest precious judicial time in correcting errors that should not be there in the first place? Further, it is more likely that an unfair application, like the one shown above, will go unnoticed. Unfortunately, this is the cost of a rushed criminal reform.

The 2023 Bill also does not state what happens when a person punished with community services defaults and there is no other form of punishment prescribed for the offence they were convicted. The proviso to sub-section (2) of section 301 [theft] makes for such a case, it states:

“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.”

Concluding, What Should the Law Prescribe?

Many foreign jurisdictions provide for community sentencing. Most prescribe or suggest the nature of work, and provide minimum and/or maximum hours of community work (see, England and Wales, the State of Victoria, New Zealand). Both England and Wales and New Zealand have an extensive legislative framework for community sentencing. They specify, for instance: first, the nature and duration of work; second, the details to be provided in a community order; third, responsibilities of supervising authorities/agencies; variation and/or cancellation of a community order; and many other details that are significant for the success of such a scheme. They also provide for a wide range of community sentences, unlike the 2023 Indian Bill which provides for community service only. If the Indian law makers genuinely intend to introduce community sentences, they first need to question the purpose of community sentences. Is it that only community work, and not any other community sentence, would meet their objective? They must also consider adopting a detailed framework for imposing, monitoring, reviewing, and modifying community sentences. Courts may be required to positively consider community sentence, where applicable, over other forms of punishment. Otherwise, and especially in the absence of a comprehensive framework for community sentence(s), judges will have fewer incentives to pass a community order.

Another concern is the social structure. How likely is that an offender, who comes from a privileged and reasonably rich family, would comply with a community sentence order? Would they prefer paying a fine, which often is not huge for petty offences, instead of doing community service? If that is indeed the case, it is likely that offenders complying with community service orders would be poor and unprivileged. It is not irrational to fear how they would possibly be treated by supervising organisations/officials/agencies and (in some cases) judges. The concerns discussed in this post, and many other objections raised against the new codes by others, also confirm how unprepared we are to bring these criminal reforms.