Community sentencing

Community service is an order that requires offenders aged 16 and above, contingent upon their consent to perform unpaid labor spanning from 40 to 240 hours, overseen by a probation officer. Previously termed as a Community Service Order, it entails offenders engaging in unpaid community work relevant to the nature of their offense, under probation officer supervision.

Legal provisions related to Community Sentencing

Under Section 18(1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015, if a child, regardless of age, commits an offense, the Juvenile Justice Board may order community service based on the offense severity, supervision need, social investigation report, and past conduct. This may involve supervision by an organization, institution, or specified individual, as deemed appropriate by the Board.

The Indian Government has officially embraced the concept of "Community Service" as a form of punishment within the Criminal Justice System following the enactment of the Criminal Amendment Bill, 2023, which received presidential assent on December 25, 2023. Section 4 (f) of 'The Bharatiya Nyaya Sanhita, 2023' acknowledges 'community service' as a punitive measure, previously limited to the Juvenile Justice Act.

However, only six offenses outlined in the latest legislation qualify for the application of 'community service' as a punishment. These offenses are classified as 'Petty Offenses,' carrying a maximum imprisonment term of up to three years. They include:

• Section 202: Public Servant unlawfully engaging in trade.
• Section 209: Non-appearance in response to a proclamation under Section 84 of the Bhartiya Nagarik Suraksha Sanhita, 2023.
• Section 226: Attempt to commit suicide to compel or restrain the exercise of lawful power.
• Section 303(2): Theft of property (valued at less than Rs. 5,000), which is returned or restored.
• Section 355: Misconduct in public by a drunken person.
• Section 356(2): Defamation against the President/Vice-President/Governor and defamation in any other case.

Official Documents related to Community Sentencing

In the 42nd Law Commission Report, the inclusion of “corrective labor” under the types of punishments was discussed. It would have allowed the convict to work at his own place or any work-center and hence avoid the evils of prison life. However, this suggestion was stayed due to absence of any provision dealing with the administrative matters. Nevertheless, the report provided broad features of the punishment of corrective labor that can be incorporated in any future legislation related to community servicing.

Thereafter, the 156th Law Commission Report of 1997, the proposed amendment to Section 53 of the IPC was discussed. It suggested community service as one of the modes of punishments under the section. Similarly, a new section 74A was to be introduced by the Bill which specially deals with the conditions and the procedure of imposing community service as a punishment. According to this new section, individuals aged eighteen or older convicted of an offense that carries a maximum sentence of three years imprisonment, or a fine, or both, may be sentenced to community service. Instead of sending them to prison or taking any other action, the court can issue a "community service order" requiring the convict to perform unpaid work for a specified number of hours, subject to certain terms and conditions.

Case Laws related to Community Sentencing

In Babu Singh and the Ors. v. The State of UP, the court emphasized the need to reduce punitive harshness. Instead, one should focus on developing restorative methods to rehabilitate individuals, such as community service, meditation sessions, educational classes, and other resources. Actions that disrupt public peace, like tampering with evidence, intimidating witnesses, or committing crimes while on court-authorized release, should face consequences.

In Smt. Sunita Gandharv vs State Of MP, the court opined that Section 437(3) and other related provisions like Section 438(2) and 439(1) provide the opportunity to include Community Service as a condition for bail. Community Service offers both social and cognitive advantages and can be utilized not only as an alternative to post-trial measures but also as a means of pre-trial reforms. Indeed, incorporating Community Service as a post-inquiry measure under Section 18(1) would further enhance its effectiveness. So, the concept of justice suggests a shift towards establishing more reformation and correction centers. Emphasizing community service, tree planting initiatives, creative endeavors, and guiding reparative techniques for the accused before trial could offer viable solutions.

Similarly in State Tr. P.S. Lodhi Colony, New Delhi vs Sanjeev Nanda, the court observed that even though engaging in activities that benefit society isn't truly a punishment in the traditional sense, it allows convicts to repay their debt to the community. Not only will the community appreciate the efforts of the convicts, but it can also provide a sense of solace, particularly in cases where individuals have caused harm or loss of human life through their actions or inaction.

International variations

Australia

In Australia, each state has its own unique criminal justice administration system due to its federal-state structure. However, there are common features across the states' community service programs. Firstly, the number of work hours assigned can vary widely, from 40 to 750 hours. Secondly, community correction orders typically have a maximum duration of five years. Thirdly, individuals on probation evaluate the suitability of offenders for community service before sentencing and provide recommendations to the court. Fourthly, offenders are supervised by community service personnel while fulfilling their orders. Additionally, in some Australian regions, community service may be offered as an alternative to paying a fine.

United Kingdom

In the United Kingdom, community service, known as community payback, is overseen by the Ministry of Justice. It is assigned to first-time offenders, individuals with mental health issues, and those demonstrating potential for rehabilitation. The duration of unpaid work ranges from forty to three hundred hours, depending on the seriousness of the offense. In addition to community work, offenders may face additional conditions such as curfews, travel restrictions, or wearing electronic monitoring devices. They are also required to participate in education, training, and employment programs aimed at improving their future job prospects. However, breaches of these conditions are common, resulting in offenders being returned to prison or having two hundred hours of unpaid work added to their sentence.

United States of America

The Oklahoma Community Sentencing Act, enacted in 2000, mandates each county to establish its own community sentencing framework. Community sentencing options may include community service, substance abuse treatment, education, job training, and employment opportunities, with or without compensation for the offender. Before sentencing, offenders undergo assessment using the Level of Services Inventory (LSI) to gather information on various factors. Only offenders with moderate scores on the LSI assessment are considered eligible for community sentencing. In cases where assessment through LSI or another approved method is not feasible, offenders are deemed ineligible for community services. Additionally, a written supervision plan and suitable community punishment must accompany the sentencing, subject to court review.

New Zealand

The Sentencing Act of 2002 introduced community work in New Zealand, which encompasses unpaid labor, treatment programs, participation in rehabilitation efforts, and surveillance sentences, often involving electronic monitoring and restrictions on movement within the community. These sentences typically range from forty to four hundred hours and may be reduced by ten percent for commendable conduct. Additionally, offenders with longer sentences must complete at least one hundred hours within six months. Notably, unlike in other jurisdictions, offenders serving at least eighty hours are allowed to allocate up to twenty percent of their time to work and training in life skills. This training covers various areas such as resume writing, job interview preparation, parenting, literacy, numeracy, road safety, and budgeting. A distinctive feature in New Zealand is the requirement for offenders to repeat work hours if their performance is deemed unsatisfactory.

Research related to Community Sentencing

Beyond The Prison Bars: Contemplating Community Sentencing In India: by Mitali Agarwal

This paper advocates for a viable community sentencing model in India to address systemic flaws, emphasizing restorative justice principles, skill development, and societal reintegration for offenders, ultimately fostering a more effective and humane justice system. India's criminal justice system grapples with over 2 crore pending cases and inhumane prison conditions, perpetuating psychological trauma and hindering post-release rehabilitation. Though alternatives like community sentencing remain underutilized, past legislative attempts and judicial discretion signal recognition of its potential. Legislative proposals dating back to the 1970s aimed to incorporate community service into criminal sanctions, yet faced challenges. While recent court rulings acknowledge its benefits for first-time offenders, legislative endorsement is necessary for wider implementation, as observed in other jurisdictions. Despite judicial acknowledgment, legislative backing is essential to fully integrate community sentencing into India's criminal justice framework. Comparing open prisons to community sentencing in India reveals that while both offer post-custodial alternatives, community sentencing avoids the need for government infrastructure and empowers offenders to contribute to society directly. Community sentencing also provides skill development opportunities, making it a viable alternative to incarceration.

Implementing community service as a sentencing measure in India requires careful consideration of various factors such as offender suitability, nature and duration of work, and monitoring measures. Parameters for offender assessment include crime nature, antecedents, willingness, and reformation potential, necessitating expert input and a streamlined process. Parameters for work selection include offender capability and crime correlation, aiming for reparation. Training and therapy provisions enhance rehabilitation, while institution selection ensures community benefit and accessibility. To ensure proportionality in sentencing, community work duration should correlate with offense severity. Adopting the Spanish model of converting imprisonment days into community work hours could provide a static standard. Developing a predefined method for duration determination could ensure uniformity and incentivize offender performance.

Community Service: As a Part of Sentence in India by Priyanshi Gupta

Sentencing in the criminal justice system determines punishment for convicted offenders. Community service, considered an alternative to imprisonment, involves unpaid work benefiting the community. While not yet established in Indian law, it's debated for inclusion. The paper explores community service's origin, models from other jurisdictions, and its viability in Indian society. Community service as a sentencing option emerged in the last five decades, with roots traced back to Bridewell Palace in 1553. Its formal origin in England and Wales dates to the 1970 "Wootton Report," advocating non-custodial measures. The concept spread globally, notably in the USA and UK, followed by other nations. Community service emerged as an alternative to custodial sentences due to concerns over prison harm, overcrowding, and cost. Scholars advocated for non-custodial measures, emphasizing community service's cost-effectiveness and efficacy in reducing recidivism. Reports from the US Courts highlighted its flexibility and benefits for offenders and communities. Community service aligns with alternative punishment objectives and fosters dialogue between convicts and communities. Community service remains underexplored in India's criminal justice system despite overcrowding and high costs of custodial sentences. Minimal literature and studies exist on its impact. The Juvenile Justice Act allows for community service for juveniles. Past attempts to include it in the Indian Penal Code and Law Commission reports faced challenges, citing practicality issues and prioritizing other reforms like open-air prisons. Current sentencing provisions lack formal community service options, relying on judge discretion and probationary releases. While discretionary powers exist, formal provisions for community service remain absent in primary law, highlighting a gap in non-custodial sentencing measures.

Despite a lack of formal legislative framework, Indian courts exhibit a growing trend of resorting to community service as an alternative sentence. While concerns over ambiguity persist, courts emphasize its rehabilitative potential. Instances like the Madhya Pradesh High Court's recognition of community service's ability to reintegrate offenders and the Gujarat High Court's innovative use of community service for COVID-19 protocol violators illustrate judicial support. Despite debates over its classification as punishment, courts acknowledge its benefits and discretionarily apply it. Thus, despite statutory limitations, courts exercise discretionary powers to implement community service, reflecting evolving sentencing approaches.