A number of alternatives to custodial sentences have been introduced in the Indian criminal justice system, with progress being made over time towards open prisons, probation, and rehabilitation centres. Yet the traditional reaction of the legal system upon conviction continues to be imprisonment and confinement, with the putative goal of reforming offenders. Deviating from this conventional course, the central government has proposed the introduction of community sentencing for petty crimes through the Bharatiya Nyaya Sanhita Bill 2023 (which proposes to replace the 1860 Indian Penal Code). This blog explores why introducing community sentencing is a positive step for India’s legal system, shedding light on its potential to benefit both the individual and society as a whole.

Community sentencing, also known as community service, is recognised as a form of sentencing in various jurisdictions around the world, though it is yet to gain mainstream acceptance in India. The only current recognition of community sentencing is Section 18(1)(c) of the Juvenile Justice (Care and Protection of Children) Act 2015, which provides for community sentencing for convicted minors.

In the past, attempts to introduce community service have proven unsuccessful. For instance, the Indian Penal Code (Amendment) Bill 1978 provided that community sentencing could be awarded for offences punishable with fewer than three years’ imprisonment, with work hours ranging between forty and one thousand hours. The Law Commission in its 156th report, as well as the Malimath Committee Report, both recommended implementing community service, though these recommendations never came into effect.

Still, it is worth emphasising that the Indian courts have passed several orders awarding community service as punishment by invoking section 482 of the 1973 Criminal Code, which confers inherent power upon the High Court to secure the overarching goal of justice. For instance, under this discretionary provision, the High Court of Delhi has directed offenders to clean shoes and rinse utensils at a Gurudwara. Yet, although the Indian judiciary has taken this initiative to grant community service, its discretionary nature may lead to inconsistent application and a lack of transparency, and cannot replace a proper legislative framework.

Introducing community sentencing for petty offences is a progressive step as it addresses various concerns. First, the inhumane conditions in overburdened prisons and the exposure to hardened criminals can negatively impact petty offenders rather than promoting their rehabilitation. Even after an offender’s release, the stigma of serving a prison sentence persists, which can inhibit their reintegration into the community. Secondly, community sentencing eases the burden on the incarceration system and the state exchequer. Emphasising this issue, the Rajasthan High Court observed in Pappu Khan v State of Rajasthan that the welfare state cannot afford a sizeable non-productive prison population as it imposes a heavy burden on the state exchequer.

These adverse implications of incarceration indicate the pressing need to reform the prison system and lessen the use of prisons by moving towards alternate sentencing. Community sentencing is based on the fundamental principle of ‘abhor the crime, not the criminal’. It is arguably the most effective alternative for first-time offenders convicted of petty crimes as this form of punishment is proportional and reflects the gravity of the offence.

Community sentencing also seeks to render services beneficial to the community, alongside rehabilitating the offender and assisting them in acquiring new skill sets. In jurisdictions that practice community sentencing, consideration is generally given to the specific type of community work appropriate to the individual, focussing on the correlation between the nature of the work assigned and the offence committed, to enable the offender to witness or contribute to remedying the first-hand damage caused by their crime. This approach has been successful in jurisdictions such as Spain and Singapore.

The introduction of community sentencing in India is a promising step, though it requires careful planning and implementation. The proposed framework in its current form only provides for community service as a punishment, overlooking its potential to benefit both the offender and the community. In order to enhance the efficacy of the framework, a comprehensive series of guidelines needs be established, outlining relevant elements like duration of work and the rights of the offender. Given the complexity of introducing a scheme for community sentencing, India should pay heed to the importance of engaging an independent agency to supervise the process of implementation, so that its potential benefits to both the community and to offenders can be maximised. All the same, the Bharatiya Nyaya Sanhita Bill’s endorsement of a community sentencing framework is to be welcomed as a step forward for India’s criminal justice system.