Making community service a credible penalty

In January 2025, the court of the third additional munsiff in Jammu sentenced a person, who was found guilty of obstructing traffic and causing public annoyance, to one week of community service (CS) involving cleaning, sweeping and mopping at a Community Health Centre in Dansal. The same court, in a similar matter, ordered the guilty to clean and maintain a public park at Jhajjar Kotli daily for three hours for one week. In both the cases, the Station House Officer of Jhajjar Kotli Police Station was tasked with ensuring compliance and submitting a report with photographic evidence.

In the third case of the same nature in the same month, a sub-judge court in Katra ordered the offender to perform CS by cleaning and maintaining a park at Katra for three consecutive days; the chief executive officer of the Katra Development Authority was directed to oversee compliance of the punishment order.

In yet another case, on March 6, the Chief Judicial Magistrate, Chandigarh, ordered a habitual traffic violator to do CS for five days under the supervision of the reader to SSP (Traffic).

Community service has been added to the list of punishments under Section 4 of the Bharatiya Nyaya Sanhita, (BNS) for the first time for six offences of public servants engaging in unlawful trade (Section 202), non-appearance in compliance of proclamation (Section 209), attempts to commit suicide to compel public authority (Section 226), minor theft where the stolen article is returned and value of the property is less than Rs 5,000 [Section 303(2)], public misconduct while intoxicated (Section 355), and defamation [Section 356(2)].

The inclusion of CS as a substantive sentence under the BNS is a reflection of non-custodial correctional measure subscribing to the philosophy of 'restorative justice' in the Indian criminal justice system. The term CS is defined by adding an explanation to Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), stating that community service shall mean the work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.

This definition is ambiguous and needs to be examined, especially in the background of Article 23 of the Constitution of India, which prohibits "begar" and similar forced labour practices. Even convicts undergoing rigorous imprisonment in jail are paid wages for the work they do while serving their sentence.

The words "work which the court may order" and "that benefits the society" are non-specific and surrounded by uncertainties as a lot has been left to the imagination of the trial court, having individualised perceptions about events in life. There is always a scope left for the presiding officer faltering in assigning the suitable task for CS. This issue may be resolved by including a suggestive list of such works in the High Court Rules and Orders.

A lot of confusion is prevailing about designating the execution agency for the purposes of monitoring, supervising and reporting back compliance on the CS sentence as a variety of government and public functionaries are being given this task by the courts without realising that such employees are not trained to perform such duty, nor do they possess proper skills for handling such convicts.

Moreover, in the absence of rules/guidelines, they are completely ignorant about the documentation required to perform such an important duty. It must be remembered that CS is a substantial punishment under the BNS and, hence, its execution squarely falls within the domain of the agencies of the criminal justice system (CJS).

In the 'Rules of Business' of the government, law and justice are listed as subject matter of the Home Ministry. It would be an administrative blunder to assign the duty to execute CS sentence to an agency outside the jurisdiction of the Home Department. It is desirable that CS should be included in the list of business of the Home Department and necessary modalities prescribed.

The execution of the sentence in criminal cases is the primary responsibility of the Prison Department. The rules and procedures for the same are prescribed in the jail manual of the states. Since CS as a sentence is included recently in the BNS, it does not find mention in the prison rules and regulations. Therefore, some prison administrators and magistrates often mistake the execution of CS punishment on a par with that of monitoring a person found guilty but not sentenced and released temporarily on probation under the supervision of the District Probation Officer as per the provisions of the Probation of Offenders Act 1957.

It is to be understood that the releasing of a guilty person on probation is not a punishment, it is an order before sentencing (rooka hua faisla), as a correctional measure by offering an opportunity to a first-time offender to reform.

At the same time, it is not to be forgotten that the police and the Prison Department are the repository of all records of crime and criminal convictions. If a convict is awarded punishment to do CS and the subject is directed to report to an authority other than the prison authorities for monitoring and supervision, it would be impossible for the jail administration to know about the proper serving of such a punishment.

This is very well evident from the experience of record-keeping of persons released on probation for good conduct; it is in disarray and nobody is in a position to give the data of such probationers for want of institutionalised mechanism. Non-institutionalisation of the processes and modalities to execute the punishment of CS would result in inadequate and faulty execution as well as inappropriate or no record-keeping of such a substantive criminal punishment.

Awarding punishment is within the domain of law courts. How the sentence would be served is the exclusive jurisdiction of the state. Ideally, the state should create the mechanism and prescribe procedures for the execution of all sentences in criminal cases.