~ This post has been authored by the Editorial Team of The Writ Review.

‘Community Service’ has been introduced for the first time as an alternative to imprisonment in the Bhartiya Nyaya Sanhita, 2023 (referred to as the BNS hereinafter). This positive development represents a substantial change in the field of penology within the Indian criminal justice system. Among the many goals that punishments aim to achieve are retribution, justice, deterrence, reformation, etc. Sentencing guidelines of today combine some or all of these objectives.

Almost fifty years after it was first implemented in the United Kingdom in 1973, community service has finally been made available as an alternative to prison sentence in India under the new BNS, 2023. Inspiration may also have been derived from it’s success in other jurisdictions such as the United States and the European Union. It is important to remember that in 1997, the 156th Law Commission Report suggested amending Section 53 IPC to add “community service” as an alternative to a jail sentence. Nevertheless, this suggestion was never implemented.

There are multiple benefits to using community service as a prison substitute. It instantly avoids adding to the already excessive workload in our already overcrowded jail from the standpoint of state resources. The most current information on jail overcrowding in India dates back to 2021. The number of prisoners housed in 1319 jails across the nation increased by 13% between 2020 and 2021, from 4.8 lakh to 5.5 lakh, bringing the average overcrowding to 130 percent nationwide. The BNS has added community service to the list of punishments for a select few offenses, in addition to jail time or a fine, in order to combat jail overcrowding and adhere to the reformative theory of punishment.

Community service has many advantages beyond just lowering the number of people going to jail or prison and alleviating prison overcrowding. Community service, from the perspective of the prisoner, will shield petty offenders or first-time offenders from more seasoned and recalcitrant peers, providing them with a genuine opportunity at rehabilitation. Notwithstanding the advantages of community service, it is important to remember that the lack of sentencing guidelines in our legal system has long raised concerns.

The introduction of a novel, all-encompassing sentencing format such as “community service” is certain to heighten these concerns, particularly since the statute provides no guidance regarding its imposition or execution. The sentencing pendulum will inevitably swing in the absence of any legislative guidance. Furthermore, there is no structure in place to ensure its implementation. Not only should general guidelines for community service be established, but the law should also specify what community service is, how long it takes, default sentencing or fines, the consequences of violating community service orders, how the program is implemented, supervised, and managed, among other things.

If community service was included in some other statutes for offenses with light sentences, it might be advantageous. For instance, for minor offences under the NDPS Act, the Motor Vehicle Act of 1988, or the Contempt of Court Act of 1971. In conclusion, the new penal code’s introduction of community service is a positive step, but more work needs to be done before this helpful provision can be fully utilized.

For the reference of the readers, the following offences under the BNS could include community service as an alternative to punishment:

• Section 346: Removing, destroying, or defacing property mark with the intent to cause injury
• Section 329(4): House trespass
• Section 324(2): Mischief
• Section 326(e): Mischief by destroying or moving a landmark fixed by public authority
• Section 296: Obscene acts and songs
• Section 297(1): Keeping a lottery office
• Section 297(2): Publishing proposals relating to lotteries
• Section 285: Causing danger or obstruction in public way or line of navigation
• Section 291: Negligent conduct with respect to an animal
• Section 221: Obstructing public servant in discharge of his public functions
• Section 194(2): Committing affray
• Section 186: Fictitious stamps
• Section 122(1): Voluntarily causing hurt on grave and sudden provocation not intending to hurt any other than the person who gave the provocation