Making community service under the BNS effective

While the introduction of community service in the penal law provisions is a welcome change, the absence of guidelines may lead to experimentation by judges

Community service is increasingly being used as an alternative to imprisonment in many jurisdictions across the world. The emphasis is on doing community service under the supervision of a probation or community service officer. The offenders who must undertake community service are usually made to work in NGOs, old-age homes, and community-based organisations, so that they develop a sense of accountability and responsibility towards society and the community. The experience of countries such as Norway, the Netherlands, and Australia, where offenders undertaking community service are supervised by community service officers or probation officers, or Japan, where they are supervised through a network of hogoshis (volunteer probation officers), has shown that this led to reduced prison populations and a progressive criminal justice apparatus.

Experimentation by judges in awarding community service for punitive purposes may not be rooted in correctional principles. Recent court orders on community service are testimony to this trend.

Under the Bharatiya Nyay Sanhita (BNS), there are six offences that can attract the punishment of community service; these include Section 202 (public servant unlawfully engaging in trade), Section 209 (non-appearance in response to a proclamation under section 84 of the BNSS), Section 226 (attempt to commit suicide to compel or restrain exercise of lawful power), Section 303(2) (theft where the value of the stolen property is less than 5,000 rupees and a person is convicted for the first time and returns or restores the value of property), Section 355 (misconduct in public by a drunken person), and Section 356(2) (defamation).

While the introduction of community service in the penal law provisions is a welcome change, the absence of guidelines rooted in the philosophy behind community service can impede its implementation and may lead to experimentation by judges, which may not be rooted in correctional principles. Recent court orders on community service are testimony to this trend.

Some states have laid down guidelines for the execution of community service. These include Assam, Delhi, Haryana, and West Bengal. A schematic analysis of these guidelines shows that offenders are assigned tasks such as cleaning or maintenance of hospitals, government offices, libraries, museums, schools, municipal areas, public parks, bus stands or markets; deployment for traffic regulation duties, tree planting and horticulture work, working in old-age homes and legal aid offices.

The West Bengal guidelines mandate offenders to report to a probation officer to supervise their work, while the Haryana notification lays emphasis on geo-tagging and monitoring the progress of the offenders. The four states adopt distinct timelines for community service. Assam and Delhi prescribe a fixed range of one-31 days or 40-240 hours, giving courts a flexible framework. West Bengal prescribes a phased schedule: up to 100 hours within three months, and if more, at least 100 hours every three months until completion of the community service sentence. Haryana is the most open-ended, with no preset limits; the competent authority or court needs to specify the exact duration and timeframe in each case, allowing the maximum discretion to tailor the punishment to the offender and circumstances.

Some of the provisions seem constructive, especially from a reformative angle: For example, working in old-age homes or legal aid offices, libraries, museums, etc, or engaging in tree plantation or horticulture work. However, many of the provisions emphasise cleaning and maintenance work, which carries an element of punishing the offender by making them engage in menial or semi-menial work. There is no emphasis on skill development or re-socialisation, which would address criminal or recidivist tendencies. The purpose of community service would be served if the guidelines emphasise these aspects as well.

As former Chief Justice of India UU Lalit recently remarked while expressing his anguish about the lack of proper guidelines, “…ethos cannot change overnight. We can make certain changes in the right direction and perhaps wait for the time to introduce some other changes. So it is a good beginning which has been made by the legislature”.

Vijay Raghavan is professor, Centre for Criminology and Justice (CCJ), School of Social Work (SSW), TISS, and leads Prayas, a field action project of CCJ, SSW, TISS. Saugata Hazra is a senior fellow with Prayas-TISS. The views expressed are personal