Concept of Community Service as Punishment under BNS, 2023- a boon or bane?
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:-19 ISSUE NO:- 19 , FEBUARY 10, 2025 ISSN (ONLINE):- 2584-1106 Website: www.the lawway with lawyers.com Email: thelawwaywithelawyers@gmail.com Authored By :- Shivani Johri Assistant Professor, Jamia Hamdard University, Delhi Concept of Community Service as Punishment under BNS, 2023- a boon or bane? ABSTRACT Community service is a form of punishment that requires offenders to perform unpaid work for the benefit of the community as part of their sentence. Community Service as a form of punishment has been introduced for the first time under the Bharatiya Nyaya Sanhita, 2023 (BNS). This represents a shift towards restorative justice, emphasizing rehabilitation and reintegration of offenders into society rather than purely punitive measures. Offenders involved in minor offences can avoid traditional punishment by performing community service. KEYWORDS-Rehabilitation, reintegration, Community service, restorative justice. INTRODUCTION Community service is unpaid work performed by a person or group of people for the benefit and betterment of their community contributing to a noble cause. Community service might seem like a new concept for us, but it has been lurking in the shadows, especially within the Juvenile Justice (JJ) Act. A recent example is the Pune Porsche accident, where the judge sentenced the offender to community service. Despite such precedents, the broader community service application remains to be seen. This article aims to analyze the potential of community service to address issues like prison overcrowding, rehabilitation of offenders, and its overall fit within the Indian judicial system. Community service as a punishment has been widely adopted in Western legal systems. Countries like the United States, the United Kingdom, and several European nations have successfully integrated community service into their sentencing frameworks. These systems have demonstrated that community service can be an effective alternative to incarceration, especially for non-violent offenders. In the United States, community service is often used for minor offences, allowing offenders to contribute positively to society while avoiding the negative impacts of imprisonment. Programs are typically well-structured, with clear guidelines and monitoring mechanisms to ensure compliance. Similarly, community service orders are a standard sentencing option in the United Kingdom, often combined with other forms of rehabilitation such as counseling or vocational training. BACKGROUND (Community) service is a non-paying job performed by one person or a group of people for the benefit of their community or its institutions. Community service is distinct from volunteering, since it is not always performed on a voluntary basis and may be performed for a variety of reasons, including: Required by a government as a part of citizenship requirements, like the mandatory “Hand and hitch-up services” for some municipalities in Austria and Germany, or generally in lieu of military service (see: Zivildienst and Alternative civilian service) or for civil conscription services. Required as a substitution of, or in addition to, other criminal justice sanctions – when performed for this reason it may also be referred to as community payback or compensatory service. Mandated by schools to meet the requirements of a class, such as in the case of service-learning or to meet the requirements of graduating as class valedictorian. As an workfare obligation, as condition of the receipt of social and financial benefits, see Workfare in the United Kingdom In Sweden it is a suspended sentence called “samhällstjänst” (“society service”). OBJECTIVE OF COMMUNITY SERVICE– Community service is designed to: Hold offenders accountable for their offensive acts. Provide a means for offenders to contribute to society. Reduce the burden on the prison system. Promote the rehabilitation and reintegration of offenders Eligibility for Community Service Minor Offences Community service is typically reserved for minor offences, non-violent crimes, and first-time offenders. This ensures that the punishment is proportionate to the crime. Judicial Discretion Judges have the discretion to impose community service based on the nature of the offence, the circumstances of the case, and the background of the offender. Duration and Nature of Service Specified hours The court determines the number of hours of community service based on the severity of the offence. Nature of service The nature of the community service work is decided in a way that it benefits the community and is suitable for the offender’s abilities. Examples include cleaning public spaces, working with non-profit organizations, or assisting in community development projects. Provisions under BNS providing Punishment of Community Service Section 4(f) of the BNS formally introduces community service as a form of punishment in India. This legislative change aims to provide an alternative to traditional forms of punishment, addressing issues like prison overcrowding and promoting the rehabilitation of offenders. However, the success of this initiative depends on the precise definition and implementation of community service. Community service is a non-custodial restorative justice approach aiming to reintegrate offenders into society. Community service has not been defined in the BNS and the nature of community service to be performed by the accused person will be decided by the Magistrate. Explanation to Section 23 of the BNSS defines Community Service as work ordered by the Court as punishment that benefits the community, with no remuneration paid to the convict performing it. The BNS has introduced community service in addition to imprisonment or fine as a form of punishment for the following six offences: Section 202: Public servant unlawfully engaging in trade Section 209: Non-appearance in response to a proclamation under section 84 of BNSS, 2023 Section 226: Attempt to commit suicide to compel or restrain exercise of lawful power Section 303(2) proviso: Theft where the value of the stolen property is less than five thousand 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. Section 356(2): Defamation . Under BNSS, community service is now an option for minor offenses such as petty thefts, public nuisance, and false defamation complaints. Offenders involved in thefts of property valued under Rs 5,000 can avoid traditional punishments by returning the stolen goods and performing community service. Judgments in which Courts Directed the Accused to Render Community Service Parvez Jilani Shaikh v. State of Maharashtra (2015): The Court directed the accused to render community service at B.A.R.C Hospital. Sunita