Understanding the concept of Community Service as a Punishment added in the Bharatiya Nyaya Samhita 2023.

Author: Avaneesh Abhyankar, ILS Law College.

With the Implementation of the new Criminal Law System in India administered through the Bharatiya Nyaya Samhita,2023, several changes have been made towards the amendment of punishments prescribed in the Preceding and now defunct Indian Penal Code, 1860. This is pretty evident as seen in the increase of fines and some amendments to the other sentences relating to prison terms to be served by the convicts of various crimes. However, it remains to be seen whether these changes can blend in well with the Indian Justice system and are administered effectively by the Courts. A Detailed analysis is required to draw inferences about their effectiveness in modern times as most of these Punishments are more or less similar to what they were earlier in the Indian Penal Code with very few changes done.

The main highlight however is the introduction of the new punishment of Community Service prescribed for some offences in the Bharatiya Nyaya Samhita. This new punishment needs to be addressed in detail to make out conclusions about its effective implementation in our legal system.

Community Service, Indian Justice System, Indian Legal System, Punishment, Bharatiya Nyaya Samhita (BNS), Indian Penal Code (IPC), Crimes, Offences, Criminal Law, Deterrence.

Punishment is one of the most critical features of the Criminal Law System in the World as a whole. Punishment is an important aspect considering that it is used as a means of retribution on the offender and a deterrent for the general public all around to make them aware of the consequences they may face should they get involved in any kind of offence.

Previously, Punishments were prescribed in the Indian Penal Code, now the Bharatiya Nyaya Samhita, 2023 has replaced the IPC as the official Criminal Prosecution Manual in the field of Criminal Justice system in India with Jurisdiction over the entirety of India as well as over Indian Citizens residing outside India’s Geographical Boundaries.

The BNS has prescribed 6 types of Punishments under S.4 :-

The Punishments given are on the basis of the offences committed and are largely proportional to these offences.

The Punishments provided under the BNS are:-

• S.4(a) Death;

• S.4(b) Imprisonment for Life;

• S.4(c) Imprisonment which is of two descriptions, namely:-

• Rigorous i.e. with Hard Labour;

• Simple;

• S.4(d) Forfeiture of Property;

• S.4(e) Fine;

• S.4(f) Community Service.

Corresponding Law

S.53 of the IPC.

The Punishment that is the newly added one to this lot is the Punishment of Community Service. What remains to be seen is its actual implementation, owing to the triviality of offences when it is administered there is a general absence of any landmark judgements based on the punishment of community service being prescribed to an offender.

The Definition of Community Service is given in the Bharatiya Nagarik Suraksha Samhita,2023 (BNSS).

Section 23 of the BNSS defines Community Service as –

“ 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.”

There is no explicit clarity about what type of tasks can be assigned under the ambit of Community Service, however, the court would surely take into consideration their qualification and skill while assigning them social service work as punishment.

The ambiguity of what the sentence might be, would still linger on even with the courts trying their best to erase this ambiguity.

Primarily, Community Service is prescribed when dealing with absolutely minor and trivial offences whereby there is no real requirement for the offender to be imprisoned or given a harsher sentence.

There are some specific offences however where it may be administered.

• Theft :- 

S.303(2) of the BNS which deals with Theft specifically mentions Community Service in case the Value of the Goods or Property involved in theft is under Rs.20000 and the offender is a first time offender, he shall upon return of property be sentenced to Community Service.

• Attempt to Suicide :-

S. 226 of the BNS prescribes the punishment for Attempt to suicide to compel or restrain exercise of lawful power. The Punishment prescribed for such an offence is imprisonment upto 1 year, or with fine, or with both, or with Community Service.

• Non-Appearance in response to Proclamation made under S.84 of the Bharatiya Nagarik Suraksha Samhita,2023.:-

The punishment for this offence has been prescribed in S.209 of the BNS and it has explicitly mentioned the use of Community Service as a kind of punishment for such an offence.

• Misconduct in Public while being intoxicated:-

S.355 of BNS prescribes Community Service as Punishment for this type of an offence along with some more punishments prescribed for it.

• Defamation:-

S.356(2) of the BNS states Community service as a punishment in addition to or instead of Imprisonment and Fine for Defamation. 

The above mentioned instances are just some of the explicitly mentioned offences to which Community Service may be prescribed by the court of Law.

However, the court has discretionary powers over if and when it wishes to prescribe community service to an offender for the offence that has been committed. The Court may or may not sentence the offender to Community Service upon Conviction.

Advantages

• Community Service as a punishment is more of giving the offender a chance to rectify his mistake than punish him. Even though the main aim of the Criminal Justice System is to punish the wrongdoer, community service is given for relatively trivial offences and therefore acts as a positive mode of dealing with crime rather than punishing the offender with severe prison sentences.

• Sentencing the convicts to community service rather than Prison Terms helps to reduce the number of incarcerated people and thus decreases the burden on the already overpopulated and overcrowded Prisons in India. The reduction in the number of inmates of a prison also helps the prison system and management to function smoothly with the prisons under their charge.

• By engaging the offenders in Community service the focus shifts from inflicting punishment on them to rehabilitate them. Owing to the triviality of the offence the offender has committed, he never really is a threat to society in a sense that he needs to be punished severely for these kinds of Offences.

• Sentencing these offenders to Community Service is also cost-effective on the part of the Government as managing the prisons is an extremely expensive affair and by reducing the number of inmates the burden on finances of prison systems decreases manifold.

• A community system can be tailored in a way that rectifies the effects of the offence that the offender has committed. 

Ex:- An offender who has committed a theft at a small finances bank, he has now been told by the court to work with a charity for 3 months whereby he has been given the duty to work in the Finances Department of such a charity and manage the finances.

• The Judges have the discretion to sentence the community service in proportion to the offence that the offender has committed. The judge can manage the sentence better so as in the best interests of the community and keeping the societal needs in mind.

• Working under the sentence of community service fosters a sense of professional responsibility in the offender and creates a feeling of accountability to the community against which he has committed the offence.

Disadvantages

• The major disadvantage of community service is that there is no sense of deterrence for the offence. The offender may feel that all he gets for these trivial offences is community service which might encourage him to get back to the Criminal Ways.

• Another disadvantage of community service is the lack of uniformity in sentencing. It is true that the sentence given by court will be proportional to the offence that has been committed by the offender. However, there are several factors whereby a similar kind of offence might be given some other type of Community Service which causes ambiguity among the two sentences even though they are given to seemingly similar offences.

• Community Service can sometimes result in overexploitation of the offenders owing to the social stigma of being an offender that they are facing. The courts, while sentencing Community Service try their best to salvage the image of the offender by avoiding sending them to the prison and thereby getting their names in the criminal records. However the stigma of the offence will always stay with them and this may lead to exploitation of the offenders serving Community Service.

Owing to the novelty of the concept of Community Service, there were not too many published articles from famous legal professionals. Therefore the guiding light for this article happens to be the Bharatiya Nagarik Suraksha Samhita, 2023 (BNSS) and the Bharatiya Nyaya Samhita, 2023 (BNS). The Government documents, though lacking a general straightforward explanation of the concept, provide enough information so as legal students like me can draw some inferences from it and provide a general interpretation of the concept. Also there are no Citations or Case Laws as such for Community Service owing to the triviality of the offences for which it is given.

The Above Article is more of an interpretative study on the topic of Community Service and there may be several subjectable and debatable opinions about it considering that this is the writer’s own interpretation of the community service as a punishment and somebody else’s may vary. However, through more research in the future over this topic will definitely shed some more on various facets of Community Service as a punishment and its impacts on the society both positive as well as negative.

The ever-growing aspect of Human Rights in the dealing of the criminal justice system in the world has given rise to this new concept of community service. The Punishment of Community service comes across as a major change in the existing or prevalent punishment policy, the Legal System dealing with the law of crimes in particular. The focus now shifts from punishing the offender to rehabilitating the offender and to reduce the social stigma of having the name in the criminal records of the legal enforcement. The concept comes across however, with a mixed bag result considering that there are as many flaws as benefits of this concept as have been stated above. The ambiguity still lingers on regarding the foundation of such types of punishments as the world moves forward and the human rights sword will continue to haunt the justice system making harsher punishments difficult to be given to offenders.

• S.23, Bharatiya Nagarik Suraksha Samhita 2023.

• S.4(f) Bharatiya Nyaya Samhita 2023.