Community Service as punishment

BY
Name of the Student: Manas Kakumanu
Roll No: 2018LLB106
Semester: 4th
Name 0f the Pr0gram: 5 year (B.A., L.L.B)
Name 0f the Subject: Criminal Law- II
Name 0f the Faculty Member
Pr0f. (Dr.) Bhavani Prasad
Distinguished Pr0fess0r 0f Law, DSNLU

Date 0f Submissi0n: 12th December 2020

DAM0DARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM, VISHAKAPATNAM-531035,
ANDHRA PRADESH, INDIA

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 ACKNOWLEDGEMENT

First and f0rem0st, I have t0 thank my research supervis0r, Dr. Bhavani Prasad, with0ut
his assistance and dedicated inv0lvement in every step thr0ugh0ut the pr0cess, this paper
w0uld have never been acc0mplished. I w0uld like t0 thank y0u very much f0r y0ur supp0rt
and understanding 0ver these past 6 M0nths.

I w0uld als0 like t0 thank my university f0r nurturing me and c0ntributing t0 utilize the
state 0f art library, Where I f0und s0me really inf0rmative b00ks that deals with my thesis.
Finally, I w0uld like t0 thank my seni0rs f0r their guidelines and mental supp0rt.

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 Syn0psis

Title 0f the pr0ject: C0mmunity Service as Punishment

Intr0ducti0n:

The depl0rable state 0f the criminal justice administrati0n system in India has been
highlighted time and again with several p0ssible measures being suggested t0 remedy the
same. H0wever, even within these discussi0ns, the p0ssibility 0f the intr0ducti0n 0f
c0mmunity sentence as a rest0rative justice ref0rm has n0t been given much c0nsiderati0n.
At the same time, vari0us jurisdicti0ns have successfully tested c0mmunity service as a f0rm
0f alternative sentencing. N0tably, c0mmunity service n0t 0nly reduces the burden 0n the
system 0f incarcerati0n, but als0 disburdens the state exchequer. While there is ample
literature debating 0ther alternatives t0 cust0dial sentencing, c0mmunity sentencing in India
remains a relatively unexpl0red d0main. In rec0gniti0n 0f this situati0n, this paper
examines the attempts made in India t0 intr0duce c0mmunity sentencing. This is juxtap0sed
against the experiences with the system 0f c0mmunity sentencing in different legal
jurisdicti0ns. 0n this basis, a suggested m0del f0r the intr0ducti0n 0f c0mmunity service in
India has been 0utlined in this paper.

Research Questi0n:

 Whether C0mmunity Service a reas0nable punishment f0r the c0nvict?

 Whether India a suitable c0untry f0r c0mmunity service?
 Whether c0mmunity service has p0tential t0 replace c0nventi0nal punishments?

Literature Reviews:

1. M.P Jain, Indian Penal C0de

The b00k elucidates the c0ncept 0f Punishment and vari0us punishments f0r crimes, this
b00k clearly explains criminal law in India and given better understanding f0r reader.

2. Mitali Agarwal, Bey0nd the Pris0n bars

The article written by Agarwal clearly explained the p0tential and benefits 0f c0mmunity
service. She explained in simple and lucid manner that can be understandable f0r all class 0f
pe0ple.

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3. Black law Dicti0nary

This b00k will be referred in relati0n t0 the definiti0n 0f certain w0rds like C0gnate
0ffences, Min0r 0ffences and prejudice.

Research Meth0d0l0gy:

Nature 0f the study: Analytical, critical and descriptive study

S0urces 0f the study:

Primary S0urces:

Indian Penal C0de 1860, Criminal Pr0cedure C0de, 1973 and Supreme C0urt and High
C0urt Judgements.

Sec0ndary S0urces:

M.P Jain Indian Penal C0de, 1860, Mitali Agarwal, Bey0nd Pris0n bars.

M0de 0f Citati0n: Blueb00k 19th editi0n.

Sc0pe 0f the Study:

The Sc0pe 0f the Study is restricted c0mmunity service in India with examples 0f few
c0untries.

Significance 0f the Study:

The study is significant because in 21st century with impr0vements in science and medicine,
the traditi0nal and c0nventi0nal punishments best0wed 0n the c0nvicts even f0r petty
crimes seems unreas0nable. This paper 0pens pand0ra b0x t0 the readers and explains the
benefits 0f c0mmunity service as punishment and h0w it benefits t0 the c0mmunity as a
wh0le.

CHAPTERISATION (TENTATIVE):

 Intr0ducti0n
 0pen Pris0ns and C0mmunity Services
 A Study 0f C0mmunity Services m0del in 0ther Jurisdicti0ns
 Suggested M0del f0r India

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  Understanding C0mmunity Service as punishment
 C0nclusi0n
 Bibli0graphy

Table 0f C0ntents

 Intr0ducti0n
 C0mmunity Service: an unexpl0red p0tential in India
 0pen Pris0ns and C0mmunity Services
 A Study 0f C0mmunity Services M0dels in 0ther Jurisdicti0ns
Australia
Finland
New Zealand
United Kingd0m
 Understanding C0mmunity Service as Punishment
 Suggested M0del f0r India
 C0nclusi0n
 Bibli0graphy.

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 Intr0ducti0n

“ An efficient criminal justice administrati0n system is the backb0ne 0f any civilised s0ciety.
The state is 0bligated t0 uph0ld the faith rep0sed in it by its citizens f0r securing their rights.
In recent years, India has witnessed a deteri0rating Rule 0f Law Index, especially in the
realm 0f criminal justice, wherein India’s gl0bal rank is as l0w as 77 0ut 0f 126 c0untries,
as 0f 2019.1 In the past decade, vari0us pr0blems ass0ciated with the criminal justice
administrati0n system, especially the instituti0n 0f pris0ns, have been highlighted 0n
repeated instances. Particularly, the pris0ns in India have bec0me infam0us gl0bally f0r
their depl0rable living c0nditi0ns and the appalling cases 0f human rights vi0lati0ns which
0ccur within them.2 The Nati0nal Human Rights C0mmissi0n Annual Rep0rt 2015-16 f0r
instance, d0cumented vari0us such instances. Vi0lence, specifically physical and sexual
vi0lence, against inmates at the hands 0f b0th, auth0rities and 0ther pris0ners, is n0tably
c0mm0n in Indian pris0ns. Yet, despite vari0us attempts at pris0n ref0rms, c0rrecti0nal
h0mes have c0ntinued t0 be 0vercr0wded, 0ften with individuals bel0nging t0
underprivileged and uneducated secti0ns 0f s0ciety, wh0 languish behind bars f0r decades,
0ften serving m0re time than that prescribed f0r the 0ffence by law . ”

“ The number 0f pris0ners l0dged in vari0us jails in India increased fr0m 4,18,536 in 2014 t0
4,33,003 in 2016, witnessing a 3.5 per cent increase during that peri0d.3 The 0ccupancy rate
remained as high as 130.9 per cent in s0me jails during the same peri0d, with the nati0nal
average standing at 113.7 per cent, dem0nstrating the extent 0f 0vercr0wding in Indian jails.
It was further f0und that during the peri0d under study, m0st inmates were uneducated and
0nly a small percentage, acc0unting f0r 8.7 per cent 0f the t0tal inmates, had received
educati0n p0st higher sec0ndary sch00l level. It is w0rth n0ting that the number 0f under
trial pris0ners increased fr0m 2,82,076 in 2015 t0 2,93,058 in 2016,12 and 87.1 per cent 0f
t0tal pris0ners bel0nged t0 the age gr0up 0f 18-50 years, depicting h0w human res0urces

1
W0rld Justice Pr0ject, W0rld Justice Rep0rt Rule 0f Law Index 2019, available at
https://w0rldjusticepr0ject.0rg/0ur-w0rk/research-and-data/wjp-rule-law-index-2019 (Last visited 0n Dec
12, 2020).
2
Human Rights Watch, Pris0n C0nditi0ns in India, available at https://www.hrw. 0rg/sites/default/
files/rep0rts/INDIA914.pdf (Last visited 0n Dec 11, 2020)
3
Ministry 0f H0me Affairs, Nati0nal Crime Rec0rds Bureau, Pris0n Statistics 2016

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can c0ntinue t0 lay unpr0ductive behind bars in India, while taxpayers c0ntinue t0 bear their
ec0n0mic burden. It is n0tew0rthy that the t0tal expenditure f0r the financial year 2016-17
f0r all pris0ns in the c0untry was Rs. 4944.7 cr0res. Yet, it is indeed unf0rtunate that despite
the extent 0f expenditure incurred, c0nditi0ns in Indian pris0ns c0ntinue t0 be depl0rable.
The existence 0f these issues within the pris0n framew0rk f0reb0des the appr0aching
c0llapse 0f a crumbling instituti0n. Theref0re, there exists an urgent need t0 shift t0wards
c0nsiderati0n 0f the viability 0f alternatives t0 cust0dial sentencing, which is administered
thr0ugh the pris0n system . ”

Several alternatives t0 impris0nment have been implemented in India.4H0wever, even within

such eff0rts, the intr0ducti0n 0f c0mmunity sentencing has n0t been given much
c0nsiderati0n, having been dismissed as n0t being practicable t0 be given effect t0 in the
Indian setup. C0mmunity sentencing, als0 kn0wn as c0mmunity service, is part 0f an array
0f alternative sancti0ns t0 impris0nment. F0r the purp0se 0f this paper, it is defined as a
f0rm 0f n0n-cust0dial punishment f0r 0ffenders t0 undertake unpaid w0rk f0r a certain
number 0f pre-determined h0urs.In case 0f c0mmunity sentencing, vari0us types 0f w0rk
0f s0cial imp0rtance like cleaning, gardening, painting, teaching, etc., are assigned t0 the
0ffenders acc0rding t0 their skills and suitability. Such sentences are usually meant t0 be
given t0 first-time 0ffenders, c0nvicted f0r less severe 0ffences, instead 0f awarding a
sh0rt-term sentence 0r fine.

Based 0n the rest0rative and rehabilitative justice m0dels, c0mmunity sentencing h0lds
0ffenders directly resp0nsible f0r the damage they have caused t0 the s0ciety. It als0
directly pr0vides the c0mmunity with human res0urces, which w0uld 0therwise have
remained unpr0ductive f0r a l0ng peri0d 0f time due t0 incarcerati0n. Further, n0t 0nly
d0es c0mmunity sentencing help the 0ffenders acquire new skills thr0ugh supervised w0rk
activities but it als0 aids in establishing within them a p0sitive w0rk attitude and sense 0f
bel0ngingness with the l0cal c0mmunity.

M0re0ver, it reduces the 0verall burden 0n the incarcerati0n system thr0ugh dec0ngesti0n
0f the 0vercr0wded pris0ns and c0ntributi0n t0wards the shielding 0f first-time 0ffenders
fr0m interacti0n with hardened criminals. Additi0nally, it has als0 pr0ved t0 be effective in

4
Bureau 0f P0lice Research and Devel0pment, Alternatives t0 Impris0nment, available at http://
www.bprd.nic.in/WriteReadData/userfiles/file/6515844528-Part%20V.pdf (Last visited 0n Dec 11, 2020

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terms 0f reducti0n in c0sts, av0idance 0f re-entry crisis, decline in recidivism, and
impr0vement in the 0ffender’s 0verall sense 0f self-w0rth.

C0mmunity sentencing has been tested acr0ss vari0us jurisdicti0ns like the United States 0f
America, the United Kingd0m, Australia, Spain, S0uth Africa and Zimbabwe t0 address
vari0us pr0blems ass0ciated with the instituti0n 0f pris0ns. 0n the 0ther hand, intr0ducti0n
0f c0mmunity service in India has been resisted. Hence, this paper pr0p0ses a
c0mprehensive m0del 0f c0mmunity sentencing, feasible f0r implementati0n in the Indian
c0ntext, thr0ugh an analysis 0f the best practices prevailing in 0ther jurisdicti0ns. Part II 0f
the paper analyses the attempts made in India t0 intr0duce c0mmunity sentencing, with
reference t0 156th Law C0mmissi0n Rep0rt, The Indian Penal C0de (Amendment) Bill,
1978, and judicial precedents. Part III studies the systems 0f c0mmunity sentencing as
prevailing in vari0us legal jurisdicti0ns. Learning fr0m the m0dels ad0pted in 0ther
jurisdicti0ns, Part IV 0f the paper draws a c0mprehensive m0del 0f c0mmunity sentencing
as practicable in India. Lastly, Part V evaluates the implicati0ns and pr0blems which may be
ass0ciated with the implementati0n 0f such a system.

C0mmunity Sentence: an unexpl0red p0tential in India

“ With 0ver a staggering 2,17,55,186 criminal cases pending,29 the criminal justice
administrati0n system c0ntinues t0 be sluggish in India. Even a single day in several pris0ns
acr0ss India can be a harr0wing experience f0r any individual.5 Evidently, the psych0l0gical
effects 0f incarcerati0n 0n inmates are l0ng-term 0n acc0unt 0f the pain, deprivati0n,
is0lati0n, and extremely unusual n0rms 0f living that they bear. Given that the c0nditi0ns in
pris0ns are h0stile and stressful, and the pris0ners are subjected t0 an 0ften harsh and rigid
instituti0nal r0utine, the pr0cess 0f instituti0nalisati0n 0r pris0nisati0n 0f the inmates
0ccurs in resp0nse t0 the extra0rdinary demands 0f pris0n life. This pr0cess 0f integrati0n
int0 the pris0n culture due t0 its deep relati0n with s0cietal deprivati0n can manifest itself in
chr0nic manners in inmates. As a c0nsequence, during their sentence, inmates may suffer
fr0m em0ti0nal withdrawal, depressi0n, hyper-vigilance, display suicidal tendencies, engage
in substance abuse 0r sh0wcase 0ther sympt0ms 0f p0st-traumatic stress dis0rder.34 Such
psych0l0gical effects cumulatively impede their p0st-incarcerati0n rehabilitati0n and

5
Shivendra Srivatsava, Exp0sed: UP’s hell pris0n where inmates suffer vici0us t0rture and c0rrupti0n, India
T0day, September 7, 2016, available at https://www.indiat 0day.in/india/st0ry/exp0sedups-hell-pris0n-
where-inmates-suffer-vici0us-t0rture-and-c0rrupti0n-339802-2016-09-07 (Last visited 0n Dec 11, 2020);

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interfere with their successful re-integrati0n int0 a s0cial netw0rk and empl0yment setting,
and resumpti0n 0f their familial relati0nships.

Thus, the inhumane c0nditi0ns in pris0ns and the exp0sure t0 hardened criminals can lead
t0 the release 0f damaged individuals after the c0mpleti0n 0f their sentences. Even after the
release 0f the 0ffender, the stigma 0f serving a pris0n sentence persists, and the s0ciety
shuns them as an 0utcast. The s0ci0-ec0n0mic implicati0ns c0ntinue thr0ugh0ut the life 0f
the 0ffender even after serving a sentence, inhibiting pr0gress in their chance 0f re-
integrati0n int0 the c0mmunity. These adverse implicati0ns 0f incarcerati0n sh0uld be
viewed as reminders 0f the emerging need t0 n0t 0nly strengthen the pris0n system but als0
gradually diminish the use 0f pris0ns and m0ve t0wards alternative measures.

Several f0rms 0f alternatives t0 cust0dial sentencing like 0pen pris0ns, par0le, pr0bati0n,
v0cati0nal training, and rehabilitati0n centres have been s0ught t0 be intr0duced in India t0
impr0ve the criminal sancti0n system, but c0mmunity sentencing has arguably n0t been
subject t0 due c0ntemplati0n. The 0nly pr0visi0n f0r it in India exists f0r juveniles under
§18(1) (c) 0f the Juvenile Justice (Care and Pr0tecti0n 0f Children) Act, 2015,39 which
pr0vides f0r c0mmunity service f0r child 0ffenders, if the Juvenile Justice B0ard deems fit.
Devel0pments at the p0licy level have als0 remained limited, with the S0cial Justice
Department 0f Kerala 0nly recently having planned t0 bring new pr0jects aiming at
reintegrati0n 0f first-time 0ffenders int0 mainstream s0ciety and all0wing f0r 0ffenders
inv0lved in petty 0ffences sentenced t0 three years impris0nment 0r fine 0r b0th t0 engage
in c0mmunity service in lieu 0f cust0dial punishment 6
.”

L00king back several decades, the Indian Penal C0de (Amendment) Bill, 197842 (‘The
Bill’), had pr0vided f0r c0mmunity service 0rders and the pr0visi0ns therein were m0stly
satisfact0ry. As per the Bill, any 0ffender n0t under eighteen years 0f age c0uld be 0rdered
t0 w0rk f0r a certain number 0f h0urs with0ut any remunerati0n, subject t0 terms and
c0nditi0ns. Further, it pr0vided that the c0nsent 0f the c0nvict t0 perf0rm the w0rk w0uld
be required, and the c0urt w0uld have t0 be satisfied that such pers0n is suited t0 perf0rm
the w0rk required 0f him. As per the Bill, c0mmunity sentencing c0uld be awarded f0r
0ffences punishable with less than three years, with w0rk h0urs ranging between f0rty h0urs
t0 a th0usand h0urs.

6
Indian Penal C0de, 1860

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This pr0visi0n, h0wever, p0sed a maj0r discrepancy in the Bill, since §51 0f the Fact0ries
Act, 1948 specifies that n0 adult w0rker shall be required 0r all0wed t0 w0rk in a fact0ry
f0r m0re than f0rty-eight h0urs in any week. Given that a maximum 0f f0rty-eight h0urs
per week was the established n0rm, the maximum c0mmunity sentence f0r an 0ffender wh0
has c0mmitted an 0ffence punishable with a term 0f less than three years sh0uld ideally have
been estimated at five m0nths 0nly. Yet, this w0uld imply that an 0ffender wh0 c0mmits an
0ffence punishable with less than three years c0uld get away with a sentence 0f a maximum
0f five m0nths 0f c0mmunity service, which c0uld be dispr0p0rti0nate t0 the gravity 0f the
0ffence.

A c0unter t0 this stance c0uld p0ssibly have been that the durati0n prescribed in the Bill did
n0t have t0 be in c0nf0rmity with the Fact0ries Act as the service s0ught t0 be expr0priated
was n0t in the 0rdinary c0urse and instead 0n acc0unt 0f punishment f0r engagement in
criminal activities. This issue, h0wever, remained unres0lved, with the Bill lapsing due t0
the diss0luti0n 0f the L0k Sabha.44 Nevertheless, the Bill served as the first attempt t0
insert c0mmunity service as a f0rm 0f punishment under the Indian Penal C0de.

Later, the 156th Law C0mmissi0n Rep0rt in 1997 als0 discussed the pr0p0sed amendment
0f §53 0f the Indian Penal C0de45 t0 include c0mmunity service as 0ne 0f the sancti0ned
f0rms 0f punishments, and deliberated up0n Clause 27 0f the Indian Penal C0de
(Amendment) Bill, 1978, seeking t0 define the c0nt0urs 0f c0mmunity service.7 Ultimately,
it 0pined that the 0pen air pris0n system was preferable as a c0rrecti0nal measure in
c0mparis0n t0 c0mmunity service, thereby effectively refusing t0 end0rse the intr0ducti0n
0f c0mmunity service as a criminal sancti0n.

Despite these af0rementi0ned unsuccessful legislative attempts, the judiciary has c0ntinued
t0 be pr0active in attempting t0 interpret c0mmunity sentencing as a f0rm 0f punishment
f0r criminal acti0ns, thr0ugh the exercise 0f its discreti0nary p0wers. It is t0 be n0ted that
there is n0 specific pr0visi0n 0n c0mmunity service in India and all 0rders f0r the same are
passed in exercise 0f the discreti0nary p0wer vested in the c0urt t0 pass any 0ther 0rder as
it may deem fit as High C0urts, in the exercise 0f their p0wer under §482 0f the C0de 0f
Criminal Pr0cedure, can make any 0rders t0 meet the ends 0f justice.

Recently, a l0wer c0urt in New Delhi 0rdered c0mmunity service, 0bserving that
impris0nment may n0t always serve the desired purp0ses, especially when the accused is a

7
Law C0mmissi0n 0f India, supra n0te 17, 28-34

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first-time 0ffender, given that harsh views may ruin his entire future while als0 taking away
fr0m his chances 0f ref0rmati0n. The p0siti0n taken by the l0wer c0urt perhaps draws fr0m
the dictum 0f Pappu Khan v. State 0f Rajasthan8, in which the Supreme C0urt 0bserved that
a welfare state cann0t aff0rd a large n0n-pr0ductive pris0n p0pulati0n as it imp0ses a
heavy burden 0n the state exchequer.

Theref0re, the Apex C0urt expressed that it is in the interest 0f the State t0 ref0rm pris0ners
by teaching them techniques and skills which w0uld ensure a s0urce 0f livelih00d t0 them
after they are released fr0m jail.50 Further, in Babu Singh v. State 0f U.P.,9 the Supreme
C0urt held that rest0rative devices thr0ugh means 0f c0mmunity service, meditative drill 0r
study classes sh0uld be inn0vated up0n t0 help redeem the 0ffender.

It can theref0re, be argued that the judiciary has, t0 a degree, rec0gnised the benefits 0f
c0mmunity sentencing. H0wever, like 0ther jurisdicti0ns, legislati0n is still required f0r
m0re extensive use 0f this alternative.

Open Pris0ns and C0mmunity Services

“ At this juncture, it is suggested that a discussi0n juxtap0sing the system 0f 0pen pris0ns
already prevalent in India, with c0mmunity sentencing, shall be fruitful. The basic difference
between the tw0 is that while c0mmunity sentencing is an alternative t0 cust0dial
sentencing, 0pen jails are part 0f the p0st-cust0dial ref0rms. The idea behind c0mmunity
sentencing pertains t0 n0t being c0nfined behind any perimeters but rather perf0rming
unpaid w0rk 0f s0cial imp0rtance t0 und0 the l0ss caused t0 the s0ciety by the acts
c0mmitted by the 0ffender. This arguably als0 serves t0wards rem0ving the stigma attached
t0 individuals having served pris0n sentences, and subsequently av0iding 0ther pr0blems
ass0ciated with incarcerati0n, as discussed in Part I.

In 0pen pris0ns, depending 0n the nature 0f the pris0n, the state has the added resp0nsibility
t0 either pr0vide l0dging, empl0yment 0r b0th, which in itself is a cumbers0me and
expensive pr0cess. Unlike 0pen pris0ns, n0 physical infrastructure is required t0 be set up
by the g0vernment t0 h0use the 0ffender and his family in c0mmunity sentencing. Rather,
the 0ffender c0ntinues living with his family and rep0rts f0r the assigned w0rk and
perf0rms the same under the supervisi0n 0f an app0inted 0fficer.

8
Pappu Khan v. State 0f Rajasthan, 2005 SCC 0nLine Raj 348: 2005 Cri LJ 4732,
9
Babu Singh v. State 0f Uttar Pradesh, (1978) 1 SCC 579: (1978) 2 SCR 777

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It is als0 t0 be n0ted that while there are a different set 0f rules ad0pted by each 0pen jail,
m0st 0f them, alth0ugh permit pris0ners t0 leave pris0n gr0unds, restrict their physical
m0vement bey0nd a designated area, and require inmates t0 rep0rt f0r evening r0ll calls.
C0mmunity sentencing generally d0es n0t entail any such elab0rate regulati0n, and the few
which are prescribed generally f0r rep0rting and perf0rming the said service. In 0pen
pris0ns, the 0nus 0f finding empl0yment lies 0n the pris0ner himself, wh0 may 0ften find it
difficult t0 get empl0yed because 0f his status as an 0ffender and the rules and c0nditi0ns
imp0sed as a part 0f their sentence.58 0n the 0ther hand, in case 0f c0mmunity service
sentences, c0urts require 0ffenders t0 w0rk 0n pr0jects which are identified as having s0cial
imp0rtance.

Further, since many 0ffenders c0me fr0m underprivileged backgr0unds, c0mmunity service
can als0 act as a means 0f pr0viding training t0 them and acquiring new skills, while
residents 0f 0pen pris0ns w0uld largely have t0 depend 0n their existing skills t0 gain
empl0yment 0utside the pris0n premises. Theref0re, given these relative benefits 0f
c0mmunity sentencing 0ver the system 0f 0pen pris0ns, which is being readily embraced as
an alternative t0 the rig0r0us cust0dial impris0nment regime, it is argued that the time has
c0me t0 rec0nsider the feasibility 0f ad0pting c0mmunity sentencing as a f0rm 0f
punishment in India . ”

A Study 0f C0mmunity Sentencing M0dels in 0thers Jurisdicti0ns

“ C0mmunity sentencing has spread acr0ss the w0rld, albeit unevenly, m0stly thr0ugh0ut
Western Eur0pe, with limited use in Asia and S0uth America. Yet, the imp0rtance 0f the
same appears t0 have been increasingly rec0gnised in the internati0nal c0mmunity in the last
few decades. N0tably, the United Nati0ns Standard Minimum Rules f0r N0n-cust0dial
Measures (The T0ky0 Rules) suggests member nati0ns t0 ad0pt alternatives t0 cust0dial
measures like c0mmunity sentencing.10 Further, the gr0und-breaking Kampala Declarati0n
0n Pris0n C0nditi0ns in Africa als0 rec0mmended that c0mmunity sentences be preferred
in c0mparis0n t0 traditi0nal impris0nment.

While variati0ns have been witnessed in h0w these rec0mmendati0ns 0f integrating

c0mmunity service m0dels within the criminal sentencing regime are implemented acr0ss
vari0us jurisdicti0ns, c0mm0nly, as part 0f ad0pted m0dels, 0ffenders c0nvicted f0r min0r
10
United Nati0ns Standard Minimum Rules f0r N0n-cust0dial Measures (December 14, 1990)

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0ffences undertake a c0urt-mandated number 0f h0urs 0f unpaid w0rk under supervisi0n in
all the studied jurisdicti0ns. In several c0untries theref0re, c0mmunity sentencing has
achieved a p0siti0n 0f an intermediate sancti0n between the alternatives 0f pr0bati0n and
impris0nment.

In an eff0rt t0 better understand h0w nati0ns integrate c0mmunity sentencing, I have

selected eight jurisdicti0ns f0r a study 0f their c0mmunity sentencing m0dels. In all 0f these
jurisdicti0ns, c0mmunity sentencing is awarded in the f0rm 0f unpaid w0rk t0 first-time
0ffenders and may include, but is n0t limited t0, mental health and alc0h0l treatment, drug
rehabilitati0n, c0unselling sessi0ns, skill training, and accredited pr0grammes aimed at
changing criminal behavi0ur. W0rk like rem0ving graffiti, painting, clearing wastelands,
gardening, dec0rating public places and buildings may als0 be 0rdered t0 be perf0rmed at
NG0s, g0vernment h0spitals, palliative centres, l0cal b0dies etc., is undertaken by 0ffenders
under the supervisi0n 0f a ‘c0mmunity payback supervis0r

In this part, theref0re, vari0us fact0rs such as the suitability 0f the 0ffender, the number 0f
h0urs awarded, the supervising mechanism, the breach regulati0n, and the effectiveness,
al0ngside the public percepti0n regarding the c0mmunity service rendered, have been
0utlined f0r each jurisdicti0n .
”

Australia

In Australia, each state has a different criminal justice administrati0n system due t0 the
federal-state c0mp0siti0n. The states have their 0wn c0mmunity service schemes but these
schemes are cumulatively characterised by the f0ll0wing elements. Firstly, the w0rk h0urs
which can be awarded can range fr0m between f0rty t0 seven hundred and fifty h0urs.
Sec0ndly, the c0mmunity c0rrecti0n 0rders d0 n0t exceed five years. Thirdly, th0se
engaged in pr0bati0nary services assess the 0ffenders’ suitability f0r c0mmunity service,
pri0r t0 the sentencing, and advice the c0urt 0n the same. F0urthly, 0ffenders are supervised
by c0mmunity service staff while serving their 0rders. In s0me Australian jurisdicti0ns,
c0mmunity service can als0 be applied in lieu 0f a fine.

The trends regarding the number 0f pe0ple perf0rming c0mmunity service-based sentences
are varied acr0ss jurisdicti0ns in Australia. Yet figures have been pr0mising, with an
increase 0f f0urteen percent being n0ted in the average daily number 0f pers0ns serving
c0mmunity-based sentences (including n0n-cust0dial sentences such as c0mmunity service),
since June 2018.73 As 0f June 2019, 79,134 pe0ple were undertaking c0mmunity based
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sentences acr0ss Australia, indicating a five percent increase since March 2019 and n0table
f0rty percent increase since June 2009. Further research c0nducted am0ng a sample in
Vict0ria indicated that when pr0vided with viable alternatives t0 impris0nment, pe0ple are
likely t0 prefer alternatives t0 building m0re pris0ns.

Finland:

“ C0mmunity service is part 0f a general punishment rec0gnised under the Criminal C0de 0f
Finland since 1995.77 In terms 0f durati0n, f0urteen t0 tw0 hundred and f0rty h0urs 0f
c0mmunity service can be awarded. While sentencing t0 c0mmunity service is generally
awarded when the sentence f0r the 0ffence is less than eight m0nths 0f impris0nment, 0ther
prec0nditi0ns may als0 be 0utlined as per legal p0licy. In 0ther cases, where c0mmunity
service is awarded t0 supplement a sentence 0f c0nditi0nal impris0nment exceeding eight
m0nths, up t0 ninety h0urs 0f c0mmunity service may be 0rdered. Under Finland’s legal
system, 0ne day 0f impris0nment is als0 capable 0f being c0nverted t0 0ne h0ur 0f
c0mmunity service.

It is the resp0nsibility 0f the Criminal Sancti0ns Agency t0 assess the suitability 0f

0ffenders f0r c0mmunity service and t0 supervise their perf0rmance while serving such a
sentence. F0r the purp0se 0f making an assessment 0n the request 0f the pr0secut0r, a pre-
sentence rep0rt is prepared by the Agency, c0mmenting 0n the suitability 0f the 0ffender f0r
perf0rming c0mmunity service as per a designated sentence plan

In Finland, recidivism has been f0und t0 be slightly l0wer after c0mmunity service than
after pris0n sentences and a m0re suitable sancti0n f0r th0se wh0 lack experience in
pris0ns. 0ver half 0f all the 0ffenders sentenced t0 c0mmunity service were c0nvicted f0r
the 0ffence 0f aggravated drunken driving. Ar0und 3600-3700 c0mmunity service sentences
are enf0rced annually, 0f which m0re than eighty percent are c0mpleted .”

New Zealand:

“ C0mmunity w0rk in New Zealand was intr0duced by the Sentencing Act, 2002. C0mmunity
sentence in New Zealand inv0lves unpaid w0rk, treatment sentences, participati0n in s0me
f0rm 0f rehabilitati0n, and surveillance sentences, 0ften utilising electr0nic m0nit0ring and
restricti0ns 0n m0vement within the c0mmunity. The sentences range fr0m f0rty h0urs t0
f0ur hundred h0urs and can be sh0rtened by ten percent if an 0ffender d0es g00d w0rk.89

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Further, 0ffenders with l0nger sentences must c0mplete at least 0ne hundred h0urs within
six m0nths.

C0mmunity service has f0und t0 be w0rking in a p0sitive manner in New Zealand. In 2018,
17,829 c0mmunity w0rk sentence 0rders were given t0 0ffenders in New Zealand. It has
als0 been f0und that s0me 0ffenders benefited fr0m the pr0jects t0 such an extent that they
c0ntinued as v0lunteers even after their h0urs were served. Th0ugh it is difficult t0
accurately determine an 0verall public 0pini0n 0n the c0mmunity service, a high rate 0f
0rders reflects the public demand f0r it .
”

United Kingd0m

“ In the United Kingd0m, c0mmunity service is referred t0 as c0mmunity payback and is

implemented by the Ministry 0f Justice. First-time 0ffenders, pe0ple with mental health
c0nditi0ns and th0se wh0 sh0w pr0mise 0f ref0rmati0n are awarded unpaid w0rk 0f f0rty
t0 three hundred h0urs depending 0n the gravity 0f the crime. Apart fr0m this, 0ther
c0nditi0ns such as curfews, restricti0ns 0n travel 0r the requirement 0f wearing an
electr0nic tag may als0 be imp0sed 0n the 0ffender. The extensive use 0f c0mmunity
payback is evidenced by taking a l00k at the statistical figures. In 2018, 83,022 0rders were
passed in the United Kingd0m.

A mixed public percepti0n regarding c0mmunity sentencing has emerged in the United
Kingd0m. Despite 0ffenders having largely f0und it t0 be helpful, the public is still n0t
c0nvinced that it is as effective as a pris0n. The 0ffenders are 0rdered t0 undertake an
educati0n, training and empl0yment c0urse which makes them capable 0f taking up j0bs in
future. H0wever, the instances 0f breach by the 0ffenders are frequent and they have t0 be
sent back t0 the pris0ns 0r alternatively tw0 hundred h0urs 0f unpaid w0rk are added t0
their sentences. H0wever, it is being rec0gnised that c0mmunity payback has an increasing
r0le t0 play and hence, ref0rms such as enlisting m0re c0mmunity gr0ups and inv0lving the
private and v0luntary sect0rs are being taken up t0 help in the successful enf0rcement 0f the
pr0gram . ”

Spain

“ Article 49 0f the Criminal C0de, 1995 0f Spain pr0vides f0r c0mmunity service wherein the
0ffender perf0rms specific activities 0f public utility which may have relati0n t0 the 0ffence
c0mmitted, f0r a maximum 0f eight h0urs. C0mmunity service may range fr0m thirty-0ne

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t0 0ne hundred and eighty days f0r less seri0us penalties. In s0me cases, each day 0f
impris0nment has t0 be transf0rmed int0 0ne day 0f service.

The 0rder is required t0 be c0mpleted within 0ne year 0f beginning the w0rk, which is
generally n0t p0ssible, particularly f0r 0ffenders with full-time empl0yment. Thus, the
0rders are usually n0t c0mpleted within 0ne year and are capable 0f expiring. This is an
unnecessary pr0cedural hurdle and sh0uld arguably be d0ne away with. The Spanish
Criminal C0de further pr0vides that the w0rk pr0vided under c0mmunity service sh0uld n0t
be against the dignity 0f the c0nvict 0r f0r the attainment 0f ec0n0mic interests. The law
suggests that c0mmunity service 0rders may als0 include participati0n in w0rksh0ps 0r
trainings 0r re-educati0n pr0grammes 0n lab0ur, culture, traffic educati0n, sexual and 0ther
similar matters .”

In recent years, c0mmunity service has been used extensively in Spain and there have far-
reaching devel0pments in the implementati0n and supervisi0n 0f 0rders, fr0m maj0rly
interventi0nist practices t0wards increasingly managerial styles. In 2018, 51,070 such 0rders
were given in Spain. H0wever, this has n0t led t0 a reducti0n in the use 0f pris0n sentences
as the pris0n p0pulati0n is gr0wing rapidly as well.

Singap0re

“ C0mmunity 0rder in Singap0re includes mandat0ry treatment 0rder

A. Day rep0rting 0rder, c0mmunity w0rk 0rder, c0mmunity service 0rder and sh0rt
detenti0n 0rder.

B. The termin0l0gy used in Singap0re is distinct fr0m that in 0ther jurisdicti0ns.

C0mmunity w0rk 0rder as per §344 0f Singap0re’s Criminal Pr0cedure C0de applies t0 an
0ffender wh0 is sixteen years 0f age 0r ab0ve, if the c0urt is 0f the view that the
perf0rmance 0f such 0rders ass0ciated with the 0ffence under the supervisi0n 0f a
c0mmunity w0rk 0fficer will lead t0 ref0rmati0n. The 0rder 0f the c0urt awarding
c0mmunity w0rk specifies the maximum number 0f h0urs t0 be perf0rmed and any 0ther
c0nditi0ns as the c0urt may deem fit.

§346(2)(a) 0f Singap0re’s Criminal Pr0cedure C0de further pr0vides f0r c0mmunity

service 0rders t0 be awarded p0st satisfacti0n regarding suitability 0f the 0ffender examined

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0n the basis 0f physical and mental c0nditi0n 0f the 0ffenders. Further, a rep0rt is als0
called up0n fr0m the c0mmunity service 0fficer regarding the suitability 0f the 0ffender.
The remaining pr0visi0ns are similar t0 §344. Th0ugh the C0de is may n0t be t00 detailed
in relati0n t0 c0mmunity service 0rders, it can be inferred fr0m available annual rep0rts that
c0mmunity service 0rders have been implemented since 2011 f0r 0ffenders aged 16 years
0ld and ab0ve, wh0 have c0mmitted 0ffences punishable with a term 0f impris0nment n0t
exceeding 3 years, and as 0f 2016, such 0rders were implemented with a tenure 0f f0rty t0
tw0 hundred and f0rty h0urs . ”

In Singap0re, 0ffenders have f0und themselves t0 have benefited fr0m c0mmunity service
0rders by acquiring new skills, life values and sensitisati0n as human beings.108 In 2016,
sixty seven 0ffenders were placed 0n the CS0 and ninety percent 0f them c0mpleted it
successfully.109 The lesser number 0f sentences can arguably be attributed t0 the 0verall
l0w rate 0f crime in Singap0re.

Understanding the System 0f C0mmunity Services

“ Fr0m the ab0ve discussi0n, it can be br0adly c0ncluded that c0mmunity system has been
m0stly faring well in all the af0rementi0ned jurisdicti0ns. In all the af0rementi0ned
c0untries, c0mmunity service has been br0ught t0 s0lve the pr0blem 0f 0vercr0wding 0f
pris0ns and increasing c0sts as well as t0 rehabilitate the 0ffenders, especially first-time
0ffenders c0nvicted f0r petty 0ffences. Many 0f the studied jurisdicti0ns (barring New
Zealand, Singap0re, Spain and United Kingd0m) c0nduct a pre-sentencing screening 0f the
0ffenders t0 assess their suitability and thereby a rep0rt is prepared by the c0ncerned
department and submitted t0 the judge. 0klah0ma has a c0mparatively c0mplex pre-
screening pr0cess where n0t 0nly is a detailed rep0rt s0ught but als0 a supervisi0n plan is
called f0r in advance .”

“ Further, c0mmunity service in Spain and Singap0re require that the w0rk sh0uld have s0me
relati0n with the 0ffence c0mmitted. The number 0f h0urs varies in each jurisdicti0n
wherein a range 0f minimum and maximum h0urs has been set up. Finland appears t0 be the
m0st lenient as it c0nverts 0ne day 0f impris0nment int0 0ne h0ur 0f c0mmunity service
0rders.

S0me jurisdicti0ns such as New Zealand 0ffer distinctive features, which incentivises the
successful perf0rmance 0f the 0ffender by sh0rtening the sentence by ten percent if the
0ffender perf0rms g00d w0rk and/0r 0ffering him twenty percent 0f the h0urs 0n skill
17 | P a g e
training. Unlike 0ther jurisdicti0ns, paid c0mmunity w0rk in New Zealand and United
Kingd0m may als0 inv0lve electr0nic surveillance. S0me jurisdicti0ns such as New
Zealand, Australia, Spain, 0klah0ma and Finland als0 require the sentence t0 be c0mpleted
within a given time frame. Further, in certain jurisdicti0ns c0mmunity sentencing is
m0nit0red by a specifically set up instituti0n 0r by pr0bati0n b0ards . ”

“ A breach 0f the c0mmunity sentence can be dealt with a fine, an increase in the h0urs 0f
w0rk 0r sending back the 0ffender t0 pris0n. New Zealand 0ffers an0ther exclusive feature
viz. requiring the w0rk h0urs t0 be repeated if the 0ffender d0es n0t perf0rm the tasks
satisfact0rily. While it is difficult t0 assess the public percepti0n regarding the sentence
accurately, it has been f0und in m0st jurisdicti0ns that the public is 0ptimistic c0nsidering
the rate 0f use 0f c0mmunity service 0rders. Yet certain secti0ns 0f the p0pulati0n may
sh0w reservati0ns t0 c0mmunity sentencing in jurisdicti0ns where it is implemented strictly,
such as in the United Kingd0m. Fr0m the 0ffender’s perspective, c0mmunity sentencing has
been p0sitively received due t0 its rehabilitative and rest0rative nature . ”

Further, the rate 0f recidivism in c0mmunity sentencing has als0 been f0und t0 be better
than that in pris0ns. In all the af0rementi0ned jurisdicti0ns, c0mmunity sentencing 0rders
have been res0rted t0 quite extensively and have been f0und t0 be successful.

Suggested M0del f0r India

“ It can be c0ncluded fr0m the f0reg0ing discussi0n that c0nventi0nally; c0mmunity service
schemes usually require first-time petty 0ffenders t0 undertake a predetermined and c0urt-
mandated number 0f h0urs 0f unpaid supervised w0rk. While 0stensibly beneficial, the
m0dels used abr0ad cann0t be transplanted while seeking t0 implement c0mmunity service
as a sentencing measure in India. Resultantly, vari0us issues such as th0se 0f determining the
suitability 0f 0ffenders, the c0nditi0ns t0 be imp0sed, the nature and durati0n 0f the w0rk,
the measures f0r m0nit0ring, and the issue 0f breach 0f the 0rder have t0 be analysed while
devising a m0del 0f c0mmunity sentencing f0r India . ”

C0nclusi0n:

“ C0mmunity service as a f0rm 0f alternative sentencing has pr0ved t0 be effective in vari0us

jurisdicti0ns ar0und the w0rld. If such 0rders are implemented effectively, the services 0f
the 0ffenders can serve as a valuable res0urce f0r g0vernments. With the resultant
dec0ngesti0n 0f pris0ns and the utilisati0n 0f 0ffenders f0r pr0viding services t0 the

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public, a reducti0n 0f burden 0n the state exchequer can be reas0nably expected.
Additi0nally, c0mmunity service 0rders w0uld n0t 0nly av0id the stigmatisati0n related t0
impris0nment, but als0 assist in the quick assimilati0n 0f 0ffenders back int0 the s0ciety.
Understandably, there may be vari0us 0bstacles in the efficient integrati0n 0f c0mmunity
service 0rders within the br0ader sentencing p0licy 0f a nati0n. In particular, a pr0per
legislati0n w0uld be required f0r the executi0n 0f c0mmunity service-based sentences in
India. Evidently, f0r such a legislati0n t0 be enacted and implemented, it is essential that the
0rgans 0f the g0vernment ad0pt a p0sitive attitude t0wards n0ncust0dial appr0aches t0
criminal justice .”

“ The p0lice w0uld particularly play a maj0r r0le in the implementati0n 0f c0mmunity
sentencing and w0uld require pr0per sensitisati0n regarding its effectiveness in the pr0cess.
M0re0ver, the judiciary w0uld have t0 play the r0le 0f a vanguard t0 ensure strict
c0mpliance with the 0rders. The c0urts w0uld then have t0 ad0pt a balance between the
c0rrective and the deterrent machinery, depending 0n the specific facts 0f each case. It
w0uld als0 have t0 be ensured that while c0mmunity sentencing is enc0uraged, the
discreti0n vested with the c0urt is n0t misused by the privileged secti0ns t0 abuse the
machinery 0f justice. Further, it is imp0rtant t0 keep in mind that the State shall n0t be able
t0 undertake the implementati0n 0f c0mmunity service sentences in is0lati0n. In such
regard, a r0bust c0mmunity supp0rt fr0m the general public w0uld be required t0 transf0rm
the justice system t0 be truly rehabilitative in nature. Thus, a c0nstructive appr0ach t0wards
a ref0rmative justice administrati0n system w0uld need t0 be pr0m0ted n0t 0nly am0ng all
inv0lved state instituti0ns, but als0 the s0ciety at large, in 0rder t0 actualise the g0als 0f
c0mmunity service sentences 0nce it is accepted within the c0nventi0nal f0ld 0f criminal
sentences in India . ”

Bibli0graphy

 M.P Jain, Indian Penal C0de, 1860

 Criminal Pr0cedure C0de, 1976

 W0rld Justice Pr0ject, W0rld Justice Rep0rt Rule 0f Law Index 2019, available at
https://w0rldjusticepr0ject.0rg/0ur-w0rk/research-and-data/wjp-rule-law-index-2019
(Last visited 0n December 11, 2020).

 Human Rights Watch, Pris0n C0nditi0ns in India, available at

https://www.hrw.0rg/sites/default/ files/rep0rts/INDIA914.pdf (Last visited 0n Dec
11, 2020)

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  Ministry 0f H0me Affairs, Nati0nal Crime Rec0rds Bureau, Pris0n Statistics 2016

 Bureau 0f P0lice Research and Devel0pment, Alternatives t0 Impris0nment,

available at http:// www.bprd.nic.in/WriteReadData/userfiles/file/6515844528-Part
%20V.pdf (Last visited 0n Dec 11, 2020)

 Shivendra Srivatsava, Exp0sed: UP’s hell pris0n where inmates suffer vici0us t0rture
and c0rrupti0n, India T0day, September 7, 2016, available at
https://www.indiat0day.in/india/st0ry/exp0sedups-hell-pris0n-where-inmates-suffer-
vici0us-t0rture-and-c0rrupti0n-339802-2016-09-07 (Last visited 0n Dec 11, 2020);

 Law C0mmissi0n 0f India, supra n0te 17, 28-34

 Pappu Khan v. State 0f Rajasthan, 2005 SCC 0nLine Raj 348: 2005 Cri LJ 4732,

 United Nati0ns Standard Minimum Rules f0r N0n-cust0dial Measures (December

14, 1990).

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