FROM RETRIBUTION TO RESTORATION: THE ROLE OF COMMUNITY SERVICE IN INDIA’S CRIMINAL JUSTICE DEVELOPMENT
The Indian criminal justice system has always believed in punishment without affording much scope for rehabilitation, where punishment was seen as a deterrent.
The Indian Penal Code provided punishments like imprisonment for life, a specific term, or the capital penalty, leaving a very narrow room for restorative and reconstructive measures, per se. Thus, because of this, there was overcrowding of jails, staff shortage, lack of setup, etc.i The Bhartiya Nyaya Sanhita, 2023, has made a breakthrough in restorative.
This article aims to understand the earlier concept and aim of punishment and how it has developed over the years. It is also essential to know why this change occurred and how community service played an important role in moving India’s criminal justice system away from retribution toward restoration.
INTRODUCTION
Over time, it was viewed that law is the power that directs the behaviours of individuals through the enactment of a sovereign or an approved agency within the society. Thus, the law is intended to keep order and create acceptable behaviour to save all its members. In the current parlance, therefore, a crime is understood in terms of actions that breach such laws, which would typically be considered immoral by the wider community.
Although not all acts of disobedience to the law qualify as a crime.
When the act has reached a degree that it may be punished, it is called a crime. Such crimes are seen to be very severe against humanity, and thus, offenders need to be punished. Otherwise, when a law perceives wrongdoing as not so severe, it opts for restitution for damages instead of punishment.
Such slighted wrongs are termed civil wrongs or torts, indicating that a wrong was done, but it does not constitute a crime.
Crime, on the other hand, treated with seriousness and punished, is performed for the attainment of four main objectives:
1. warning others about the consequences of such behaviour; 2. deter the offender from committing it again; 3. rehabilitate the offender by treating his behaviour problems; 4. satisfy the society’s need for justice and vengeance
The Indian criminal justice system has always had a theory of retribution against a crime and proportional punishment as a deterrent. According to the current report of December 2022, Indian prisons presently hold 573,220 prisoners against a sanctioned strength of 436,266, implying an average occupancy ratio of 131.4 per cent. These jails are designed to keep around 100, but they keep almost 131ii.
Overcrowding differs from state to state, whereas some of these states face even greater occupancy levels. U.P.’s regional jails have shown more than 208% habitation, whereas some jails in Uttarakhand have reached over 300%. iii There is enormous pressure on resources under such conditions, so they are bad for the health and safety of the prisoners.
Additionally, the rehabilitation processes in the prisons become nearly futile. Another prominent cause of overcrowding is the unrealistically high number of undertrial prisoners awaiting trial.
COLONIAL LEGACY AND THE RETRIBUTIVE PHILOSOPHY
The IPC was drafted during British rule, and its emphasis was thus on retributive justice-punishing offenders so that crime may be deterred. Under this system, prison and capital punishment received priority over rehabilitative alternatives, such as community service.
The lawmakers have only conceded these shortcomings after years, thereby incorporating them into the new laws, with the institution of community service as a form of punishment for certain petty andminor offences. The shift is therefore made in the criminal law system in India from punitive and punishment-based forms to restorative justice and rehabilitation.
ANALYSIS OF THE NOTION OF COMMUNITY SERVICE IN INDIA
Community service as a form of punishment is gaining importance in the Indian courts.
Amongst the many alternatives provided by the Indian courts to fulfil the real and meaningful purpose of punishment, community service has become a powerful tool. The Supreme Court emphasised that justice should be pursued through restorative justice measures, such as community service, not only through punishments and harsh captivity.iv
In like manner, the High Court of M.P. has also assumed a premise on the bail conditions laid down in the old criminal law, especially in Section 437(3), which may involve community service conditions. The court emphasises community service as an alternative bail condition, which, in its opinion, would benefit offenders by providing accountability and psychosocial benefits. In that context, an impression is created that adult community service may be considered a real alternative in restorative considerations for pre-trial and post-trial reforms.vi Before the enactment of the new Criminal Law, termed the BNS, in India, community service was only recognised under section 18 of the Juvenile Justice Act, 2015. viiAccording to this provision, community service can be given as a sentencing option for juvenile offenders, emphasising rehabilitation rather than being punitive. The recent incident in Pune put the whole concept under national attention when a minor driving a luxury car was said to be involved in a horrifying case wherein two people lost their lives. This case raised public outrage and debate regarding the applicability of the law on juvenile offenders. To that end, the Juvenile Justice Board had first awarded a sentence of only 15 days of community service, mandating the young offender to work with the traffic police and write an essay on road accidentsviii . But there was outrage from the public and the various pressure groups, as well as members of the deceased families, demanding stronger convictions in lieu of public sentiment of a serious nature.
THE BRINGING OF THE CONCEPT OF COMMUNITY SERVICE IN THE NEW BNS 2023
The Bhartiya Nyay Sanhita (BNS) 2023 is a revolutionary transformation in India’s criminal justice system to recognise community service as a legitimate and permissible form of punishment. This important recognition serves as a watershed between punishment purely as a response to crimes and a crucial difference from the conventional punitive model of justice toward one much more holistic in development and delivery- that of restorative justice, which advocates rehabilitation and reintegration of the offenders instead of the greatly emphasised view on retribution and punishment. Section 4(f) of BNS provides for punishment implicitly sanctioned by law. As mentioned in the section, the sentence comprises all the conventional penalties, such as death, imprisonment, forfeiture of property, and monetary fines. Now, it provides for a newer punishment called “community service”. Formal legislative endorsement of community service will empower courts in deciding the imposition of such sentences, especially for non-violent and minor offences, thus widening the net by which judicial responses can capture less grievous infractions.ix
Although the BNS does not frame any sophisticated definition of “community service,” helpful insight can be found in the Explanation to Section 23 of the Bhartiya Nagarik Suraksha Sanhita (BNSS).
According to it, community service would cover work directed by courts in service to the community, importantly, being unpaid. By excluding any unreasonableness of monetary compensation to the convict for the service provided, this definition is in the spirit of restorative justice, which seeks to make the perpetrator return to society unconditionally.
Through its introduction of community service, the BNS will tackle several pressing problems confronting the criminal justice system, including problems such as overcrowding of prisons, recidivism of offenders, and the need for effective rehabilitation. It shows that this innovative measure is but part of a more encompassing commitment of the law to reform and modernise the justice system and better respond to present societal issues.
CONCLUSION
Including community service as a punishment under the Bharatiya Nyaya Sanhita (BNS), 2023, is a step forward for restorative justice in Indian law. The movement attempts to reform offenders by allowing them to give back to society positively instead of solely concentrating on retribution. The BNS is deficient in terms of a precise definition of what amounts to community service, to which offences it can be applied, and how monitoring and enforcement are to be undertaken. Such uncertainty has the potential to cause inconsistent sentencing and possible misuse, undermining the success of the provision and the confidence of the public in the justice systemWritten by Arya Jain,
Legal Intern at Sandhu Law Offices,
LL.B. (Second Year), Symbiosis Law School
