The most important contention of giving prison sentence for committing a crime in India is to reform the guilty person by isolating them from the society and community and work on rehabilitating the prisoner so that when they are released they can reintegrate into society easily and contribute as a normal person would be able to, this ideology of reformation comes from the principle of criminal justice which talks about the evil mind and that the main aim of criminal justice system should be to remove the evilness from the mind of the prisoner but what about the offenses which are based on necessity such as stealing food or offences which are done by first time offenders?
The only answer to these questions is to explore alternative means of punishment and the most likely answer is Community Service as it is the one which has been applied in different jurisdictions in the past e.g., Britain, Spain, Singapore, etc. and the fact that an offence is considered to be a crime only when it is done against the society or community as a whole makes the concept of Community Service more logical and reasonable but it is not as easy as it sounds since most of the concepts when applied in practical life often give results which are unexpected and sometimes undesirable so this paper aims to examine such consequences and challenges and possible remedies and how is it better or worse than Custodial form of punishment.
On paper advantages of community service are that the state saves precious incarceration resources when offenders are penalised through alternative sentencing. Offenders will benefit much from serving their terms and will be able to continue working. Non-custodial sanctions have the advantage of increasing the possibility that the offender will be able to work, pay reparation, and keep contact with his family, which is beneficial to the victim. The concepts of community service are not constrained by any boundaries. Rather, it allows the offender a chance to make amends by conducting unpaid community service to compensate for the harm done to society as a result of his or her actions
PRACTICAL DIFFICULTIES OF APPLICATION OF COMMUNITY SERVICE IN INDIA
While this form of punishment has already been applied in various countries, the same model cannot be borrowed and applied in India as India lacks the expertise, infrastructure required, proper legislation and training of personnel that will be implementing and supervising the offenders. In 1978, an attempt was made to introduce Community Service by introducing The Indian Penal Code (Amendment) Bill, 1978. According to this bill, the punishment of an offence in community service awarded with less than 3 years and working hours ranges between 40 hours to 1000 hours but the bill lapsed as the parliament was dissolved and because the duration of working hours did not conform with the Factories Act.
A lower court in New Delhi recently ordered the criminal to perform community service. The court noted that incarceration may not always achieve the desired results, particularly when the defendant is a first-time offender. The court also stated that a heavy punishment may jeopardise the accused’s entire future and eliminate their chances of repentance. The Supreme Court held in Pappu Khan v. the State of Rajasthan that the welfare state cannot support a large non-productive prison population since it puts a strain on the state budget.
Another challenge of introducing the punishment of community service is the loopholes in its implementation such as the nodal officer for supervision could be bribed or corrupted as it will require some amount of effort to keep a watch on the work being done by the offender. Another major issue is that the punishment should not go against the human rights of the prisoner and the amount, nature of work should not harm the humanity standards, the same type of work shouldn’t just be associated with prisoners as the ordinary workers of that profession might face ostracization from society.
BENEFITS OF COMMUNITY SERVICE
While there are a few limitations when it comes to practical application of the concept, the pros outweigh the cons as the aim of reformation is fulfilled and there are more realistic benefits which save resources spent on non-productive means of punishment which is custodial. Alternatives to custodial sentencing, according to the Home Affairs Committee (HAC) report, are a suitable starting point for analysing how community punishments have been advocated as a strategy to control and reduce prison numbers. It will lower the number of inmates entering the prison and reduce the facility’s congestion.
One of the best advantages of community service is the fact that the person gets to continue his normal life after serving some sort of punishment and while this may anger the victim who might feel they deserved a more harsher punishment but the application of this punishment would need to be linked with the gravity of the offense and whether some offenses cannot have a reformative sentence for example, Murder under Section 302 of the Indian Penal Code cannot have cannot have community service as a punishment as it is much serious offense than theft or a financial crime.
The criminal justice system in India continues to be lethargic, with over 2,66,23,054 criminal cases pending. Overcrowding in prison has a negative impact on offenders, rather than being used to rehabilitate them and the best to reduce this number is to introduce non-custodial forms of punishments for smaller offenses which will fulfil the purpose of rehabilitation as well as reformation. On December 31, 2016, the total number of inmates in Indian prisons was 4,33,003. The age group of 30 to 50 years old accounts for 44.0 percent of the prisoners, while the age group of 18 to 30 years old accounts for 43.1 percent. Giving community service as a punishment instead of prison sentence would eventually reduce the burden on the prison administration.
IMPLMENTION IN DIFFERENT JURISDICTIONS
CANADA – Richard M. Zubrycki contends in Community Based Alternatives to Incarceration in Canada that “the Canadian criminal justice system supporting the safe use of community alternatives (would result in a considerable reduction) in prison populations”. He mostly highlights community-based options, such as first-time offenders receiving intervention to help them avoid committing the crime again. Another effective option is for the Canadian government to fund family group counselling; this is important because it helps to establish a stronger, more tightly connected support network, which reduces the likelihood of the offender committing the crime again. Canada has also conducted studies to determine which Community Programs are most effective for certain categories of criminals.
UNITED STATES – New York Metropolis, the United States’ largest city, has established a significant alternative to imprisonment programme for its jail system. Judges can send people who have committed misdemeanours or felonies to this programme instead of sending them to prison. The programme is divided into four sections: general public, substance abusers, women, and youth. The programme has a success rate of 60%, which is rather impressive. Failure to complete the programme results in a mandatory prison sentence, giving offenders a strong incentive to complete it. Those who don’t succeed have a history of being incarcerated. New York Metropolis, as the largest city in the United States, is frequently a trend-setter for other places. This could be the first of many similar programmes in the United States.
Another good example is of state of Maryland, its purpose was to reduce the state’s prison population. They crafted a legislative reform package that was expected to cut the state’s prison population by 14% and save $247 million over the next ten years. Maryland Governor signed the Justice Reinvestment Act into law in May 2016, advancing research-based sentencing guidelines and policies that control the state’s corrections. They are also reducing the number of children in the state who have parents who are incarcerated by reducing the number of persons in the state’s prison population. These policy changes have a direct impact on these children’s life. The Justice Reinvestment Act changed the mandatory minimum drug sentences and capped the jail sentences that could be imposed for technical supervision infractions. For nonviolent charges, an administrative parole mechanism is used to manage certain low-level offences. Maryland looked at why alternative sentencing is needed, and one of the key reasons was that nonviolent offences accounted for the majority of prison sentences.
UNITED KINGDOM – The general community sentence’s requirements can be applied to offenders aged 16 and up in four ways: A Community Rehabilitation Order (CRO) can last anywhere from six months to three years and may include conditions such as residency, attendance at a probation centre, or treatment for drug, alcohol, or mental health issues, Community Punishment Order (CPO)- 40 to 240 hours of unpaid community service, Community Punishment and Rehabilitation Order (CPRO) – a combination of the foregoing, consisting of 1 to 3 years of probation and 40 to 100 hours of community service. It may have extra qualifications, similar to a CRO. Drug Treatment and Testing Order (DTTO) – mandates drug offenders to be tested on a regular basis and to attend a designated drug treatment centre for a period of six months. Local residents are compensated as part of the Community Payback programme as they are capable of making suggestions and nominating work would prefer to see perpetrators carry out in their neighbourhood.
After analysing and comparing the system, pros and cons, limitations of applicability, etc a definite answer to the earlier posed questions does not seem plausible but rather the whole concept is a very big grey area which just means that if and when this alternative punishment is introduced in the Indian Criminal Justice administration, the success or failure will highly rely on the legislature and executives that will end up implementing it. Indian society does seem to come to an extremist phase where still death penalty was recently carried out so the ideological battle will be the one to watch out for, the T.V debates will be heated up and a new topic of taking political sides is to be expected but none the less if this is implemented it will change the course of Indian Criminal Justice Administration as it will result in less incarcerations and more reformation which should be the ultimate goal.
Photo Source – Inmates of Netaji Subhash Chandra Bose Central Jail stitch coronavirus masks in Jabalpur, Madhya Pradesh. | PTI
About the author
Nardeep Chawla is a 3rd year student at Maharashtra National Law University, Mumbai. He is very interested in writing articles on different areas of law.
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