This article is written by Riya Ranjan from Lloyd Law College. This article talks about the emergence of community sentencing as an alternative in the Criminal Justice System in India. It also analyses the remedies and reforms of community service and how it reduces the system of incarnation.
Table of Contents
The criminal justice administration system has been suggested to remedy the deplorable state in India. However, the introduction of community sentencing as a restorative justice reform has not been considered much. The criminal justice system in India is the property of the Britishers. The natural reaction towards crime in India has always been imprisonment and isolation in order to reform him. However, in recent years, there is an awareness in the criminal justice system regarding alternative sentencing.
According to the Home Affairs Committee (HAC) report, alternatives to custodial sentencing is an appropriate starting point for considering how community sentences have been proposed as a way to control and reduce prison numbers. It will reduce the number of prisoners entering the prison and overcrowding of the prison. In the current judicial system in India the alternative modes of sentencing are discussed are plea bargaining, probation, fine, house arrest, unpaid work and curfew.
The paramount importance is given to investigate credible alternatives to imprisonment and try them wherever they think it’s appropriate. Traditionally, the theory of retributive justice is based on the ideas of retaliation, which is valuable in itself. Alternative sentences add to these goals, trying to reform the offender, and punishments are given to create a fear among the offenders. However, community sentences might replace some custodial sentences. The community service while reducing the burden on the incarceration system, disburdens the state exchequer. This will help to curb penal excesses and offer a series of ‘promising ideas’ to address these challenges. Community sentence meant to be given to a first-time offender, convicted for less severe offenses instead of awarding is short term imprisonment or fine.
With over a staggering 2,66,23,054 criminal cases pending in India, the criminal justice administration system continues to be sluggish in India. The overburdening of prisoners leads to a negative influence on the offenders rather than rehabilitation imprisonment.
What is community sentencing
Community sentencing is an alternative to imprisonment in which the court finds the different ways to punish a defendant who has been convicted of committing an offense, other than through a custodial sentence and capital punishment. It is also known as alternative sentencing. Community sentencing is a kind of punishment for those who have committed less dangerous crimes, the court put some limitations and gave them some duties.
Non-custodial punishment includes:
- House arrest
- Unpaid work
- Apology to victim
- Judicial corporal punishment
- Specific court orders and injunctions
- Regular report to someone
- Fines and compensation
They enable people to undertake rehabilitative programs or work in the community under supervision. The person who is convicted under community sentence will be assigned an offender manager who works for a National Probation Service or Community Rehabilitation company. Any person who fails in the assigned work could see a return to court and may result in being sent to prison.
When the offenders are punished in alternative sentencing, the state saves valuable correctional resources. Offenders have much to gain from serving their sentences and can continue their employment. From the victim’s perspective, non-custodial penalties have the advantage of increasing the likelihood that the offender will be able to work and pay compensation and maintain a tie with his family.
The ideas behind community service are not confined to any perimeters. Rather, it gives a chance to the offender by performing unpaid work of social importance to undo the loss caused to society by the acts committed.
Community service is already being practiced all over the world. It was seen that the community service has been out to solve the problem of overcrowding of prisons and increasing cost as well as to rehabilitate. In countries like Spain and Singapore, the community service required that the punishment should have some relation with the offense committed. In various jurisdictions, the community sentencing is monitored by some specifically set up institutions or by probation boards.
It is quite difficult to assess the public perceptions regarding community sentencing, it was found that in most jurisdictions the public is optimistic considering the rate of use of community service orders. Whereas, in certain jurisdictions like the United Kingdom, the community sentencing is implemented strictly.
Indian attempts to introduce community sentencing
From the four theories of punishment in the criminal justice system, the reformative theory of punishment is followed in India. The criminal justice system in India is based on simple principles of Abhor the crime not the criminal. It is a purification process of washing away the sins of the evildoer. This theory says that a punishment should be decided on the gravity of the offence.
India has also witnessed a deteriorating Rule of Law Index, especially in the realm of criminal justice. India’s global rank is as low as 77 out of 126 countries, in 2019. Community sentencing has been tested across various jurisdictions to address various problems associated with the institution of prisons. It was also tested in India and somehow here it resisted. India introduces community sentencing, with reference to the 156th Law Commission Report, The Indian Penal Code (Amendment) Bill, 1978.
The system of community sentencing is prevailing in various legal jurisdictions in India. The effects of incarceration on inmates are long-term on account of the pain, deprivation, isolation, and extremely unusual norms of living that they bear. The process of institutionalization or imprisonment of the inmates occurs in response to the extraordinary demands of prison life. This process of integration into the prison culture due to its deep relation with societal deprivation can manifest in chronic manners.
Several forms of alternative sentencing are introduced in India such as open prison, vocational training, parole, and rehabilitation to improve the criminal sanction system. But the only provision that exists in India to provide community sentencing, is for juveniles under Section 18(1)(c) of the Juvenile Justice(Care and Protection of Children) Act, 2015.
Penal code has also provided community service order under Indian Penal Code (Amendment ) Bill, 1978. According to this Bill, the punishment of an offense in community service awarded with less than 3 years and working hours ranges between 40 hours to 1000 hours. However, the Bill lapsed due to the dissolution of Lok Sabha because the duration prescribed in the Bill did not have to be in conformity with the Factories Act. This alternative service sought to be expropriated was not in the ordinary course and instead on account of punishment for engagement in criminal activities.
Recently, a lower court in New Delhi ordered community service to the offender. The court observed that imprisonment may not always serve the desired purposes, especially when the accused is a first-time offender. The court also said giving a harsh punishment may ruin the entire future of the accused and take away the chances of reformation.
In Pappu Khan v. the State of Rajasthan, the Court observed that the welfare state cannot afford a large non-productive prison population as it imposes a heavy burden on the state exchequer.
How does community service reduces the burden on the system of incarceration
Community service is more like repairing a harm from the community and reduces the risk of being used as a punishment. Community service can be a reparative sanction that links the nature of the service to the offense to be sanctioned. It evokes responsibility from the offender for his actions and reduces the burden on the system of incarceration. It basically tries to realize the offender of his wrong and give a chance to improve his wrongful act which no prison can do.
The total population of the prisoners in Indian jails was 4,33,003 on 31 December 2016. Most of the prisoners are between the age group of 30 to 50 years old that makes up 44.0%, whereas the age group of 18 to 30 years old makes up 43.1%. After research, it was found that the education profile of the prisoners was found below class X (42%), illiterate (28.4%), above Class X but below graduation (21%), graduated secondary school (5.9%), postgraduates (1.8%).
Targeted expansion of incarceration may well be a necessary part of this broader response but over-reliance on incarceration as a stand-alone panacea for crime is unsustainable. It is found that there are more than three crore cases pending in various courts. The community service reduces the overburdening of the prisoners. Especially for the short term prisoners, community service gives them a chance to improve their future.
As in India, imprisonment leaves a dark spot on the career mostly to the youngsters who have their whole future ahead. The community service is not only cost-efficient but is far effective in its own manner. It made the prisoner self-sufficient and reduced the burden of imprisonment.
Community sentence as a restorative justice reform
Different views are given on the community service on its restorative vision. The idea behind this theory of punishment is to reform criminals. In the State of Gujarat v. Hon’ble High Court of Gujarat, the court held that the reformation should be the main objective of the punishment and the punishment should be given in an effort to reform the offender and make a good human being out of a convicted prisoner. In R.K Anand v Registrar High Court Delhi, the Court held that it will be useful if we keep him out and let him do the things that will be utilitarian to society instead of sending the contemnor to jail.
A crime is an undesirable act which the State finds it most convenient to correct by its institution and must be corrected to maintain a wave of peace and public order. Punishment is the primary duty of the state as crime is considered an offense against the state. The people believe that this theory of punishment shall transform the offenders into a good person and taught work during the imprisonment period so that he may learn some productive work that will make his life easier when he comes out. According to them, community service is not a punishment in an actual manner it is the duty towards the society which the offenders owe. This social service is not appreciated by society but gives a chance to reform and transformation.
Community service as a form of alternative sentencing
The punishment shall be served on the gravity of the offenses and it is at the discretion of the court. Community service is the best alternative for the small kind of offenses as it also reduces the overburdening of prisoners.
It can be seen for a decade that the massive penal system was not only costly but also ineffective. Keeping prisoners in imprisonment for too long didn’t bring down the crime, instead, small criminals gang up and do other illicit activities. There is very little evidence that long incarceration is a stand-alone silver bullet for preventing crimes and is effective. However, it is very costly for the government to fulfill the requirements of the prison with such a large number of prisoners.
Although it is not a complete alternative to imprisonment, it establishes a more reformative way of punishment. This system saves a lot of time for the court and the judicial officers and makes the judicial system more liberal. One of the most important things about community service is it leads to speedy disposal of a backlog of cases and therefore, expedites the delivery of justice. It is the cheapest and the expedite way of justice.
Malimath Committee recommendations
In the year 2000, the government of NDA formed a 20 member panel headed by the former chief justice of Kerala and Karnataka, Justice V.S. Malimath. The panel was made to overview the century-old Criminal Justice System.
After 2 years, the Malimath committee submitted a report of 158 recommendations to the deputy prime Minister L.K. Advani. The panel analyzed that the existing criminal justice system is not adequate in delivering justice to the victim of the crime and is in the favour of the accused. The committee was in the favour of implementing a restorative model, where the victim gets a role even before the investigation is initiated. Here the victim may also be given a chance to negotiate and settle the dispute.
Here is a list of some recommendation suggested by the Malimath committee:
Right to silence
The committee suggested modification of Article 20(3) of the Indian Constitution that provides immunity to an accused against self-incrimination. Article 20(3) protects the accused from being compelled as a witness against himself. The committee also suggested that the court should give the power to question the accused about elicit information.
Rights of the accused
The committee also suggested a schedule to a code should be brought in regional language. So that the accused must know about their rights and their implementation.
Borrowing from the inquisitorial system
The panel suggested borrowing the inquisitorial system of investigation practiced in countries like Germany and France. In this system of investigation, the judicial magistrate supervises the investigation. The committee also recommended that the court should have the power to summon any person, whether or not he is listed as a witness.
Presumption of innocence
“Proof beyond a reasonable doubt” must be followed by the court as a basis to convict an accused in criminal cases. The committee observed this as a ‘very unreasonable burden’ on the appellant. They suggested that a fact be considered as proven “if the court is convinced that it is true” after evaluating the matters before it.
Justice to victims of crime
- The panel suggested that an advocate should be provided to the victim of his choice to plead on his behalf if the victim is unable to afford an advocate.
- In case of any serious offense, the state representative shall have all the right to plead himself as a party on the behalf of the victim.
- Compensation to a victim is a state obligation for all serious crimes, Whether the offender is apprehended or not, convicted or acquitted.
- Victim compensation funds can be created under the Victim Compensation Law.
- The panel recommended hiving of the investigating wing from law and order.
- It also suggested the setting up of a national security commission and state security commissions.
- A police establishment board should be set up which deals with the posting, transfer, and so on.
- The committee suggested extending the period of custody up to 30 days and an additional time of 90 days be granted for the filing of chargesheet in the case of serious crimes.
Court and judges
- The Supreme Court and High Court should have a separate criminal division consisting of judges who have specialized in criminal law.
- According to the ratio 2003, the judge’s population ratio in India is 10.5 million And 50 charge per million population in many parts of the world. However, the ratio shifted to 19.66 per million people as of the 2017 report.
- Every Court should maintain a record of timestamps Such as the date of confusion of arguments, date of pronouncement of judgment, and so on, which may be prominently displayed.
The committee suggested that all cases in which the punishment is 3 years and below should be tried summarily and the punishment that can be awarded in summary trials be increased to 3 years.
- The committee battered for a strong witness protection mechanism, it said that the judge should be ready to step in if the witness is harassed during the examination.
- The witness should get their allowances on the same day. They should be treated with dignity and facilitated with proper sitting and resting facilities.
- Special witness protection law should be enacted akin to the one in the United Kingdom.
Vacations for the court
The committee recommended reducing the period of vacation by 21 days, looking forward to the long pendency of cases. It is recommended that if this is implemented, the Supreme Court will work for 206 days and the High Court will function 231 days annually.
Suggested model of community sentencing
The community service scheme usually requires the first time petty offenders undertake a predetermined and mandated number of unpaid supervised work. The model abroad cannot be transplanted while seeking to implement alternative medicine tensing measures in India.
The various issues arise while devising a model of community sentencing for India.
Some of those issues are:
- The nature and duration of the work: The main objective of the community sentencing is to restore to the extent possible wrong committed by the offender and render the services that are beneficial to the community. Therefore, the nature of work should not only help society but also rehabilitates the offender assisting the acquisition of a new set of skills.
The amount of fine and the duration of sentence exercised are similar as per the discretion of the judge. it is also desirable that there is a direct connection between the nature of the work assigned and the crime committed by the offender. This correlation also serves the purpose of reformation and rehabilitation.
- Rights of the offender: The offenders are not made to face any unreasonable restrictions for unfair treatment on the account of their conviction status. They should also be allowed to maintain a normal life, maintaining the safeguard of conformity with the nature of the sentence.
Community sentencing in India should not interfere with any rights of the offender. The work post as a part of an alternative sentence should not be undignified in nature and should not violate any legislation. There should not be any violation of grave human rights in the name of community service.
- Suitability of the offender: Indian prison system has been severely criticized for the violation of the human rights of the prisoners. Community sentencing in India should not unduly interfere with an offender’s right. In India, the second consent need not be contemplated as it may pose a procedural hurdle and any unnecessary delay.
The work imposed as a part of a community service sentence should not be undignified in nature and a clause should be specifically inserted to this effect in any governing legislation. It is emphasized that the Court needs to exercise due caution while ordering community sentences by considering the fact and circumstances of each case, not to interfere with the overarching purpose of the criminal justice system.
- The measure of monitoring: There will be various difficulties that may be encountered in the implementation of community service orders if they are not properly supervised. A supervisor should be assigned to supervise and check the progress of the offenders. The supervisor should verify and ensure the work of offenders and check whether the offender was on-site during the working hours.
- The issue of breach of the order: It is the duty of the state to deal with the crime and the criminal, to maintain the peace and public order of the state. To maintain sanity in the community, it is also necessary to deal with the breaches strictly. A supplementary approach can be adopted which stipulates that minor irregular ratings in the performance would be dealt with warning and imposition of fines. In the case of gross disobedience of an order, the offender for the original offense along with custodian imprisonment in order to set a strict precedent. The community service must ensure that the process of addressing breaches of community service are not entertained. Prevent the offenders from utilizing the interim period to add to their wrongs through further engagement in crime.
Other remedial measures
The alternative to imprisonment had already laid down its foundation in the criminal justice system in India. The current system needs a lot of reforms to enter into the perfect alternative mode of punishment. It needs a certain transformation to achieve the goal of efficiently providing alternatives to imprisonment.
Indian courts have already passed judgments regarding community service as a form of punishment but that is up to the discretion of the court. To adopt community service as an alternative to imprisonment there must be a proper penal law that distinguishes the categories of offenses according to their gravity. The code must be liberal and frequent by the court.
The provision of discharge of offenders given under Section 360 of the Indian Penal Code should be used more specifically and liberal under this code. The main cause of overcrowding in jail is the presence of small-time offenders who have done very petty offenses. This problem can be solved by the discharge of such offenders under Section 360. There is a need for proper machinery for the supervision of probated offenders. The court shall also wider the concept of fine as a punishment in petty offenses.
It’s high time for our Parliament and legislative bodies to develop a democratic, modern, and liberal criminal justice system that reflects the ethos of our democratic, secular, liberal, socialist Republic as well as our civilizational values of non-violence and compassion.
The court must ensure that punishment should be given to every community whether or not the community paybacks. Further, community sentences will always punish offenders as well as dealing with the reasons why the offense was committed in the first place and punish accordingly.
Reformation of the idea of community payback, the maximum duration from 12 to 16 hours a day, and increasing the maximum duration from 6 to 12 months. The courts must all access data of incomes and expenditures through taxmen, so offenders can not hide their true incomes. The system should allow the courts to impose location monitoring by using new technology. This will help in monitoring the location of the offenders who breach the terms of their sentences.
The restorative form of justice can improve the victim’s satisfaction and help the offender to realize and improve their past wrong do’s. Altogether these kinds of reforms will help to ensure that the community service is properly punitive and is taken more seriously by the offenders. It will improve the backlogging of cases and the overburdening of prisons at the same time.
Community sentencing as a form of alternative sentencing has already been proved to be very effective in various parts of the world. It resulted in a decongestion of prisoners and the utilization of offenders for providing services to the public. It reduces the burden on the state exchequer and Clears the backlog of cases.
But here the question arises, the justice system restraining criminal behavior or should they be supplemented or moreover replaced by a much more flexible or diversified combination of measures of treatments like deterrent, retributive, and reformative theories of punishment.
The Judiciary would also have to play an important role in the implementation of community service in the Indian criminal judicial system. The Judiciary would also have to ensure that well community sentencing is encouraged, the discretion vested with the court is not misused by the previous section to use the machinery of the justice. It is important to keep in mind that the state shall not be able to undertake the implementation of community service in isolation.
The constructive will needed to be promoted toward a reformative justice administration system and that should not only be taken among the state institution but also the society at large. In order to accept the community service sentence within the conventional fold of criminal sentences in India, it should also promote the idea of this alternative sentence.
There may be various problems occurring in the efficient integration of the community service order within the broader sentencing policy of a nation. There is a need for proper legislation for the execution of community service best sentences and codified penal law for its implementation and control. This system, if incorporated, will reduce the number of prisoners in jail and reform the criminals who are convicted for small offenses. It will also reduce the burden on the system of incarceration.
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