This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a legal analysis of why community service cannot be considered a valid bail condition.

This article has been published by Diganth Raj Sehgal.

Introduction 

In criminal cases, sentencing has two purposes, namely, punitive and rehabilitative. Community service, unpaid work conducted in the community is one of the sentencing alternatives available to judges. Community service can be ordered in addition to or instead of other sentence alternatives such as jail, fines, probation, or restitution by a court. It is not uncommon for a judge to order community service as part of a defendant’s sentence after a criminal conviction. In fact, in recent years, it has become increasingly widespread. Community service may be included in a defendant’s sentence in a variety of ways and for a variety of charges. But can community service be termed as a valid condition for grant of bail? This question has remained a heated topic of debate for many years as the judiciary have time and again lend their shoulders in support of community services as a bail condition thereby laying down guidelines to be allowed in executing the same. The present article highlights the aforementioned question and tries to analyze it from different judgments by the Indian courts, intending to reach a logical conclusion. 

What is the issue with community service as a bail condition

In the past, courts in India have often sentenced an accused or offender to community service as a condition of bail or as a penalty for minor offences. As a penalty for attempting to commit murder at the age of 16, the Supreme Court ordered a doctor to plant 100 trees in a year. The Delhi High Court ordered Swan Telecom founder Shahid Usman Balwa and four others to plant 15,000 trees in February, citing their failure to respond to an ED appeal challenging their acquittal in the 2G case. Despite the fact that there have been several cases of courts ordering offenders to perform community service, there is no statute or even standards in place to simplify such orders, which are generally handled at the judge’s discretion.

According to a study, while some Indian states have specific laws for habitual offenders and, in particular, the process of deinstitutionalization, India has also developed several innovations, including a phased program from maximum security to free-living conditions and open-air prisons that employ all types of offenders as paid agricultural workers. Chapter VIII, Sections 106 to 124 of the Criminal Procedure Code, 1973 (CrPC) allows alternatives to prison sentences. These laws will apply either before conviction, when a suspect is asked to explain why they should not be sentenced or after conviction, as a condition for bail or for the offenders’ release on the basis of good behavior and not as a punishment while they are in prison.

Judiciary’s view on community service as a valid bail condition

The Supreme Court of India while deciding on the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court of Andhra Pradesh (1977) has observed that social defence and individual correction in an anti-criminal orientation legitimize any deprivations of liberty. Public justice must be integral for the entire bail legislation, but punitive severity should be minimized. Playing havoc with the public peace by tampering with evidence, intimidating witnesses, or committing crimes while on judicially sanctioned “free enterprise” should be prohibited, and restorative devices to redeem the man, whether through community service, meditating drill, study classes, or other means, should be developed. No one who seeks justice should betray the court or the community’s trust. Bail orders may have conditions attached to them, not to cripple but to protect. The judicial discretion associated with the ideals of the Indian Constitution invokes such a comprehensive jurisdiction and humanistic perspective. Very comprehensive and effective decision-making by the Apex Court, in this case, enforces the importance behind community service to be eligible as a valid bail condition. 

While deciding on the case of Sunita Gandharva v. State of M.P (2020), the Madhya Pradesh High Court discussed the scope and extent of bail conditions under Section 437(3) of the CrPC, stating that it has a wider scope to cover community service and other reformative measures, without being “excessive, freakish, and onerous” in nature. The Law Commission of India’s Report Nos. 36, 47, 156, 268 and the Supreme Court’s specific ruling in the matter of Munish Bhasin v. State (NCT of Delhi) (2009) were consulted in reaching this conclusion. 

Justice Anand Pathak of the Madhya Pradesh High Court has issued an unusual sequence of bail decisions in which he has imposed unique criteria for the grant of bail in several criminal cases. For the issuance of bail, the judge issued four orders between September and December 2020, requiring the planting of trees, the installation of water collection facilities, and community work at a primary health center.  The cases in which bail has been granted involve charges of rape, gang rape of a minor, attempt to murder, abetment of suicide, outraging the modesty of a woman, house trespass under the Indian Penal Code, 1860 and offences under the Protection of Children from Sexual Offences (POCSO) Act. The orders have been laid down hereunder: 

1. In Shiv Kumar v. State of MP (2005), the bail applicant was ordered to plant 10 saplings (either fruit yielding trees of Neem/ Peepal) as an additional condition of bail, as well as take measures for their care and nurturing.
2. In Banti Jatav v. State of MP (2020), the bail applicant was ordered to volunteer every Monday and Tuesday from 9 a.m. to 1 p.m. at a Primary Health Centre in the Morena area for a year.
3. In Jitendra Paribar v State of Madhya Pradesh (2020), bail was granted on the condition that the aggrieved party’s residence is fitted with a water harvesting system or a water recharge system within two months of the order’s date.
4. The bail petitioner in Rishi Ahirwar v. State of Madhya Pradesh & Anr (2017) was a Patwari (government officer who handles land records) who had been arrested in connection with a case including charges under Sections 354, 457 of the IPC and Sections 7 and 8 of the POCSO Act. The applicant told the court that the lawsuit was unjustly brought against him as a result of a personal feud. Bail was granted in exchange for a Rs 2 lakh personal bond and two similar sureties. In addition, Justice Pathak noted that the applicant wanted to donate blood as part of his community service commitment and the same was allowed. 

Significant role of the legislature 

As we have sailed through a few judgments delivered by the Indian courts citing community service as a bail condition, it is evident for us to take a look at the question which was asked beforehand. The question of whether community services can be a valid and justified condition for bail remains fresh each time the courts of law grant it. In 2019, a local court in Ranchi had made a controversial order when it directed a 19-year old student, who was arrested for allegedly hurting religious sentiments, to distribute five copies of the Quran to five institutions in the city as a bail condition. The decision was subjected to grave criticism as well. While the judgments discussed above and the present one, are few among the plethora of decisions of courts across the nation citing community service as a bail condition, it is extremely concerning as India lacks a definite law governing community services as a bail condition. What is alarming in this scenario is the arbitrariness and ambiguity exercised by different judges in the process of delivering justice. 

There should be some community work alongside stringent deterrents, but they should be streamlined with a suitable procedure. Legislation should be enacted to regulate this. No judgment could be handed down based on the judicial officials’ whims and preferences. The legislature is in charge of making the fundamental law. Though there are certain temporary directives that can be issued, such as the Vishakha rules, which were issued by the Supreme Court and have to be observed by employers until new legislation is enacted, the same is for a specific period. Alternatives to incarceration are unquestionably needed. But that should only happen after great debate and the passage of formal legislation.

Aparna Bhat & Ors v. State of Madhya Pradesh & Anr : an analysis 

Justices A.M. Khanwilkar and S. Ravindra Bhat while deciding on the recent case of Aparna Bhat & Ors vs. State of Madhya Pradesh & Anr (2021), have taken a dig on’ community services’ being preferred by courts across India as a bail condition, specifically in gender-related crimes. A notable and liberal judgment indeed, the Apex Court highlighted that judges have an important role as educators and thought leaders at all levels. It is their responsibility to maintain objectivity in their words and actions at all times. If they falter, especially in crimes involving women, they jeopardize fairness and inflict great cruelty in their casual indifference to the survivors’ despair.

Facts of the case

On April 20, 2020, at around 2.30 a.m., the accused applicant, a complainant’s neighbor, entered her home and grabbed the complainant’s hand, reportedly attempting to sexually harass her. A charge sheet was submitted once the case was investigated. The accused applied for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973. Even though granted bail to the applicant, the Madhya Pradesh High Court set conditions in an impugned decision, which the appellant appealed before the Supreme Court in the present case. The conditions are provided hereunder:

1. On the 3rd of August, 2020, at 11:00 a.m, the applicant and his wife would visit the complainant’s residence with Rakhi thread/band and a box of sweets and beg the complainant, Sarda Bai, to tie the Rakhi band to him with the pledge to protect her to the best of his abilities for all times to come. He would also give the plaintiff Rs. 11,000/- as a traditional ritual provided by brothers to sisters on such occasions, and he will ask for her blessings. The applicant would also give Rs. 5,000 to the complainant’s son, Vishal, for the purchase of clothing and sweets.
2. The applicant must gather pictures and receipts of payments made to the complainant and her son, and file them through counsel in order for them to be added to the case file before the High Court’s Registry. The above-mentioned monetary deposit will have no bearing on the ongoing trial and will only be used to increase the applicant’s bail amount.

Contentions of the appellants

1. The appellants argued that the expressions “in the interest of justice,” “such other conditions as the court considers necessary,” and “as it may think fit” in the bare text of Section 437(3)(c) and Section 438(2)(iv) of the CrPC give the courts discretion to impose such other bail conditions as may be necessary in the facts of a particular case, but that those conditions must be consistent with the other conditions in the provisions with the only consideration being the purpose of granting bail.  
2. The appellants had relied on the Supreme Court’s decision in the case of Kunal Kumar Tiwari v. State of Bihar (2017) where the latter had viewed that bail conditions under Section 437(3) of the aforementioned Code cannot be arbitrary, fanciful, or extend beyond the ends of the provision.
3. The appellants pointed out that the impugned decision while granting bail, included a requirement that the applicant would visit the complainant’s home. The appellants contend that this is inappropriate and that no observation or condition allowing the accused to meet/have contact with the survivor and her family members should be made.

Contentions of the respondents 

1. The right to impose restrictions has been articulated in broad terms under Sections 437(2) and 438 of CrPC. The Intervenors have appended about twenty-three orders imposing similar bail restrictions. They contend that the Supreme Court outlined the criteria that can be imposed under the law in Munish Bhasin v. State (2009) and restated in Parvez Noordin Lokhandwalla v. State of Maharashtra (2020). As a result, it is apparent that imposing requirements such as community work in COVID-19 hospitals or any other facility, tree planting, or contributions to a specific charity relief fund, among others, is impermissible under law. 
2. The intervenors further contend that the accused are assumed innocent during the course of the trial and that the Court has yet to determine their guilt. Imposing restrictions such as mandatory community work, for example, violates the right to equality and personal liberty, as well as the method set by law in the Indian Constitution.
3. It was also prayed that the Apex Court should intervene and give bail and anticipatory bail instructions or guidelines to ensure that courts only impose bail conditions that are legal.

Supreme Court’s observation

1. By court decree, tying a rakhi as a condition for bail converts a molester into a brother. This is completely inappropriate because it dilutes and weakens the crime of sexual harassment. The act committed against the survivor is a legal offence, not a minor transgression that may be repaired by an apology, community service, tying a rakhi or giving a gift to the survivor, or even vowing to marry her, depending on the circumstances. Outraging a woman’s modesty is illegal under Section 354 of the Indian Penal Code, 1860. Granting bail with such terms exposes the court to charges of re-negotiating and mediating justice between opposing parties in a criminal case, as well as reinforcing gender stereotypes.
2. Imposing conditions that have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating community service as part of bail conditions (in a manner similar to the so-called reformative approach to the perpetrator of sexual offence), or requiring tendering of apology once or repeatedly, or in any other way, should be avoided. The law does not allow or condone such activity, in which the victim may be traumatized several times or be led into some form of non-voluntary acceptance, or be forced by the circumstances to accept and condone action that is a major violation.

Judicial stereotyping : a major disgrace to the Indian judiciary 

The practice of judges attributing specific features, characteristics, or duties to an individual only because of their membership in a particular social group (e.g. women) is known as “judicial stereotyping”. It’s also used to describe the habit of judges maintaining damaging stereotypes by refusing to dispute them when challenged by lower courts or parties to legal processes. Stereotyping may jeopardize the impartiality of a judge’s judgment and influence the judge’s opinions on witness reliability and the accused’s responsibility. 

When community services such as ‘being a brother to the victim’, ‘fitting a water reservoir in the victim’s house’, ‘offering sweets and clothes to the victim’ are allowed to the defendant as a condition for bail, judicial stereotyping is reflected. Although the Madhya Pradesh High Court had ordered the accused, who was held guilty of sexually harassing the plaintiff, to tie rakhi as a bail condition, presuming that tying a thread would change the relationship between the plaintiff and the defendant, the same was overturned by the Apex Court in the present case on the ground that grave offences should not be subjected to community service, like the one discussed, specifically if the offence is against a woman. Therefore, the valid and effective community service that judges can undertake while delivering a judgment on cases such as rape, molestation, outraging of female modesty, sexual harassment, offences under the POCSO Act, 2012, etc, is by having a liberal and reformative mindset which can take the society forward and not let me sail down the drains. 

Conclusion

Community service is not a detrimental direction, given by the court as a condition to be followed by the defendant while granting them bail. But does that community service benefit the public at large? Or do they help society develop better? Or do they just remain a formal dictation by the court that never sees an effective implementation? These issues can only be addressed by formal legislation governing community services as a valid bail condition. If the lawmakers do not come up with the same, community services cannot be a valid bail condition as it fails to counter the harm that the defendant has already caused to the plaintiff and the community as a whole. 

References

1. https://scroll.in/latest/979258/2g-case-delhi-hc-dismisses-plea-filed-by-a-raja-others-on-cbis-appeal-against-their-acquittal.
2. https://www.legalserviceindia.com/legal/article-3937-bail-and-the-laws-relating-to-it.html.
3. https://www.scconline.com/blog/post/2020/10/13/mp-hc-scope-and-extent-of-bail-conditions-under-s-4373-crpc-are-wide-enough-to-include-reformative-measures-like-community-service-but-ought-not-be-onerous-and-excessive-in-nature-hc-decides-sc/.
4. https://www.criminaldefenselawyer.com/resources/community-service-work-in-criminal-sentencing.html.

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