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Community sentencing in India


Authored by Sweta Upadhyay


Key Words: community sentencing, custodial sentencing, community service, petty offence


"Nobody is born a criminal; it is the circumstances, societal constraints, inherited environment and at times accidents, which makes him a criminal."

Abstract:

This topic is about the concept of the Community sentencing in India, its highlights the essential difference between community sentencing and custodial sentencing. This article finally talks about, how community sentencing help to deduce overcrowding of the prison, how the judiciary play a crucial role to plug community sentencing.


Introduction:

The aim of all laws is to maximize the net happiness of society.[1]. The ultimate believe of Indian judiciary is “Nobody is born a criminal, it is the circumstances, social behaviour, inherited environment and sometimes accidents, which makes him a criminal.” the last word aim of every sentencing policy shall thus be restorative justice. Therefore, punishment should only be administered if it results in an overall benefit to society. Punishment for a past offense is simply justified by absolutely the better of the day benefits it provides. Punishment should “modify the behaviour of the individual who is being punished; hopefully in such how on make him a more socially desirable person.”


According to Martin Wasik[2]: “Community sentence is one among the available sentencing options, appropriate in cases where the offender has committed an offence of an intermediate degree of seriousness. The judges impose the order during a view that the character of the offence is different from to wish custody, but it does require something quite the mild penalty of a confine or a discharge.”


It is defined as a kind of non-custodial punishment for offenders to undertake unpaid work for a specific number of pre-determined hours. In case of community sentencing, various kinds of work of social importance like cleaning, gardening, painting, teaching, etc., are assigned to the offenders according to their skills and suitability. Such sentences are usually meant to tend to first-time offenders, convicted for fewer severe offences, instead of awarding a short-term sentence or fine. Community sentencing, also mentioned as community service, could even be a component of an array of other sanctions to imprisonment.


Under the Indian code, 1860, different punishments are prescribed for various offences. Section 53 of the Indian code provides the Punishments to which offenders are liable which are –

a) Death;

b) Imprisonment for life;

c) Imprisonment–

i. Rigorous involving hard labour; and

ii. Simple imprisonment,

d) Forfeiture of property; and

e) Fine.


In India, no law provides for community service except juvenile justice and probation jurisprudence. Community service in India isn't codified unlike western jurisdictions. Western jurisdictions like USA, England, and Australia have community service in their written account mandating judges to exercise the same as alternative to imprisonment. Community Sentencing is an alternatives to custodial sentencing, which is run through the prison system. Several alternatives to imprisonment are implemented in India.


Several kinds of alternatives to custodial sentencing like open prisons, parole, probation, vocational training , and rehabilitation centers are sought to be introduced in India to strengthen the criminal sanction system, but community sentencing has arguably not been subject to due contemplation.


The 156th Law Commission Report in 1997: Discussed the proposed amendment of Section 53 of the Indian code to incorporate community service together of the sanctioned sorts of punishments, and deliberated upon Clause of the Indian code (Amendment) Bill, 1978, seeking to define the contours of community service. Ultimately, it opined that the surface prison system was preferable as a correctional measure as compared to community service, thereby effectively refusing to endorse the introduction of community service as a criminal sanction.


Despite these aforementioned unsuccessful legislative attempts, the judiciary has continued to be proactive in attempting to interpret community sentencing as a sort of punishment for criminal actions, through the exercise of its discretionary powers. it's to be noted that there's no specific provision on community service in India and every one orders for an equivalent are passed in exercise of the discretionary power vested within the court to pass the other order because it's getting to deem fit as High Courts, within the exercise of their power under Section 482 of the Code of Criminal Procedure, can make any orders to satisfy the ends of justice.


The only provision for it in India exists for juveniles under Section 18(1) (c) of the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides for community service for child offenders, if the Juvenile Justice Board deems fit.


However, even within such efforts, the introduction of community sentencing has not been given much consideration, having been dismissed as not being practicable to tend effect to within the Indian setup.


Difference between community sentencing and custodial sentencing: The essential difference between the 2 is that while community sentencing is an alternate to custodial sentencing, open jails are an area of the post-custodial reforms. The thought behind community sentencing pertains to not being confined behind any perimeters but rather performing unpaid work of social importance to undo the loss caused to the society by the acts committed by the offender.


Role of judiciary to promote community sentencing in India: We were witness many judgement of the honourable Court associated with community sentencing. In R.K. Anand v. Registrar[3] the Hon’ble Supreme court has held a Senior Advocate guilty of contempt of court. The court during this case awarded a singular and novel punishment. While considering the age of the accused, physical health of his wife etc. the court sentenced him to a minimum of 1 year pro-bono professional services to be rendered to poor accused who on account of lack of resources couldn't engage lawyer in conjunction with a grant of a sum of Rs 21, 00,000/- to be paid to the Bar council of India, to be used for developing the infrastructure of the varsity situated at a mufassil place attended by under privileged and deprived section of the society.


Recently, an inferior court in New Delhi ordered community service, observing that imprisonment won't always serve the specified purposes, especially when the accused could even be a first-time offender, as long as harsh views may ruin his entire future while also removing from his chances of reformation. The position taken by the inferior court perhaps draws from the dictum of Pappu Khan v. State of Rajasthan[4], in during which the Supreme Court observed that a state cannot afford an outsized non-productive prison population because it imposes an important burden on the state exchequer. Therefore, the Apex Court expressed that it's within the interest of the State to reform prisoners by teaching them techniques and skills which could ensure a source of livelihood to them after they're released from jail.


In a case, Delhi Court directed the Traffic Police of Delhi to provide road safety training to a 26-year-old engineer who had been caught for drunken driving. While pronouncing, the court stated that it is an alternate to the custodial sentence, the 26 years old engineer should learn four hours daily coaching and help the traffic police sensitize other offenders against traffic violations for minimum 15 days.


Further, In Babu Singh v. State of U.P[5]., the Supreme Court held that restorative devices through means of community service, meditative drill or study classes should be innovated upon to assist redeem the offender. It can therefore, be argued that the judiciary has, to a degree, recognised the advantages of community sentencing. However, like other jurisdictions, legislation remains required for more extensive use of this alternative.


Indeed, even inside the acclaimed BMW hit and run case, the convict Sanjeev Nanda was coordinated to embrace to 2 years of network administration beside fine by the Hon'ble Incomparable Court of India. High Courts and Incomparable Court of India has huge optional and interpretative forces wherein they're getting the prospect to force "network administration" with any discipline or in lieu of any discipline yet within the majority of the criminal cases, our preliminary courts has no such powers. An alteration to segment 53 IPC or a special law during this respect or an unambiguous rule from Preeminent Court is required to bring network administration into leading edge of criminal equity framework.


Conclusion: Community Sentencing is additionally referred as community correction which correct the first-time offenders convicted for petty offences. Community service orders benefit the offender greatly, also as society and thus the correctional system itself. Community service orders are increasingly fashionable judges who find that they are getting to be more flexible and humane in punishing offenders unlikely to commit another crime. Community service has been delivered to unravel the matter of overcrowding of prisons and increasing costs also on rehabilitate the offenders, especially first-time offenders convicted for petty offences.


Reference:

1. http://nujslawreview.org/2019/10/24/beyond-the-prison-bars-contemplating-community-sentencing-in-india/

2. https://www.thenewsminute.com/article/why-india-needs-law-community-service-alternative-imprisonment-105965

3. https://www.newindianexpress.com/states/kerala/2018/oct/26/serve-less-time-in-prison---serve-community-instead-1890091.html


Foot Notes:

[1]Per Justice V.R Krishna Iyer in Mohammad Gaisuddin v. State of Andra Pradesh 1977 AIR 1926 [2] See Martin Wasik, Emmins on Sentencing 4th ed., ( UK : Blackstone Press,2001) [3](2013) 1 SCC 218 [4](2005) SCC Online Raj 348 [5](1978) 1 SCC 579.