Introduction:
Justice must be fair,and the trial procedure must be impartial to ensure that both the victim and the accused are treated according to the law.Consequently,the victim should feel that justice has been served,and the punishment should be appropriate for the wrong committed. Reading about Retributive Justice often creates the impression that it is synonymous with revenge,as it focuses on an individual centric approach to punishment.
This theory depends on the idea that an individual who has been personally wronged will seek personal vengeance.Historically,almost all criminal proceeding were initiated by the injured person rather than state.The Royal Commission Report on capital punishment emphasized that punishment should be proportionate to the crime committed and must not exceed it.While it is necessary that those who have done wrong are punished,this doesn’t mean that the punishment should be increased merely to satisfy the desire for individual revenge.While Retributive Justice focuses on the past Crime,Reformative Theory- also known as the corrective or Rehabilitative – looks toward the future of the offender.
The main purpose of Punishment under this theory is to make the person to fit live in society again. It suggests that the criminal needs sympathy and guidance rather than just harsh punishment for the wrong committed. Unlike other theroies,this approach doesn’t focus on the crime itself but on the criminal,their personality,and the social or economic factors that led them to commit the crime. it is accepted phenomenon that no one is born a criminal circumstances like economic problems or negative influence often encourage criminal behavior.
Therefore,the objective of punishment should be to eradicate these criminal tendencies and individual into a good citizen.To achieve this,section 4 of the Bharatiya Nyaya Sanhita introduced community service as a way to reform offenders for small crimes,instead of keeping them behind bars.
Historical Background
The concept of community service is not a new introduction to the legal system,it has been discussed extensively in various committee reports over the year. In 42nd Law commission Report(1971) recommended significant changes to the Indian Penal Code (IPC). Its main objective regarding punishment were:
Overcrowded Jails: The commission noticed that jails are too crowded. If accused,guilty of petty theft or minor offenses were imprisoned alongside hardened stay with criminals,they will learn more crimes instead of changing for the better.
Punishment through Labor : The report suggested that it is better for an offender to perfrom collective labor or community service rather than being confined to jail.This approach reduces state expenditure and provide the criminal with an opportunity to rectify their mistakes.
Humanitarian Perspectives : From a humanitarian stand point,punishment should be designed such that it doesn’t destroy a person’s dignity.Instead,it should focus on rehabilitating them into a better citizen.
In Malimath committee Report(2003) The committee on reforms of the criminal justice suggested that a new form of punishment- community service-should be introduced to the existing penal framework to diversify the types of penalties. Current status(Bharatiya Nyaya Sanhita 2023) The inculsion of community service in the Bharatiya Nyaya Sanhita,2023 this had already taken place in the 42nd Law Commission.The commission had requested to change section 53 of the Indian Penal code which has been granted in the new law as section 4 of the Bharatiya Nyaya Sanhita. Before community service was introduced in the Bharatiya Nyaya Sanhita,there was a statutory provision in india that recognized community service,and that provision under section 18(1)(c)of the Juvenile Justice(care and protection of children) Act,2015. This provision empowers the Juvenile Justice board to impose community service on child offender in a corrective manner and this represent a reformative approach to Juvenlie Justice.
From Retributive to Reformative
Previously,the Indian Penal code,which was based on the british system,focused on the punishment and instilling fear in the accused.However,the new community service provision added to the Bharatiya Nyaya Sanhita in a way offer an alternative. It will benefit the accused and help alleviate the problem of overcrowded prison. It wasn’t easy to convert Indian Penal Code 1860 into Bharatiya Nyaya Sanhita 2023.But a good approach is to reform a person to change their mindset and guide them towards the path of reform.
Comparative study of Indian Penal code 1860 vs Bharatiya Nyaya Sanhita, 2023
| Old vs New law | Indian Penal code, 1860 (section 53) | Bharatiya Nyaya Sanhita,2023 |
| Theory Basis | Deterrence and retributive Theory | Reformative Theory |
| Types of Punishment | There are five types: Deathsentence, Imprisonment for life Imprisonment :Two types: Simple Rigorous Forfeiture of property Fine |
There are six types: Death Imprisonment for life Imprisonment :Two types: Simple Rigorous Forfeiture of property Fine Community Service |
| Addition | Not mentioned in Indian Penal Code 1860. | Section 4(f) specific include community service. |
| Focus | Jail or fine. | Change personality in accused person and refroms. |
Legal Recognition in Bharatiya Nyaya Sanhita 2023 and Bharatiya Nagrik Suraksha Sanhita 2023:
Community service of punishment is mentioned in section 4(f) Bharatiya Nyaya Sanhita 2023 but it’s definition is in section 23 of explanation of Bharatiya Nagarik Suraksha Sanhita 2023 to mean the work which the court may order a convict to perform as a form of punishment that benefits the community,for which he shall not be entitled to any remuneration.In simple words the court will order the convicted person to perform work that benefits the community,and in return,he will not receive any remuneration.
Offences under Bharatiya Nyaya Sanhita 2023,Punishable with Community Service
community service can be sentences in various offences-
Section 202 Public Servant Unlawfully engaging in trade: Punishment with simple imprisonment for a term which may extend to one year,or with both or with community service.
Section 209 Non appearance in response to a proclamation under BNSS section 84 2023:
Punishment with Imprisonment up to 3 year,fine or Community service.
Section 226 Attempt to commit suicide to compel or restrain exercise of lawful power: Punishment with Imprisonment upto 1 year,fine or community service.
Section 303(2) Proviso- First time- value of stolen property below 5000rs than person conviceted in case of Theft: Punishment with return the value of stolen property,restoration of stolen property or community service.
Section 355 Drunken person misconduct in public place :
Punishment with 24 hour imprisonment,fine up to 1000rs or community service.
Section 356(2) Defamation: Punishment with Imprisonmet up to 2 year,fine or community Service.
This change reflects a shift in india’s philosophy of punishment and shows that it’s not necessary for every offender to go to Imprisonment.Two things emerge from this transition; Firstly it is public oriented and second it also serves the purpose of punishment.
Judicial Foundation of Reformative: Important Case Law
State of Punjab v. Bawa Singh,2015 Cr LJ 1701(SC) Held – the court held that it is duty of the every court to impose a proper sentence,taking into gravity the nature of the offence and the manner in which it was committed.The court cannot simply consider victim’s rights.it must also consider the society at large while impose an appropriate Punishment.
Sunil Batra v. Delhi Administrative 1978 4 SCC 409 (Detail Analysis)
Fact of this case are that sunil batra who received the death penalty,wrote a letter to the court.He wrote it on behalf of another prisoner named premchandra who was being tortured inhumanely by the warden of Jail.And this warden was demanding money from premchand relatives essentially extorting them,threatening that if they didn’t pay he would torture premchand even more severly. One day,premchand was tortured so severly that a rod was inserted into his anus, causing bleeding seeing all this,sunil batra wrote a letter to the court reporting this incident. After the court issue a notice to of the Habeas corpus writ and appoint a Amicus curiae to investigate whether this was actually happen,whether there was indeed bleeding and whether such torture inflicted in another prisoner in the jail.He was bleeding so much from his anus that he was transferred from the jail to the Irwin hospital.
Issue:
The first question that came before tha court was whether Article 14,19,21 would be applicable on prisoners?
The second question that came before the court whether Article 14,19,21 of the constitution were being violated?
Judgement:
The majority of the case was 2:1 was deliverd by Justice Krishna Iyer and Jutice chinnapa Reddy who stated that allowing the Habeas corpus.The functionality of a Habeas corpus is comprehensive and covers all aspect.
Here the court states that a prisoner is considered a human being in the eyes of law,not an animal and the court also stated that the prison house is part of indian territory and whenever part 3 is invoked by criminal or prisoner,than Indian constitution can’t be hold by Judicial official. If prisoner is even traumatized that the constitution suffer a shock.The supreme court stated here that the purpose of punishment shouldn’t merely inflict punishment but also to bring about reformation.As primarily focus now in BNS,sunil batra case was given a statutory form of reform.And this case laid down the foundation for Reformative Justice.
Hiralal Mallick v.State of Bihar AIR (1977) SCC(4)44
The fact of this case are that a 12 year old boy,along with his two elder brother,killed a man with an axe and then fled. Court mentioned that Threapeutic punishment and stated that when a young offender commits a crime for the first time and is placed with hardened criminals instead of reformimg,he become an even more dangerous criminal which would then lead to cycle of crime.
State of Gujrat v.Hon’ble High Court of Gujrat,(1998)7SCC 392
The Fact of this case is that prisoner in jail should be paid for the work they do,or the work.they are doing should be considered part of their rehabilitation.The Supreme Court stated that he work undertaken by prisoner is part of their rehabilation,as it provides development,social,moral,discipline and gives them sense of purpose.
Critical Analysis and suggestion for Community Service Section 4(f) (BNS)
(i) While introducing community service is a progressive move,our current legal system lacuna specific rules,regulation,or a detailed manual for its execution.
(ii) Currently,there is a legal lacuna regarding how this punishment will be applied,implemented,or monitored for an offending person.
(iii) without a clear framework,the transition from theory to practice uncertain.
(iv) The primary benefit of community service is that it offers a viable alternative to incarceration,therby reducing prison overcrowding.
(v) From a reformative perspective,it is especially beneficial for first time offenders.The convicted person gets an opportunity for real rehabilitation.
(vi) Engaging with society allows for more effective moral reformation than the traditional approach.
(vii) A major loopholes in the current provision is that the duration of community services is not explicitly specified.
(viii) Futhermore ,the question of accountability –who will be responsible for overseeing the performance of these duties-remains unanswered.
(ix) Suggestion: First the law must clear state must the exact duration for the community service,second there should be digital monitoring system to make sure the person actually complete the work and doesn’t skip it.
(x) The scope of community service needs to be explicitly defined It should encompass socially productive tasks,such as environment conservative maintenance of public and assistance in public welfare institution.
(xi) When Kiran Bedi,who was an IPS officer,initiated a program in Tihar Jail where all the prisoners would do some kind of work,such as embroidery or weaving.We can also implement something similar as a form of community service,which would also have a positive impact on our economy.
Conclusion
The introduction of community service (section 4 of BNS) is the first major toward reforming criminals in India.However,to make this successful ,we need to focus on three main things that is clear rules,monitoring,support if we implement these points,community services will not just be a punishment,but a real chance for the offender to improve and help the society.
THIS ARICLE IS WRITTEN BY SHUBHANGI SHUKLA FROM A SECOND YEAR LLB STUDENT OF UNIVERSITY OF LUCKNOW
REFERENCE :
Hiralal Mallick v.State of Bihar,AIR 1977 SC 2236
State of Gujrat v. Hon’ble High Court of Gujrat,(1998)7SCC 392
State of Punjab v. Bawa Singh,2015 Cr LJ 1701 (SC).
Sunil Batra v. Delhi Administrative 1978 4 SCC 409.
Indian Penal Code,1860,§ 53,No 45,Acts of Parliament,1860.
Bharatiya Nyaya Sanhita,2023,§ 4,No 43,Acts of Parliament,2023.
LAW COMMISSION OF INDIA,42nd report on the Indian penal code(1971).
MINISTRY OF INDIA AFFAIRS,GOVERNMENT OF INDIA,Report of the committee on reforms of criminal Justice System 176(2003).
AUTHOR IS JUDGE OF U.P JUDICIAL SERVICE, THE REFORMATIVE DIMENSION OF COMMUNITY SERVICE
PROF.S.N MISHRA BHARATIYA NYAYA SANHITA,2023 130 134(24th ed.,2024).
PROF.NAMITA AGGARWAL JURISPRUDENCE 86(11th ed.,2024)