When a 19-year-old student in Ranchi was ordered by a local court to distribute five copies of the Quran to five institutions in the city as a bail condition, it created quite a furore. Richa Bharti had last week uploaded a post that allegedly hurt religious sentiments and the local court judge had granted her bail on the pre-condition that she donate copies of the Quran. Though the court withdrew the condition, citing doubts over the ease in its implementation, the judgement was criticised for being arbitrary.
There have been many cases in the past where the court has sentenced an accused or an offender to community service as a condition of bail or as a punishment in petty crimes. Earlier this month, Supreme Court ordered a doctor to plant 100 trees in one year as a punishment for attempting to commit murder at the age of 16. In February, the Delhi High Court directed Swan Telecom promoter Shahid Usman Balwa and four others to plant 15,000 trees, observing that they have failed to file a response on an ED appeal challenging their acquittal in the 2G case.
Though there have been many instances of courts sentencing offenders to community service, there is no law set in place or even guidelines that streamline such orders, which are often given as per the judge’s discretion.
“I do not think there is any other punishment apart from imprisonment and fine which we have right now. I think such judgements mostly suit the fancy of the judges who are giving the orders,” says advocate Sudha Ramalingam.
A study states that while some states in India have specific laws for habitual offenders and particularly for the process of deinstitutionalization, India has produced several innovations, such as a phased program from maximum security to free-living conditions and open-air prisons which use all types of offenders as paid agricultural workers. As per the current law, Chapter VIII, Section 106 To 124 Of Criminal Procedure Code (CrPC) provides alternatives to jail terms. However, these laws will apply either ahead of conviction – where a suspect is asked to explain why he or she should not be sentenced – or after conviction – as a condition for bail or for the offenders’ release on the basis of good behaviour – and does not exist as a punishment during conviction.
There are limitations of imprisonment, says Akila RS, an advocate practising in Chennai. “Prison time can also develop harsher criminals by introducing people into that system itself. The system should reform and rehabilitate, that is the objective of the justice system.”
In countries like the US and the UK, community service is ordered either as an addition to punishment or as an alternative to other forms of punishment like imprisonment, fines or probation. The community service order also benefits the public at large as well and presents as a viable option not just in cases of minor offences, but also to avoid overcrowding in prisons.
“There should be some community service and other forms of addressing these issues which are public in nature with alternate punishments but for which they should be streamlined with a proper mechanism. There should be a law which governs this. No judgement could be delivered as per the whims and fancies of the judicial officers,” Sudha Ramalingam adds.
Akila RS explains that the aim of justice in India should not be just to penalise the offenders, it should aim to reform as well as rehabilitate the offenders.
“One of the main objectives of punishment itself is to be a deterrent and rehabilitation of offenders. So sometimes community service may be better for first time offenders or young offenders. It, of course, depends on the severity of the crime – I don't think community service will be imposed or encouraged on people who have committed violent or serious crimes. But there definitely would be a category of offenders who would benefit from community service than from harsh prison time,” Akila shares.
According to data put out by the National Crime Records Bureau in 2016, out of the total number of persons arrested, 6.4 per cent (191849 out of 3737870) people were repeat offenders. The data showed that there was a rise in recidivism – which means the tendency of a convicted criminal to commit the same crime again – from 3 per cent in 2015 to 6.4 per cent in 2016.
"The increasing cases of recidivism clearly mean that imprisonment is not helping with rehabilitation. Of course, we have rehabilitation programs in prisons itself, but they are not very effective. For certain categories of crimes and certain categories of offenders, especially young offenders and first-time offenders, community service would be appropriate," Akila says.
However, the government must draft a law streamlining community service as a form of punishment, feels Sudha Ramalingam.
“The basic law is the legislature's responsibility. Though there are certain directions that can be given during the interim period – like the Vishakha guidelines where the Supreme Court gave the guidelines to be followed by employers till a new law is set in motion. Any judgement should be on logic reason and as per the dictates of the law. We definitely need alternatives for imprisonment. But that should come in after much deliberation and a formal law needs to be brought in,” Sudha says.