BEYOND THE PRISON BARS:

CONTEMPLATING
COMMUNITY SENTENCING IN
INDIA
Mitali Agarwal*
The deplorable state of the criminal justice administration system in India has
been highlighted time and again with several possible measures being sug-
gested to remedy the same. However, even within these discussions, the possi-
bility of the introduction of community sentence as a restorative justice reform
has not been given much consideration. At the same time, various
jurisdictions have successfully tested community service as a form of
alternative sentenc- ing. Notably, community service not only reduces the
burden on the system of incarceration, but also disburdens the state
exchequer. While there is ample literature debating other alternatives to
custodial sentencing, community sen- tencing in India remains a relatively
unexplored domain. In recognition of this situation, this paper examines the
attempts made in India to introduce community sentencing. This is juxtaposed
against the experiences with the sys- tem of community sentencing in different
legal jurisdictions. On this basis, a suggested model for the introduction of
community service in India has been outlined in this paper.

TABLE OF CONTENTS
I. Introduction.....................................120 United Kingdom 134
II. Community Sentencing: An H. Uganda.......................................134
Unexplored Potential in India.........123 IV. Understanding The Systems of
A. Open Prisons and Community Community Sentencing....................135
Sentencing..................................126 V. A Suggested Model of Community
III. A Study of Community Sentencing Service for India..............................136
Models in Other Jurisdictions.........128 A. Suitability of The Offender.........137
A. Australia.....................................129 B. Nature of Work...........................138
B. Finland.......................................129 C. Duration of Work.......................140
C. New Zealand..............................130 D. Rights of The Offender...............141
D. Oklahoma, United States of E. Monitoring..................................142
America......................................131 F. Breach........................................143
E. Singapore....................................132 VI. Conclusion.......................................143
F. Spain...........................................133
G.

*
4th Year Student of the B.A. LL.B. (Hons.) course at Maharashtra National Law University
Mumbai.
120 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
I. INTRODUCTION

An efficient criminal justice administration system is the backbone

of any civilised society. The state is obligated to uphold the faith reposed in it by
its citizens for securing their rights. In recent years, India has witnessed a
deteriorat- ing Rule of Law Index, especially in the realm of criminal justice,
wherein India’s global rank is as low as 77 out of 126 countries, as of 2019. 1 In
the past decade, various problems associated with the criminal justice
administration system, es- pecially the institution of prisons, have been
highlighted on repeated instances. Particularly, the prisons in India have become
infamous globally for their deplor- able living conditions and the appalling cases
of human rights violations which occur within them. 2 The National Human Rights
Commission Annual Report 2015-16 for instance, documented various such
instances.3 Violence, specifically physical and sexual violence, against inmates at
the hands of both, authorities and other prisoners, is notably common in Indian
prisons.4 Yet, despite various at- tempts at prison reforms, correctional homes
have continued to be overcrowded,5 often with individuals belonging to
underprivileged6 and uneducated sections of society,7 who languish behind bars
for decades, often serving more time than that prescribed for the offence by law.8

The number of prisoners lodged in various jails in India increased

from 4,18,536 in 2014 to 4,33,003 in 2016, witnessing a 3.5 per cent increase dur-
ing that period.9 The occupancy rate remained as high as 130.9 per cent in some
jails during the same period, with the national average standing at 113.7 per cent,
demonstrating the extent of overcrowding in Indian jails. 10 It was further found
that during the period under study, most inmates were uneducated and only a

1
World Justice Project, World Justice Report Rule of Law Index 2019, available at https://worldjus-
ticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019 (Last visited on March 22,
2019).
2
Human Rights Watch, Prison Conditions in India, available at https://www.hrw.org/sites/default/
files/reports/INDIA914.pdf (Last visited on March 22, 2019).
3
NATIONAL HUMAN RIGHTS COMMISSION INDIA, Annual Report 2015-16, 39-49, 88.
4
Ministry of Women and Child Development, Women in Prisons India, June 2018, available at
https://wcd.nic.in/sites/default/files/Prison%20Report%20Compiled_0.pdf (Last visited on
March 6, 2019).
5
Press Trust of India, Supreme Court shocked at over 600 per cent overcrowding in jails, THE TIMES
OF INDIA, March 30, 2018, available at https://timesofindia.indiatimes.com/india/supreme-court-
shocked-at-over-600-per-cent-overcrowding-in-jails/articleshow/63546393.cms (Last visited on
February 20, 2019).
6
Neeta Lal, Indian Jails Slammed as Purgatory for the Poor, The Citizen, August 11, 2016, avail-
able at https://www.thecitizen.in/index.php/en/NewsDetail/index/9/8433/Indian-Jails-Slammed-
as-Purgatory-for-the-Poor (Last visited on January 20, 2019).
7
MINISTRY OF HOME AFFAIRS, NATIONAL CRIME RECORDS BUREAU, Prison Statistics India 2015, 99,
102, 105, 108.
8
Vijay Raghavan, Undertrial Prisoners in India: Long Wait for Justice, 51(4) ECONOMIC AND
POLITICAL WEEKLY (January 23, 2016).
9
MINISTRY OF HOME AFFAIRS, NATIONAL CRIME RECORDS BUREAU, Prison Statistics 2016, xii.
10
Id., xi. (The occupancy rate at the end of 2016 was 113.7%).

January - March, 2019

 BEYOND THE PRISON BARS 121

small percentage, accounting for 8.7 per cent of the total inmates, had received
education post higher secondary school level.11

It is worth noting that the number of under trial prisoners increased

from 2,82,076 in 2015 to 2,93,058 in 2016,12 and 87.1 per cent of total prisoners
belonged to the age group of 18-50 years, 13 depicting how human resources can
continue to lay unproductive behind bars in India, while taxpayers continue to
bear their economic burden. It is noteworthy that the total expenditure for the
financial year 2016-17 for all prisons in the country was Rs. 4944.7 crores. 14 Yet,
it is indeed unfortunate that despite the extent of expenditure incurred, conditions
in Indian prisons continue to be deplorable. 15 The existence of these issues within
the prison framework forebodes the approaching collapse of a crumbling institu-
tion. Therefore, there exists an urgent need to shift towards consideration of the
viability of alternatives to custodial sentencing, which is administered through the
prison system.

Several alternatives to imprisonment have been implemented in

India.16 However, even within such efforts, the introduction of community sen-
tencing has not been given much consideration, having been dismissed as not be-
ing practicable to be given effect to in the Indian setup. 17 Community sentencing,
also known as community service, is part of an array of alternative sanctions to
imprisonment. For the purpose of this paper, it is defined as a form of non-cus-
todial punishment for offenders to undertake unpaid work for a certain number
of pre-determined hours.18 In case of community sentencing, various types 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 be given to first-time offenders, convicted for less severe of-
fences, instead of awarding a short-term sentence or fine.19

11
Id., 41. (A total of 28.4% prisoners were illiterate).
12
Id., xiii.
13
Id., xv.
14
Id., xxiii.
15
Krishnadas Rajagopal, Supreme Court slams primeval conditions in jails, observation homes,
THE HINDU, November 22, 2018, available at https://www.thehindu.com/news/national/supreme-
court-slams-primeval-conditions-in-jails-observation-homes/article25569788.ece (Last visited
on March 6, 2019).
16
BUREAU OF POLICE RESEARCH AND DEVELOPMENT, Alternatives to Imprisonment, available at http://
www.bprd.nic.in/WriteReadData/userfiles/file/6515844528-Part%20V.pdf (Last visited on
January 4, 2019).
17
LAW COMMISSION OF INDIA, Report on the Indian Penal Code, Report No. 156: Volume 1 (August
1997), available at http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf (Last visited
on January 2, 2019).
18
Anita Abdul Rahim et al, Community Service as an Alternative Punishment: The Extent of its
Application on the Categories of Crime and Offender in Malaysia, 1 International Journal of
Education and Research (July 2013).
19
Brett Snider, What is Community Service? When Can You Get It?, June 25, 2014, available at
https://blogs.findlaw.com/blotter/2014/06/what-is-community-service-when-can-you-get-it.html
(Last visited on March 20, 2019).

January - March, 2019

122 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
Based on the restorative and rehabilitative justice models, commu-
nity sentencing holds offenders directly responsible for the damage they have
caused to the society.20 It also directly provides the community with human re-
sources, which would otherwise have remained unproductive for a long period of
time due to incarceration. Further, not only does community sentencing help the
offenders acquire new skills through supervised work activities but it also aids in
establishing within them a positive work attitude and sense of belongingness with
the local community.21

Moreover, it reduces the overall burden on the incarceration sys-

tem through decongestion of the overcrowded prisons and contribution towards
the shielding of first-time offenders from interaction with hardened criminals.
Additionally, it has also proved to be effective in terms of reduction in costs,
avoid- ance of re-entry crisis, decline in recidivism, and improvement in the
offender’s overall sense of self-worth.22

Community sentencing has been tested across various jurisdictions

like the United States of America, 23 the United Kingdom,24 Australia,25 Spain,26
South Africa27 and Zimbabwe28 to address various problems associated with the
institution of prisons. On the other hand, introduction of community service in
India has been resisted. Hence, this paper proposes a comprehensive model of
community sentencing, feasible for implementation in the Indian context, through
an analysis of the best practices prevailing in other jurisdictions. Part II of the pa-
per analyses the attempts made in India to introduce community sentencing, with
reference to 156th Law Commission Report, The Indian Penal Code (Amendment)
Bill, 1978, and judicial precedents. Part III studies the systems of community
sentencing as prevailing in various legal jurisdictions. Learning from the mod-
els adopted in other jurisdictions, Part IV of the paper draws a comprehensive
model of community sentencing as practicable in India. Lastly, Part V evaluates

20
ROBERT D. HANSER, COMMUNITY CORRECTIONS 473 (2013).
21
R.J. Harris & T.W. Lo, Community Service: Its Use in Criminal Justice, 46(4) INTERNATIONAL
JOURNAL OF OFFENDER THERAPY AND COMPARATIVE CRIMINOLOGY (2002).
22
Christopher Bright, Community Service, available at http://restorativejustice.org/restorative-jus-
tice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-3-programs/community-
service/#sthash.8HIi9GTC.xcJOatKo.dpbs (Last visited on January 1, 2019).
23
United States Courts, Chapter 3: Community Service (Probation and Supervised Release
Conditions), available at https://www.uscourts.gov/services-forms/community-service-proba-
tion-supervised-release-conditions (Last visited on January 20, 2019).
24
Government of United Kingdom, Community Sentences, available at https://www.gov.uk/com-
munity-sentences (Last visited on March 20, 2019).
25
Government of South Australia, Community Service, available at https://www.corrections.sa.gov.
au/community-corrections/community-service-repaysa (Last visited on January 21, 2019).
26
ESTER BLAY & ELENA LAURRAURI, COMMUNITY PUNISHMENT 191-208 (2016).
27
LUKAS MUNTINGH, BEYOND RETRIBUTION — PROSPECTS FOR RESTORATIVE JUSTICE IN SOUTH AFRICA
105-119 (2005).
28
Governance and Social Development Research Centre, Community Service in Practice, available
at http://www.gsdrc.org/docs/open/ssaj27.pdf (Last visited on January 20, 2019).

January - March, 2019

 BEYOND THE PRISON BARS 123

the implications and problems which may be associated with the implementation
of such a system.

II. COMMUNITY SENTENCING: AN UNEXPLORED

POTENTIAL IN INDIA
With over a staggering 2,17,55,186 criminal cases pending, 29 the
criminal justice administration system continues to be sluggish in India. Even a
single day in several prisons across India can be a harrowing experience for any
individual.30 Evidently, the psychological effects of incarceration on inmates are
long-term on account of the pain, deprivation, isolation, and extremely unusual
norms of living that they bear.31 Given that the conditions in prisons are hostile
and stressful, and the prisoners are subjected to an often harsh and rigid institu-
tional routine, the process of institutionalisation or prisonisation of the inmates
occurs in response to the extraordinary demands of prison life.32 This process
of integration into the prison culture due to its deep relation with societal dep-
rivation can manifest itself in chronic manners in inmates. 33 As a consequence,
during their sentence, inmates may suffer from emotional withdrawal, depres-
sion, hyper-vigilance, display suicidal tendencies, engage in substance abuse or
showcase other symptoms of post-traumatic stress disorder. 34 Such psychological
effects cumulatively impede their post-incarceration rehabilitation and interfere
with their successful re-integration into a social network and employment setting,
and resumption of their familial relationships.35

Thus, the inhumane conditions in prisons and the exposure to hard-

ened criminals can lead to the release of damaged individuals after the completion
of their sentences.36 Even after the release of the offender, the stigma of serving a
prison sentence persists, and the society shuns them as an outcast.37 The socio-
eco-

29
NATIONAL JUDICIAL DATA GRID, Summary Report of India as on May 10, 2019, available at http://
njdg.ecourts.gov.in/njdg_public/main.php (Last visited on March 10, 2019).
30
Shivendra Srivatsava, Exposed: UP’s hell prison where inmates suffer vicious torture and corrup-
tion, INDIA TODAY, September 7, 2016, available at https://www.indiatoday.in/india/story/exposed-
ups-hell-prison-where-inmates-suffer-vicious-torture-and-corruption-339802-2016-09-07 (Last
visited on March 20, 2019); Dhrubo Jyoti & Roshni Nair, Tales from former inmates: What life is
like in a women’s jail in India, H INDUSTAN TIMES, July 26, 2017, available at https://www.hindusta-
ntimes.com/india-news/tales-from-former-inmates-what-life-is-like-in-a-women-s-jail-in-india/
story-UBBSj0N5yz2VskZpqgGiLK.html (Last visited on March 22, 2019).
31
Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison
Adjustment, FROM PRISON TO HOME CONFERENCE WORKING PAPER (2002).
32
Id.
33
S. Sanyal, Prison and Prisonization of Inmates, 16(63) SOCIAL DEFENCE (1981), available at
34
Shivani Tomar, The psychological effects of incarceration on inmates: Can we promote positive
emotions in inmates, 16 DELHI PSYCHIATRY JOURNAL (2013).
35
HANEY, supra note 31.
36
Id.
37
Jason Schnittker & Andrea John, Enduring Stigma: The Long-Term Effects of Incarceration on
Health, 48(2) JOURNAL OF HEALTH AND SOCIAL SCIENCE (2007).
January - March, 2019
124 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
nomic implications continue throughout the life of the offender even after serving
a sentence, inhibiting progress in their chance of re-integration into the commu-
nity.38 These adverse implications of incarceration should be viewed as reminders
of the emerging need to not only strengthen the prison system but also gradually
diminish the use of prisons and move towards alternative measures.

Several forms of alternatives to custodial sentencing like open pris-

ons, parole, probation, vocational training, and rehabilitation centres have been
sought to be introduced in India to improve the criminal sanction system, but
com- munity sentencing has arguably not been subject to due contemplation. The
only provision for it in India exists for juveniles under §18(1) (c) of the Juvenile
Justice (Care and Protection of Children) Act, 2015,39 which provides for
community ser- vice for child offenders, if the Juvenile Justice Board deems fit.
Developments at the policy level have also remained limited, with the Social
Justice Department of Kerala only recently having planned to bring new projects
aiming at reintegra- tion of first-time offenders into mainstream society 40 and
allowing for offenders involved in petty offences sentenced to three years
imprisonment or fine or both to engage in community service in lieu of custodial
punishment.41

Looking back several decades, the Indian Penal Code (Amendment)

Bill, 197842 (‘The Bill’), had provided for community service orders and the pro-
visions therein were mostly satisfactory. As per the Bill, any offender not under
eighteen years of age could be ordered to work for a certain number of hours
with- out any remuneration, subject to terms and conditions. Further, it provided
that the consent of the convict to perform the work would be required, and the
court would have to be satisfied that such person is suited to perform the work
required of him. As per the Bill, community sentencing could be awarded for
offences punishable with less than three years, with work hours ranging between
forty hours to a thou- sand hours.

This provision, however, posed a major discrepancy in the Bill, since

§51 of the Factories Act, 1948 specifies that no adult worker shall be required or
allowed to work in a factory for more than forty-eight hours in any week. Given
that a maximum of forty-eight hours per week was the established norm, the
maxi- mum community sentence for an offender who has committed an offence
punish- able with a term of less than three years should ideally have been
estimated at five

38
Danya E. Keene, Amy B. Smoyer & Kim M. Blankenship, Stigma, Housing and Identity After
Prison, 66(4) THE SOCIOLOGICAL REVIEW (2018).
39
Juvenile Justice (Care and Protection of Children) Act, 2015, §18(1)(c).
40
R.K. Roshni, State’s convict probation system showing results, THE HINDU, March 4, 2019, avail-
able at https://www.thehindu.com/news/national/kerala/states-convict-probation-system-show-
ing-results/article26432687.ece (Last visited on January 22, 2019).
41
Shan A.S., Serve less time in prison - serve community instead, THE NEW INDIAN EXPRESS (October
26, 2018).
January - March, 2019
 BEYOND THE PRISON BARS 125
42
The Indian Penal Code (Amendment) Bill, 1978.

January - March, 2019

126 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
months only.43 Yet, this would imply that an offender who commits an offence
punishable with less than three years could get away with a sentence of a maxi-
mum of five months of community service, which could be disproportionate to
the gravity of the offence.

A counter to this stance could possibly have been that the duration
prescribed in the Bill did not have to be in conformity with the Factories Act as
the service sought to be expropriated was not in the ordinary course and instead
on account of punishment for engagement in criminal activities. This issue, how-
ever, remained unresolved, with the Bill lapsing due to the dissolution of the Lok
Sabha.44 Nevertheless, the Bill served as the first attempt to insert community
service as a form of punishment under the Indian Penal Code.

Later, the 156th Law Commission Report in 1997 also discussed the
proposed amendment of §53 of the Indian Penal Code45 to include community ser-
vice as one of the sanctioned forms of punishments, and deliberated upon Clause
27 of the Indian Penal Code (Amendment) Bill, 1978, seeking to define the con-
tours of community service.46 Ultimately, it opined that the open air prison system
was preferable as a correctional measure in comparison to community service, 47
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 sen-
tencing as a form of punishment for criminal actions, through the exercise of its
discretionary powers. It is to be noted that there is no specific provision on com-
munity service in India and all orders for the same are passed in exercise of the
discretionary power vested in the court to pass any other order as it may deem fit
as High Courts, in the exercise of their power under §482 of the Code of Criminal
Procedure, can make any orders to meet the ends of justice.

Recently, a lower court in New Delhi ordered community service,

observing that imprisonment may not always serve the desired purposes, espe-
cially when the accused is a first-time offender, given that harsh views may ruin

43
The maximum number of hours that could be awarded as per the Bill was 1000 hours. As per
The Factories Act, 1948, the maximum duration of work per week is 48 hours. Hence, a maxi-
mum of 21 weeks (5 months approximately) could be awarded. (1000 hours/48 hours = 21 weeks
approximately).
44
Press Release, Press Information Bureau, October 21, 2008, available at https://pib.gov.in/newsite/
erelcontent.aspx?relid=43986 (Last visited on January 18, 2019).
45
The Indian Penal Code, 1860, §53 enumerates the punishments which can be meted out to con-
victed offenders such as death, imprisonment for life, rigorous or simple imprisonment, forfeiture
of property and fine.
46
LAW COMMISSION OF INDIA, supra note 17, 28-34.
47
Id., 34-35.

January - March, 2019

 BEYOND THE PRISON BARS 127

his entire future while also taking away from his chances of reformation. 48 The
position taken by the lower court perhaps draws from the dictum of Pappu Khan
v. State of Rajasthan,49 in which the Supreme Court observed that a welfare state
cannot afford a large non-productive prison population as it imposes a heavy bur-
den on the state exchequer. Therefore, the Apex Court expressed that it is in the
interest of the State to reform prisoners by teaching them techniques and skills
which would ensure a source of livelihood to them after they are released from
jail.50 Further, in Babu Singh v. State of U.P.,51 the Supreme Court held that
restora- tive devices through means of community service, meditative drill or
study classes should be innovated upon to help redeem the offender.

It can therefore, be argued that the judiciary has, to a degree, rec-

ognised the benefits of community sentencing. However, like other jurisdictions,
legislation is still required for more extensive use of this alternative.

A. OPEN PRISONS AND COMMUNITY SENTENCING

At this juncture, it is suggested that a discussion juxtaposing the

system of open prisons already prevalent in India, with community sentencing,
shall be fruitful. The basic difference between the two is that while community
sentencing is an alternative to custodial sentencing, 52 open jails are part of the
post-custodial reforms. The idea 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 of-
fender.53 This arguably also serves towards removing the stigma attached to indi-
viduals having served prison sentences, and subsequently avoiding other problems
associated with incarceration, as discussed in Part I.

In open prisons, depending on the nature of the prison, the state has
the added responsibility to either provide lodging, employment or both, which in
itself is a cumbersome and expensive process.54 Unlike open prisons, no physical

48
Ayesha Arvind, Delhi’s petty criminals work off their debt to society as courts catch on to com-
munity service, DAILY MAIL, October 7, 2013, available at http://www.dailymail.co.uk/indiahome/
indianews/article-2447171/Delhis-petty-criminals-work-debt-society-courts-catch-community-
service.html#ixzz54bQ4W7gB (Last visited on January 24, 2019).
49
Pappu Khan v. State of Rajasthan, 2005 SCC OnLine Raj 348 : 2005 Cri LJ 4732, ¶6.
50
Pappu Khan v. State of Rajasthan, 2005 SCC OnLine Raj 348 : 2005 Cri LJ 4732, ¶6.
51
Babu Singh v. State of Uttar Pradesh, (1978) 1 SCC 579 : (1978) 2 SCR 777.
52
PARLIAMENTARY OFFICE OF SCIENCE AND TECHNOLOGY, PARLIAMENT OF UNITED KINGDOM, Alternatives
to Custodial Sentencing, May 2008, available at https://www.parliament.uk/documents/post/
postpn308.pdf (Last visited on February 3, 2019).
53
Ministry of Justice, Unpaid Work / Community Payback Service Specification and Operating
Manual for Community Payback: Delivering the Sentence of Unpaid Work (2010), available at
https://www.justice.gov.uk/downloads/offenders/probation-instructions/pi_02_2010_unpaid_
work_community_payback_service_specification.pdf (Last visited on March 7, 2019).
54
Bhopal: MP’s 6th open jail inaugurated in Bhopal, THE FREE PRESS JOURNAL, March 7, 2019, avail-
able at https://www.freepressjournal.in/bhopal/bhopal-mps-6th-open-jail-inaugurated-in-bhopal

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128 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
infrastructure is required to be set up by the government to house the offender and
his family in community sentencing. Rather, the offender continues living with
his family and reports for the assigned work and performs the same under the
supervi- sion of an appointed officer.55

It is also to be noted that while there are a different set of rules

adopted by each open jail, most of them, although permit prisoners to leave prison
grounds, restrict their physical movement beyond a designated area, 56 and require
inmates to report for evening roll calls. 57 Community sentencing generally does
not entail any such elaborate regulation, and the few which are prescribed gener-
ally for reporting and performing the said service. In open prisons, the onus of
finding employment lies on the prisoner himself, who may often find it difficult
to get employed because of his status as an offender and the rules and conditions
imposed as a part of their sentence.58 On the other hand, in case of community ser-
vice sentences, courts require offenders to work on projects which are identified
as having social importance.59

Further, since many offenders come from underprivileged back-

grounds, community service can also act as a means of providing training to
them and acquiring new skills,60 while residents of open prisons would largely
have to depend on their existing skills to gain employment outside the prison
premises. Therefore, given these relative benefits of community sentencing over
the system of open prisons, which is being readily embraced as an alternative to
the rigorous custodial imprisonment regime,61 it is argued that the time has come
to reconsider the feasibility of adopting community sentencing as a form of pun-
ishment in India.

(Last visited on March 14, 2019).

55
Nicola Laver, Community sentences, available at https://www.inbrief.co.uk/court-judgements/
community-sentences/ (Last visited on March 14, 2019).
56
Thisopenprisonallowsinmatestolivewithfamilyandgoouttowork!,INDIATODAY,September14,2018,
available atiatoday.in/education-today/gk-current-affairs/story/open-prison-indore-1340052-
2018-09-14 (Last visited on March 14, 2019).
57
A prison where the inmates have to go and find jobs, BBC N EWS, February 2, 2019, available ath-
ttps://www.bbc.com/news/stories-47093046 (Last visited on March 14, 2019).
58
Department of Corrections, Annual Report 2009-2010.
59
Scottish offenders complete six million unpaid hours, BBC N EWS, February 6, 2018, available at
https://www.bbc.co.uk/news/uk-scotland-42960495 (Last visited on March 14, 2019).
60
Royal Borough of Greenwich, Offenders are helping to make a difference with community pay-
back, March 18, 2019, available at mmunity_payback (Last visited on March 20, 2019).
61
SC tells states to consider setting up an open prison in each district, H INDUSTAN TIMES, December
12, 2017, available at https://www.hindustantimes.com/india-news/sc-tells-states-to-consider-
setting-up-an-open-prison-in-each-district/story-tnLIiuOT6tAKlso8wKamUJ.html (Last visited
on March 14, 2019).

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 BEYOND THE PRISON BARS 129

III. A STUDY OF COMMUNITY SENTENCING

MODELS IN OTHER JURISDICTIONS
Community sentencing has spread across the world, albeit unevenly,
mostly throughout Western Europe, with limited use in Asia and South America.62
Yet, the importance of the same appears to have been increasingly recognised in
the international community in the last few decades. Notably, the United Nations
Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) sug-
gests member nations to adopt alternatives to custodial measures like commu-
nity sentencing.63 Further, the ground-breaking Kampala Declaration on Prison
Conditions in Africa also recommended that community sentences be preferred in
comparison to traditional imprisonment.64

While variations have been witnessed in how these recommenda-

tions of integrating community service models within the criminal sentencing re-
gime are implemented across various jurisdictions, commonly, as part of adopted
models, offenders convicted for minor offences undertake a court-mandated num-
ber of hours of unpaid work under supervision in all the studied jurisdictions. 65 In
several countries therefore, community sentencing has achieved a position of an
intermediate sanction between the alternatives of probation and imprisonment. 66

In an effort to better understand how nations integrate community

sentencing, I have selected eight jurisdictions for a study of their community sen-
tencing models. In all of these jurisdictions, community sentencing is awarded in
the form of unpaid work to first-time offenders and may include, but is not limited
to, mental health and alcohol treatment, drug rehabilitation, counselling sessions,
skill training, and accredited programmes aimed at changing criminal behaviour.
Work like removing graffiti, painting, clearing wastelands, gardening, decorating
public places and buildings may also be ordered to be performed at NGOs, gov-
ernment hospitals, palliative centres, local bodies etc., is undertaken by offenders
under the supervision of a ‘community payback supervisor’.

In this part, therefore, various factors such as the suitability of the

offender, the number of hours awarded, the supervising mechanism, the breach
regulation, and the effectiveness, alongside the public perception regarding the
community service rendered, have been outlined for each jurisdiction.

62
Shelley Turner & Chris Trotter, Best practice principles for the operation of community service
schemes: a systematic review of the literature in M ONASH UNIVERSITY CRIMINAL JUSTICE RESEARCH
CONSORTIUM, MELBOURNE (2013).
63
United Nations Standard Minimum Rules for Non-custodial Measures, G.A.Res.45/110, U.N.
Doc. A/RES/45/110(December 14, 1990).
64
The Kampala Declaration on Prison Conditions in Africa, (September 19-21, 1996), 2-3.
65
Id.
66
NORVAL MORRIS &MICHAEL TONRY, BETWEEN PRISON AND PROBATION: INTERMEDIATE PUNISHMENTS IN
A RATIONAL SENTENCING SYSTEM 121 (1990).

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130 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
A. AUSTRALIA

In Australia, each state has a different criminal justice administra-

tion system due to the federal-state composition. The states have their own com-
munity service schemes but these schemes are cumulatively characterised by the
following elements. Firstly, the work hours which can be awarded can range from
between forty67 to seven hundred and fifty hours.68 Secondly, the community cor-
rection orders do not exceed five years. 69 Thirdly, those engaged in probationary
services assess the offenders’ suitability for community service, prior to the sen-
tencing, and advice the court on the same. 70 Fourthly, offenders are supervised by
community service staff while serving their orders. 71 In some Australian jurisdic-
tions, community service can also be applied in lieu of a fine.72

The trends regarding the number of people performing community

service-based sentences are varied across jurisdictions in Australia. Yet figures
have been promising, with an increase of fourteen percent being noted in the av-
erage daily number of persons serving community based sentences (including
non custodial sentences such as community service), since June 2018. 73 As of
June 2019, 79,134 people were undertaking community based sentences across
Australia, indicating a five percent increase since March 2019 and notable forty
percent increase since June 2009.74 Further research conducted among a sample in
Victoria indicated that when provided with viable alternatives to imprisonment,
people are likely to prefer alternatives to building more prisons.75

B. FINLAND

Community service is part of a general punishment recognised un-

der the Criminal Code of Finland76 since 1995.77 In terms of duration, fourteen
to two hundred and forty hours of community service can be awarded.78 While

67
Penalties and Sentences Act, 1992 (Australia), §103(2)(a)
68
Crimes (Sentencing Procedure) Act, 1999 (Australia) §§17G(1), 73A (2)(d).
69
Sentencing Advisory Council, Community Correction Order, available at https://www.sentenc-
ingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/community-correction-
order (Last visited on March 21, 2019).
70
TURNER, supra note 62.
71
Id.
72
Id.
73
Australian Bureau of Statistics, Corrective Services, Australia, March quarter 2019, available at
https://www.abs.gov.au/ausstats/[email protected]/0/C57B3CAC8D0EDB87CA25825000141F8F?Opend
ocument(Last visited on January 21, 2019).
74
Id.
75
Dr Karen Gelb, Sentencing Matters Alternatives to Imprisonment: Community Views in Victoria,
SENTENCING ADVISORY COUNCIL (2011).
76
Criminal Code of Finland, 1894 (Finland), Chapter 6, §1.
77
Criminal Sanctions Agency, Community service, available at https://www.rikosseuraamus.fi/en/
index/sentences/communitysanctions/communityservice.html (Last visited on January 21, 2019).
78
Id.

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 BEYOND THE PRISON BARS 131

sentencing to community service is generally awarded when the sentence for the
offence is less than eight months of imprisonment, other preconditions may also
be outlined as per legal policy.79 In other cases, where community service is
awarded to supplement a sentence of conditional imprisonment exceeding eight
months, up to ninety hours of community service may be ordered. 80 Under
Finland’s legal system, one day of imprisonment is also capable of being
converted to one hour of community service.81

It is the responsibility of the Criminal Sanctions Agency to assess

the suitability of offenders for community service and to supervise their
performance while serving such a sentence. 82 For the purpose of making an
assessment on the request of the prosecutor, a pre-sentence report is prepared by
the Agency, com- menting on the suitability of the offender for performing
community service as per a designated sentence plan.83

In Finland, recidivism has been found to be slightly lower after com-

munity service than after prison sentences and a more suitable sanction for those
who lack experience in prisons. 84 Over half of all the offenders sentenced to com-
munity service were convicted for the offence of aggravated drunken driving. 85
Around 3600-3700 community service sentences are enforced annually, of which
more than eighty percent are completed.86

C. NEW ZEALAND

Community work in New Zealand was introduced by the Sentencing

Act, 2002.87 Community sentence in New Zealand involves unpaid work, treat-
ment sentences, participation in some form of rehabilitation, and surveillance sen-
tences, often utilising electronic monitoring and restrictions on movement within
the community.88 The sentences range from forty hours to four hundred hours

79
Id.
80
Id.
81
Tapio Lappi-Seppälä, Imprisonment and Penal Policy in Finland in SCANDINAVIAN STUDIES IN LAW
(2012).
82
R.I.S.E., Criminal Sanctions Agency, available at https://www.rikosseuraamus.fi/en/index/sen-
tences/communitysanctions/communityservice.html (Last visited on March 12, 2019).
83
Id.
84
Marja-Liisa Muiluvuori, Recidivism Among People Sentenced to Community Service in Finland,
2 JOURNAL OF SCANDINAVIAN STUDIES IN CRIMINOLOGY AND CRIME PREVENTION (2001). (Recidivism
was observed by comparing the subsequent recidivism in those who undertook community sen-
tences with persons sentenced up to eight months of imprisonment.)
85
R.I.S.E, supra note 82.
86
Id.
87
Sentencing Act, 2002 (New Zealand), §15.
88
Department of Corrections, Community sentence patterns in New Zealand: An international
comparative analysis, April, 2012, available at https://www.corrections.govt.nz/ data/assets/
pdf_file/0009/672768/nz-community-sentence-patterns-april2012.pdf (Last visited on January 3,
2019).

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132 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
and can be shortened by ten percent if an offender does good work. 89 Further, of-
fenders with longer sentences must complete at least one hundred hours within
six months.90 Unlike other jurisdictions, offenders serving at least eighty hours
can spend up to twenty percent of those hours in doing work and training in life
skills.91 This training can range from writing a resume and preparing for job inter-
views, to parenting, literacy and numeracy, road safety, and budgeting.92 A
distinct element is found in New Zealand, in terms of repeating the work hours if
the of- fender does not perform the work satisfactorily.93

Community service has found to be working in a positive manner

in New Zealand. In 2018, 17,829 community work sentence orders were given to
offenders in New Zealand.94 It has also been found that some offenders benefited
from the projects to such an extent that they continued as volunteers even after
their hours were served.95 Though it is difficult to accurately determine an overall
public opinion on the community service, a high rate of orders reflects the public
demand for it.96

D. OKLAHOMA, UNITED STATES OF AMERICA

The Oklahoma Community Sentencing Act was implemented in

2000. The Act requires each county to develop its own community sentencing
system.97 Community sentencing may involve community service with or without
compensation to the offender; substance abuse treatment; education and literacy;
employment opportunities and job skills training.98 Before awarding the sentence,
assessment is made on the Level of Services Inventory (‘LSI’) which gathers in-
formation on the offender on various parameters. A score is then arrived at and
only the offenders with scores in the moderate range are eligible. If it is found that
adequate assessment by means of an LSI assessment or another form of approved
assessment is not possible for any reason, the offender will be deemed ineligible
for any community services.99 Further, this has to be accompanied by a written

89
Department of Corrections, Community Work, available at https://www.corrections.govt.nz/re-
sources/newsletters_and_brochures/community_work_brochure.html (Last visited on March 22,
2019).
90
Id.
91
Id.
92
Id.
93
Id.
94
Community Work Sentences Given to Offenders in New Zealand, available at https://figure.nz/
chart/eeNqWY9VMjS05H8T-P53zKcu0EMeBOWf5 (Last visited on March 22, 2019).
95
Department of Corrections, Community Work, available at https://www.corrections.govt.nz/re-
sources/newsletters_and_brochures/community_work_brochure.html (Last visited on March 22,
2019).
96
Department of Corrections, supra note 88.
97
Oklahoma Community Sentencing Act, 2000 (U.S.A.), §22-988.4.
98
Oklahoma Community Sentencing Act, 2000 (U.S.A.), §22-988.8.
99
Oklahoma Community Sentencing Act, 2000 (U.S.A.), §22-988.18(C).

January - March, 2019

 BEYOND THE PRISON BARS 133

supervision plan and an appropriate community punishment which is reviewed

by the court.

As per the latest data available of 2014, 22,607 orders were awarded
by the end of the year.100 Not only is the cost of community sentencing less com-
pared to that of prisons, the annual average cost per offender has been found to be
declining for community service as well.101 Further, the rate of recidivism has also
been found to be low.102

E. SINGAPORE

Community order in Singapore includes mandatory treatment order

A. day reporting order, community work order, community service order and
short detention order.103

B. The terminology used in Singapore is distinct from that in other juris-

dictions. Community work order as per §344 of Singapore’s Criminal
Procedure Code applies to an offender who is sixteen years of age or
above,104 if the court is of the view that the performance of such orders
associated with the offence under the supervision of a community work
officer will lead to reformation.105 The order of the court awarding com-
munity work specifies the maximum number of hours to be performed and
any other conditions as the court may deem fit.106

§346(2)(a) of Singapore’s Criminal Procedure Code further provides

for community service orders to be awarded post satisfaction regarding suitability
of the offender examined on the basis of physical and mental condition of the of-
fenders. Further, a report is also called upon from the community service officer
regarding the suitability of the offender. The remaining provisions are similar to
§344. Though the Code is may not be too detailed in relation to community
service orders, it can be inferred from available annual reports that community
service or- ders have been implemented since 2011 for offenders aged 16 years
old and above, who have committed offences punishable with a term of
imprisonment not exceed- ing 3 years, and as of 2016, such orders were
implemented with a tenure of forty to two hundred and forty hours.107

100
OKLAHOMA DEPARTMENT OF CORRECTIONS, Community Sentencing Annual Report FY 2014, 7.
101
OKLAHOMA DEPARTMENT OF CORRECTIONS, Community Sentencing Annual Report FY 2009, 29.
102
Linda G. Morrissey, & Vickie S. Brandt, Community Sentencing in Oklahoma: Offenders Get a
Second Chance to Make a First Impression, 36 TULSA L. J. 767 (2013).
103
Criminal Procedure Code (Singapore), 1955, §336.
104
Criminal Procedure Code (Singapore), 1955, §346(1).
105
Criminal Procedure Code (Singapore), 1955, §344(4).
106
Criminal Procedure Code (Singapore), 1955, §344(6).
107
MINISTRY OF SOCIAL AND FAMILY DEVELOPMENT, GOVERNMENT OF SINGAPORE, Probation and
Community Rehabilitation Service Annual Report 2016, 55.

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134 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
In Singapore, offenders have found themselves to have benefited
from community service orders by acquiring new skills, life values and sensitisa-
tion as human beings.108 In 2016, sixty seven offenders were placed on the CSO
and ninety percent of them completed it successfully.109 The lesser number of sen-
tences can arguably be attributed to the overall low rate of crime in Singapore.

F. SPAIN

Article 49 of the Criminal Code, 1995 of Spain provides for com-

munity service wherein the offender performs specific activities of public utility
which may have relation to the offence committed, for a maximum of eight hours.
Community service may range from thirty one to one hundred and eighty days for
less serious penalties.110 In some cases, each day of imprisonment has to be trans-
formed into one day of service.111 The order is required to be completed within
one year of beginning the work,112 which is generally not possible, particularly for
of- fenders with full-time employment.113 Thus, the orders are usually not
completed within one year and are capable of expiring. 114 This is an unnecessary
procedural hurdle and should arguably be done away with.

The Spanish Criminal Code further provides that the work provided
under community service should not be against the dignity of the convict or for
the attainment of economic interests. 115 The law suggests that community service
or- ders may also include participation in workshops or trainings or re-education
pro- grammes on labour, culture, traffic education, sexual and other similar
matters.116

In recent years, community service has been used extensively in

Spain and there have far-reaching developments in the implementation and su-
pervision of orders, from majorly interventionist practices towards increasingly
managerial styles.117 In 2018, 51,070 such orders were given in Spain.118
However, this has not led to a reduction in the use of prison sentences as the
prison popula- tion is growing rapidly as well.119

108
Id., 44-46.
109
Id., 54.
110
The Criminal Code, 1995 (Spain), Art. 33(3)(k).
111
The Criminal Code, 1995 (Spain), Art. 88.
112
The Criminal Code, 1995 (Spain), Art. 40.
113
Ester Blay, It could be us: Recent Transformations in the Use of Community Service as a
Punishment in Spain, 2 EUROPEAN JOURNAL OF PROBATION 65 (2010).
114
Id., 74; Gill McIvor, Ester Blay et al., Community service in Belgium, the Netherlands, Scotland
and Spain: a comparative perspective, 2(1) EUROPEAN JOURNAL OF PROBATION UNIVERSITY OF
BUCHAREST 84 (2010).
115
The Criminal Code, 1995 (Spain), Art. 49(2).
116
The Criminal Code, 1995 (Spain), Art. 49(5).
117
BLAY, supra note 113.
118
INSTITUTO NACIONAL DE ESTADÍSTICA, Conviction Statistics 2018.
119
BLAY, supra note 113.
January - March, 2019
 BEYOND THE PRISON BARS 135

G. UNITED KINGDOM

In the United Kingdom, community service is referred to as com-

munity payback120 and is implemented by the Ministry of Justice. First-time of-
fenders, people with mental health conditions and those who show promise of
reformation are awarded unpaid work of forty to three hundred hours depending
on the gravity of the crime.121 Apart from this, other conditions such as curfews,
restrictions on travel or the requirement of wearing an electronic tag may also be
imposed on the offender.122 The extensive use of community payback is evidenced
by taking a look at the statistical figures. In 2018, 83,022 orders were passed in
the United Kingdom.123

A mixed public perception regarding community sentencing has

emerged in the United Kingdom. Despite offenders having largely found it to be
helpful, the public is still not convinced that it is as effective as a prison. 124 The
offenders are ordered to undertake an education, training and employment course
which makes them capable of taking up jobs in future. 125 However, the instances
of breach by the offenders are frequent and they have to be sent back to the
prisons or alternatively two hundred hours of unpaid work are added to their
sentences.126 However, it is being recognised that community payback has an
increasing role to play and hence, reforms such as enlisting more community
groups and involv- ing the private and voluntary sectors are being taken up to help
in the successful enforcement of the program.127

H. UGANDA

In Uganda, community sentencing was introduced by Community

Service Act, 2000.128 After checking the eligibility of the offender from a pre-
sentence report, unpaid work of a maximum of six months can be awarded. 129 In
certain cases it may also involve activities such as speaking to high school
students

120
Government of United Kingdom, Community Payback, available at https://www.gov.uk/commu-
nity-sentences (Last visited on January 21, 2019).
121 Id.
122
Elena Kantorowicz, The “Net-Widening” Problem and its Solutions: The Road to a
Cheaper Sanctioning System, 10 (2013), available at http://www.antoniocasella.eu/nume/
Kantorowicz_2013.pdf (Last visited on January 24, 2019).
123
Ministry of Justice, Criminal Justice System and Offenders Criminal History, available at https://
moj-analytical-services.github.io/criminal_history_sankey/index.html (Last visited on March
23, 2019).
124
Can community sentences replace jail, BBC NEWS, available at http://www.bbc.com/news/maga-
zine-10725163 (Last visited on March 21, 2019).
125 Id.
126 Id.
127 Id.
128
Community Service Act, 2000 (Uganda).

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136 NUJS LAW REVIEW 12 NUJS L. REV. 119
129
(2019)
Community Service Act, 2000 (Uganda), §4.

January - March, 2019

 BEYOND THE PRISON BARS 137

about the dangers of drunk driving and underage drinking.130 In cases of breach of
the order, the orders may be cancelled, varied, or a fine may be imposed.131
Uganda has a dedicated body to exclusively deal with such orders, viz. the
Directorate of Community Service along with the National and District
Community Service Committee.132

Studies indicate that the award of community service orders has

decreased prison population.133 In 2016, the number of orders was 10,975 in
Uganda.134 Since 2001, approximately $3.7million in savings by the government
and $860,000 as efficiency savings to placement institutions in the form of labour
provided by offenders have been recorded. 135 Further, a very positive perception
has been found in the community regarding such orders. The offenders have
found themselves to be benefited by working and building a personal and
professional network.136

IV. UNDERSTANDING THE SYSTEMS OF

COMMUNITY SENTENCING
From the above discussion, it can be broadly concluded that commu-
nity system has been mostly faring well in all the aforementioned jurisdictions. In
all the aforementioned countries, community service has been brought to solve the
problem of overcrowding of prisons and increasing costs as well as to rehabilitate
the offenders, especially first-time offenders convicted for petty offences. Many
of the studied jurisdictions (barring New Zealand, Singapore, Spain and United
Kingdom) conduct a pre-sentencing screening of the offenders to assess their suit-
ability and thereby a report is prepared by the concerned department and submit-
ted to the judge. Oklahoma has a comparatively complex pre-screening process
where not only is a detailed report sought but also a supervision plan is called for
in advance.

Further, community service in Spain and Singapore require that the

work should have some relation with the offence committed. The number of hours
varies in each jurisdiction wherein a range of minimum and maximum hours has

130
Uganda Radio Network, Community Services Sentences Can Reduce Prison Congestion, avail-
able at https://ugandaradionetwork.com/story/community-services-sentences-can-reduce-prison-
congestion (Last visited on March 10, 2019).
131
Community Service Act, 2000 (Uganda), §5.
132
Community Service Act, 2000 (Uganda), §10.
133
Uganda Radio Network, supra note 130.
134
MINISTRY OF INTERNAL AFFAIRS, GOVERNMENT OF UGANDA, National Community Service Programme
Annual Report 2015-16, 1.
135
Penal Reform International, Making Community Service Work A resource pack from East
Africa, (2012), available at https://cdn.penalreform.org/wp-content/uploads/2012/05/Making-
Community-Service-Work-A-Resource-Pack-from-East-Africa-2MB.pdf (Last visited on March
3, 2019).
136
Uganda Radio Network, supra note 130.

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138 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
been set up. Finland appears to be the most lenient as it converts one day of impris-
onment into one hour of community service orders.

Some jurisdictions such as New Zealand offer distinctive features,

which incentivises the successful performance of the offender by shortening the
sentence by ten percent if the offender performs good work and/or offering him
twenty percent of the hours on skill training. Unlike other jurisdictions, paid
community work in New Zealand and United Kingdom may also involve elec-
tronic surveillance. Some jurisdictions such as New Zealand, Australia, Spain,
Oklahoma and Finland also require the sentence to be completed within a given
time frame. Further, in certain jurisdictions community sentencing is monitored
by a specifically set up institution or by probation boards. A breach of the com-
munity sentence can be dealt with a fine, an increase in the hours of work or send-
ing back the offender to prison. New Zealand offers another exclusive feature viz.
requiring the work hours to be repeated if the offender does not perform the tasks
satisfactorily.

While it is difficult to assess the public perception regarding the sen-

tence accurately, it has been found in most jurisdictions that the public is optimis-
tic considering the rate of use of community service orders. Yet certain sections
of the population may show reservations to community sentencing in jurisdictions
where it is implemented strictly, such as in the United Kingdom. From the of-
fender’s perspective, community sentencing has been positively received due to
its rehabilitative and restorative nature. Further, the rate of recidivism in
community sentencing has also been found to be better than that in prisons. In all
the afore- mentioned jurisdictions, community sentencing orders have been
resorted to quite extensively and have been found to be successful.

V. A SUGGESTED MODEL OF COMMUNITY SERVICE

FOR INDIA
It can be concluded from the foregoing discussion that convention-
ally, community service schemes usually require first-time petty offenders to
undertake a predetermined and court-mandated number of hours of unpaid super-
vised work. While ostensibly beneficial, the models used abroad cannot be trans-
planted while seeking to implement community service as a sentencing measure
in India. Resultantly, various issues such as those of determining the suitability of
offenders, the conditions to be imposed, the nature and duration of the work, the
measures for monitoring, and the issue of breach of the order have to be analysed
while devising a model of community sentencing for India.

January - March, 2019

 BEYOND THE PRISON BARS 139

A. SUITABILITY OF THE OFFENDER

A single day in prison can be a harrowing experience and the

psycho- logical consequences of the same leave an indelible imprint, especially on
young offenders. Thus, it is argued that it is appropriate to award community
service to first-time offenders convicted for petty crimes or defaults after taking
into consid- eration other relevant circumstances, as provided in this Part. In
general, the first- time offenders who are convicted for petty offences which are
not punishable for more than one year, or those involved in cases of default of
monetary penalties, can be considered for the purpose of awarding community
service orders,137 in order to provide them with an opportunity for repentance and
reformation. This is also apparent from the analysis of various jurisdictions in Part
III wherein community service has been found to be a punishment of intermediate
nature, neither being extremely light nor too stringent for the petty offenders who
perform them.

Such orders however, are not suitable for offenders convicted of

seri- ous offences as punishment has to be commensurate to the nature of offence
as is evident from the cases referred in Part II. However, deviating from this
convention, the Hon’ble Supreme Court in State v. Sanjeev Nanda138 awarded
granted commu- nity service to the offender for the offence of culpable homicide
not amounting to murder. The sentencing in this case indicates a possible
departure from the general inclination towards exclusion of community
sentencing as a means of punishing graver offences. In fact, the Apex Court
opined that community service by the offender in the case would be beneficial to
the society.139 Nevertheless, it is empha- sised that courts need to exercise due
caution while ordering community sentence by considering the facts and
circumstances of each case so as to not interfere with the overarching purpose of
the criminal justice system.

The nations of Australia, Finland, Uganda and the state of Oklahoma

necessitate the submission of a pre-screening report by the designated agency to
the judge in order to facilitate a decision regarding the suitability of the offender
for the service. However, in the Indian context it appears appropriate to not make
the process cumbersome from the initial phases of bringing community service
into the criminal sentencing regime. The judge could instead make the assessment
himself based on certain parameters while awarding the sentence.

Some suggestive parameters which could be considered in such

determination are the nature of crime committed, the criminal antecedents, the

137
The United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders, Enhancement of Community-Based Alternatives to incarceration at the sentencing
stage of the Criminal Justice Process, available at http://www.unafei.or.jp/english/pdf/RS_No61/
No61_25RC_Group2.pdf (Last visited on January 24, 2019).
138
State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, (2012) 8 SCC 450 : AIR 2012 SC 3104.
139
State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, (2012) 8 SCC 450 : AIR 2012 SC 3104,
January - March, 2019
140 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
¶60.

January - March, 2019

 BEYOND THE PRISON BARS 141

mental and physical condition of the offender, his or her willingness to engage
in the program, the relative threat posed to the society, the room for reformation
and the chances of reoffending. Opinions of experts may nonetheless be sought in
order to ensure that a correct assessment is made by the judge. A state agency
may be designated in the meantime with officials being specifically trained to
carry out assessments for the purpose of advising judges about the suitability of
offenders for partaking in community service as punishment for their offences.

B. NATURE OF WORK

The objective of community sentencing is to render services that are

beneficial to the community and restore, to the extent possible, the wrongs com-
mitted by the offender. The nature of work, therefore, should be such that it not
only helps the society but also rehabilitates the offender by assisting in the
acquisi- tion of new skill sets. It is suggested that tasks including but not limited
to cleaning of public spaces, collection of waste material, planting of trees,
gardening, assist- ing the elderly, painting and beautification of public areas, civic
volunteering in road traffic and working for the betterment of such youth as is
under risk, can be ordered.

The nature of the work ordered should be assessed as per the

specific needs and skills of each offender. For instance, if the offender is pregnant
or feeble
i.e. incapable of undertaking physical labour, the nature of work awarded should
take into consideration her special needs. 140 The sentencing should incorporate
activities capitalising on the relative strengths of the offenders for the benefit of
society, i.e. if an offender is skilled in a particular vocation, the potential should
be utilised in the work awarded as much possible. A similar system has been
adopted in Uganda wherein the offender has to be matched with an appropriate
institution. As an example, a doctor could be ordered to perform community
service at a local clinic.141 However, in such case, it would also be consequential
to ensure that the doctor has not been sentenced for any offence related to his
medical practice.

It is to be noted here that evaluating the nature of work to be

awarded after taking due factors into consideration vests a substantial discretion
with the concerned authority which may potentially pose certain issues. Concerns
relating to the same have been raised in studies conducted in foreign
jurisdictions.142 The discretion is similar to that exercised by judges in
determining the duration of a sentence or the amount of fine. In order to address
such concerns, judges in the United Kingdom assess the facts, the guilt of the
offender, the level of harm caused

140
The Community Service Regulations, 2001, Second Schedule, Part A (Uganda), Reg. 7.(The
Court must specify in the Order the nature of work to be performed by the offender and such work

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142 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
should not be beyond the capability, physical strength or actual ability of the offender).
141
The Community Service Regulations, 2001 Second Schedule, Part A (Uganda), Reg. 17.
142
TURNER, supra note 62.

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 BEYOND THE PRISON BARS 143

and thereupon use sentencing guidelines to reach a proportionate sentence. 143 It is

submitted that a similar mechanism can be adopted in India, which incorporates
proper sentencing guidelines, at least for community service sentences by taking
into consideration international best practices. The existence of guidelines and the
ability of the public to examine if a sentence of community service corresponds
to the guidelines can arguably curtail the possibility of an arbitrary exercise of
discretion to a large extent.

Before awarding certain type of community work to an offender, it

is also desirable that there be a direct connection between the nature of the work
assigned and the crime committed by the offender so as to enable the offender to
witness the first-hand damage created by his offence. 144 This has been recognised
in Spain and Singapore wherein the laws state that the convict shall perform spe-
cific activities of public utility that may consist of tasks similar to the nature of
the offence committed.145 This correlation also serves the purpose of reparation,
wherein the work undertaken by the offender may potentially benefit the whole of
the community and repair, albeit in a symbolic way, the harm caused through the
offence.146

For instance, in one case, an offender booked for drunken driving

was ordered to undergo four hours of training for at least 15 days and help the
traffic police sensitise other offenders against traffic violations. 147 Although many
forms of work can benefit the public, if special care is taken to award community
work which has an inherent relation with the nature of offence, it is argued that
the chances of reformation in the offender are likely to be higher.

Similarly, a person convicted for mischief could be ordered to repair

the property damaged by him or some other property. Further, an offender con-
victed of causing hurt or grievous hurt could be required to perform community
service at hospitals and disability rehabilitation centres, provided that it is deter-
mined that he shall not cause any hurt to the vulnerable persons around him
during the course of such community work placement. It is posited that placing
offenders in such environments can help an offender to realise the nature of
damage caused by his acts, thereby serving as the first step towards his
reformation.

However, this requirement of having a correlation between the of-

fence committed and the nature of work, despite being desirable, should not be
viewed as a mandatory precondition to the performance of the sentence. Hence,

143
Sentencing Council, Sentencing Basics, available at https://www.sentencingcouncil.org.uk/ (Last
visited on January 21, 2019).
144
TURNER, supra note 62.
145 Id.
146
JA BRANDARIZ GARCÍA, LA PENA DE TRABAJOENBENEFICIO DE LA COMUNIDAD COMO SANCIÓN PENAL
103-104 (2002).
147
ARVIND, supra note 48.
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144 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
in the cases where such coordination is impossible due to cogent reasons, the of-
fender should be allocated some other work, irrespective of there being no cor-
relation, subject to fulfilment of other requirements. This is necessary to ensure
reduction in procedural hurdles and allow for successful execution of community
service sentences.

Further, it has to be taken into consideration that the majority of the

prison population in India belongs to the marginalised sections of society and is
not suitably educated or trained to meet the market demands. 148 Evidently, some
basic training of offenders is required to allow them to effectively engage in com-
munity service activities. Such skill training is also particularly necessary to avoid
recidivism and to equip the offenders with the ability to be employable.
Moreover, if possible, community service sentences should also mandate
attendance of set hours of anger management sessions, counselling sessions,
mental health treat- ments or vocational trainings, which can be crucial for their
rehabilitation, as seen in the case of New Zealand where up to twenty percent of
the sentence may be dedicated to such activities.

Finally, while selecting placement institutions for serving commu-

nity sentences, a page can be taken out of Uganda’s book. It is to be ensured that
the selected institutions provide specific services to the community. For instance,
public schools, hospitals, health clinics, foster homes and orphanages can serve
as viable centres of community service. Further, the construction or maintenance
of public roads, environmental conservation and enhancement works and projects
for water conservation are beneficial alternatives as well. 149 It is also be seen that
the institution should be within a reasonable travelling distance of the offender
and should have work available that would be within the range of the offender’s
ability.150

C. DURATION OF WORK

In keeping with the principle of proportionality in sentencing, the

duration of community work awarded should be proportionate to the gravity of
the offence, so as to ensure that the orders are received seriously. As seen in Part
III, several jurisdictions have specified the range of minimum and maximum
number of hours that can be awarded, with discretion being vested in judges to
decide the quantum of hours that should be awarded in the given facts of a case.
However, adoption of the Spanish model of transforming each day of
imprisonment into one day of a community work, with a maximum of eight hours
each day, could also be considered in India as a static standard for specific
offences instead of relying on a dynamic range of hours. It is argued that this
can help resolve the issue of
148
See MINISTRY OF HOME AFFAIRS, supra note 9, i-xxiii.
149
MINISTRY OF INTERNAL AFFAIRS, GOVERNMENT OF UGANDA National Community Service Programme
Annual Report 2015-16, 2.
150 Id.
January - March, 2019
 BEYOND THE PRISON BARS 145

the community sentence not being ‘strict enough’ for relatively graver offences, if
awarded in any case.

Over time, the development of a pre-defined method of determining

the duration may be considered. Such a method could bind judges to calculations
as per statutory provisions instead of allowing for determination of community
service hours on the basis of subjective grounds. It is expected that this would
bring uniformity whereby two offenders who may have committed the same of-
fence would not be awarded different sentences. Further, to incentivise better per-
formance, it is suggested that the reduction of sentences by about ten percent, in
terms of tenure, if the offender performs well could also be considered.

D. RIGHTS OF THE OFFENDER

As mentioned in Part I, the prison system in India has been severely

criticised on account of the instances of grave human rights violations of prison-
ers. Since community sentencing is an alternative to custodial imprisonment, it
is imperative for it to seek to address at least some of the vices of custodial pun-
ishment. Community sentencing in India should therefore, not unduly interfere
with an offender’s rights. It must be ensured that while serving their community
sentence, offenders are not made to face unreasonable restrictions or unfair treat-
ment on account of their conviction status. The offenders should also be allowed
to maintain a normal family life as far as possible, while maintaining necessary
safeguards in conformity with the nature of the sentence.

Further, to ensure that the aims of the community service are ful-
filled, it is imperative that the offenders provide their consent and undertake to
complete the orders voluntarily.151 In Spain, the consent is sought twice. It is
sought when the offender accepts community service as a punishment and once
again when he or she agrees to a particular placement. 152 However, in India, the
second consent need not be contemplated as it may pose a procedural hurdle and
cause unnecessary delay, which may further undermine the punitive credibility of
the sanction as has been seen in Spain, in some instances.153 At the same time, it is
to be noted that the work imposed as part of a community service sentence should
not be undignified in nature and a clause should be specifically inserted to this ef-
fect in any governing legislation, as has been done in Spain.154

151
BLAY, supra note 113.
152 Id.
153 Id.
154
The Criminal Code, 1995 (Spain), Art 49(2).

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146 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
E. MONITORING

It is acknowledged that various difficulties may be encountered in

the implementation of community service orders if they are not supervised
properly. The monitoring of offenders during the sentence would be crucial for
ensuring that they do not take unfair advantage of the system. In order to alleviate
this con- cern, an independent agency which is not involved in the prosecution of
offenders should be engaged in the supervision of the entire process post the
conferment of a community service sentence. The officials of such an agency
should be adequately trained to undertake such supervision in a sensitive yet
pragmatic manner.

Moreover, a community service supervisor who is preferably an of-

ficer engaged in law enforcement, should be designated for each offender serving
a community service sentence. The supervisor should be tasked with checking
the progress made by the offender and his compliance with the conditions of the
sentencing order. A comprehensive report should also be required to be prepared
by the officer, which should then be submitted to the sentencing court at the end
of the sentence.

Further, a private-public partnership should be developed in relation

to the implementation of community service orders. It is argued that non-gov-
ernmental organisations can play a crucial role not only by allowing offenders to
volunteer with them for various forms of social work and imparting essential
value education to them but also monitoring them alongside the government
appointed supervisor to ensure transparency in the process. In order to make
effective use of this partnership, it may also be mandated that the final report
prepared by a supervisor regarding an offender on community service is verified
by the non- governmental institution involved as the placement centre and/or the
civil monitor for the offender.

Furthermore, electronic tagging systems as are being utilised in New

Zealand155 and United Kingdom156 for surveillance of varied types of offenders,
could be used to ensure that the offender was on-site during the working hours.
Through the help of location detectors, law enforcement authorities can accurately
examine the compliance of the community service order and detect any breaches
in the same. However, while electronic tagging systems promise as a means of
monitoring, they must be adopted with caution. Data storage and sharing
protocols should be developed in order to ensure that data collected thereof is not
misused and due regard for the privacy of a sentenced individual is maintained. 157

155
See Sentencing (Electronic Monitoring of Offenders) Amendment Act, 2016 (New Zealand).
156
See Electronic Monitoring Services, Electronic Monitoring: A guide for criminal justice profes-
sionals, 8-11.
157
Probation Institute, The Use Of Technology And Electronic Monitoring (EM) To Support The
Supervision And Management Of Offenders In The Community, December, 2017, available at
January - March, 2019
 BEYOND THE PRISON BARS 147

F. BREACH

To maintain the sanctity of community service orders, it is necessary

to deal with any breaches strictly. New Zealand’s practice of requiring the repeti-
tion of the same community service order in case of unsatisfactory performance of
the allotted work can be adopted in India as a means of combating the casual atti-
tude which offenders may display in regard to their community service sentences.
Further, a supplementary approach can be adopted which stipulates that minor ir-
regularities in performance would be dealt with through issuance of warnings and
imposition of fines. Imposition of curfew timings or the extension of the required
number of hours of community service on the defaulting offender, as is done in
the United Kingdom, 158 can also be considered in case of noted casual attitude of
an offender towards the conditions of a community service order.

It is asserted, however, that cases of gross disobedience of orders

should lead to re-sentencing of the offender for the original offence along with
custodial imprisonment and additional penal consequences in order to set a strict
precedent and to promote positive engagement of offenders with their community
service obligations. In such an event, the degree of compliance with the awarded
community service sentence, if any, should be taken into account in the determi-
nation of the custodial sentence. Further, it is emphasised that it must be ensured
that such processes for addressing breaches of community service orders are not
cumbersome or long drawn but instead are as streamlined as possible in order
to facilitate greater correctional impact on offenders and prevent offenders from
utilising the interim period to add to their wrongs through further engagement in
crimes.

VI. CONCLUSION

Community service as a form of alternative sentencing has proved

to be effective in various jurisdictions around the world. If such orders are imple-
mented effectively, the services of the offenders can serve as a valuable resource
for governments. With the resultant decongestion of prisons and the utilisation of
offenders for providing services to the public, a reduction of burden on the state
exchequer can be reasonably expected. Additionally, community service orders
would not only avoid the stigmatisation related to imprisonment, but also assist
in the quick assimilation of offenders back into the society. Understandably, there
may be various obstacles in the efficient integration of community service orders
within the broader sentencing policy of a nation. In particular, a proper legisla-
tion would be required for the execution of community service based sentences

http://probation-institute.org/wp-content/uploads/2017/12/PI-Position-Paper-317-EM-1.pdf (Last
visited on March 23, 2019).
158
Sentencing Council, Breach of a Community Order, October 1, 2018, available at https://www.
sentencingcouncil.org.uk/offences/magistrates-court/item/breach-of-a-community-order-2018/
(Last visited on March 23, 2019).

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148 NUJS LAW REVIEW 12 NUJS L. REV. 119
(2019)
in India. Evidently, for such a legislation to be enacted and implemented, it is
essential that the organs of the government adopt a positive attitude towards non-
custodial approaches to criminal justice.

The police would particularly play a major role in the implementa-

tion of community sentencing and would require proper sensitisation regarding
its effectiveness in the process. Moreover, the judiciary would have to play the
role of a vanguard to ensure strict compliance with the orders. The courts would
then have to adopt a balance between the corrective and the deterrent machinery,
depending on the specific facts of each case. It would also have to be ensured that
while community sentencing is encouraged, the discretion vested with the court is
not misused by the privileged sections to abuse the machinery of justice. Further,
it is important to keep in mind that the State shall not be able to undertake the im-
plementation of community service sentences in isolation. In such regard, a robust
community support from the general public would be required to transform the
justice system to be truly rehabilitative in nature. Thus, a constructive approach
towards a reformative justice administration system would need to be promoted
not only among all involved state institutions, but also the society at large, in
order to actualise the goals of community service sentences once it is accepted
within the conventional fold of criminal sentences in India.

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