Lawyers welcome community service as punitive action under new criminal laws

The introduction of community service as a punitive measure for petty offences under the Bharatiya Nyaya Sanhita (BNS), which has replaced the Indian Penal Code, has been welcomed by several lawyers, with some of them emphasising the potential of such action to humanise the justice system and reduce prison overcrowding.

However, they stressed on the need for clear guidelines and robust oversight to ensure effective implementation.

The prevalent laws -- the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act – which are around 160 years old, were replaced by the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA), respectively, on Monday.

Section 4(f) of the BNS introduces community service as a form of punishment for offences such as small theft, defamation, and attempts to die by suicide with the intention of keeping a public official from discharging her duty.

Top criminal lawyer Sherbir Panag said the new law must not become a “get out of jail free” card, and further suggested that if properly administered, the law need not be limited to just petty offences but also to first time offenders with marginal roles in more serious crimes.

“The Indian criminal justice system is belied by its capacity to prosecute and punish. Our prisons are overcrowded, predominantly by under trials. Community service has seen empirical evidence in several countries, especially the United States, as a means of reformative punishment. But the key will be to ensure meaningful community service, that is reviewed and monitored,” Panag said.

BNS section 202, (public servants unlawfully engaging in trade), section 226, (attempts to commit suicide, section 303(2), BNS section 355, (appearing in public places in a state of intoxication and causing annoyance), BNS section 356(2) (defamation) are some of the sections which entail to community service as a punishment.

Experts also pointed out loopholes in the new laws. For example, it is solely up to the judge preceding over a particular case to decide on whether the accused is entitled to community service or not.

Advocate Nisha Rai said the new law lacks clarity as sentencing community service was left as a voluntary punishment choice based on the judge’s discretion.

“There is also confusion on the implementation, as to how the administration will execute these punishments. Moreover, this can be inconsistent and biased and can be misused widely. This change aims to provide an alternative to traditional forms of punishment, addressing issues such as prison overcrowding and promoting the rehabilitation of offenders,” Rai said.