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By Amisha Singh & Rohan Bhatia
Keywords: Community service, Criminal Justice, Reformation, Rehabilitation, Convicts
The Indian Constitution espouses a rehabilitative and reformative form of criminal justice delivery in India since convicts are guaranteed certain fundamental rights under Part III of the Constitution. The President and Governor are bestowed with clemency powers under Articles 72 and 161, respectively, which complements the underlying philosophy of the Indian criminal justice system, to recognise and reward reform and repentance amongst convicts, other than in instances of wrongful convictions. Furthermore, the newly assimilated Model Prisons Act, 2023 provides prisoners with certain rights that are in line with internationally accepted conventions such as the International Covenant on Civil and Political Rights (ICCPR) and the Nelson Mandela Rules, 2015. However, the actualisation of these frameworks in India has faced considerable obstacles, that can be broadly categorized into four key problems, which impede the reformation and rehabilitation of convicts in India.
Firstly, Indian prisons are plagued with overcrowding on account of lengthy pre-trial detention periods, preference for incarceration over fines, and inadequate infrastructure within prison compounds. Indian prisons face overcrowding to an extent of 131.4% which in turn fetters the exercise of basic rights such as a dignified quality of life and safe custody, amid excessive convicts being housed in an accommodation meant for lesser people. Secondly, the living conditions inside most jails are ghastly and contrary to the guidelines laid down in the Model Prisons Manual, revised and published every few years. Each year, the Budget allocated to prisons across states is extremely low, which only allows for sustenance and no infrastructural or capital reform as necessitated by the changing times and populace inside prison grounds. In addition to the low budget, there is a significant difference in the actual expenditure vis-à-vis the allocated amounts. Moreover, the added layer of corruption by prison staff creates power dynamics behind bars that determine the quality of life a particular convict may lead, furthering the suffering of some vis-a-vis others. Thirdly, the atmosphere within prisons is not conducive to supporting reformation since the activities promoted and conducted by the prison administration are extremely restrictive in nature and do not focus on reform but merely provide an avenue for prisoners to earn a minimal living to maintain themselves. There is a need to inculcate educational and awareness programs across all prisons, which is currently sporadic and limited to prisons where NGOs and correctional institutions are involved on a regular basis. Psychiatric conditions are extremely prevalent among prisoners, which are only furthered by the agony and suffering on account of incarceration and the use of narcotic and psychotropic substances behind bars. Inmates serving short sentences are also bound to get affected by the atmosphere inside prisons, which impedes the rationale of repentance and reformation that these short incarceration stints wish to serve. Lastly, Indian society has repeatedly ostracized convicts and their families, especially those belonging to the subaltern and economically weaker sections of society. The inability of the Indian prison system to re-integrate its population into society has been a major obstacle in realizing the goal of rehabilitation of prisoners and the apparent marginalization of ex-convicts and their families, which hinders them from earning a living for themselves and hence pushing them down the road of criminality once again, impeding the possibility of reform.
The detrimental effect incarceration has on individuals has led many countries to initiate reform in their criminal systems, which includes non-custodial alternatives in consonance with the United Nations Rules for Non-Custodial Measures (The Tokyo Rules) of 1990. Punishments under the colonial Indian laws were limited to fines, incarceration and death, causing individuals involved in petty and non-serious offences to often serve jail time, creating a stigma against them in society. However, with the adoption of the new criminal laws and the introduction of community service, there is a newfound hope for a relative decrease in incarceration, which would not only initiate some semblance of prison reform but would instil a sense of responsibility towards the community amongst individuals ordained to undertake community service. It is surprising to note that the state has waited for a significantly long time to introduce community service in Indian law, it nonetheless remains a welcomed change. The introduction of community service as a punishment under Section 4 (f) of the Bharatiya Nyaya Sanhita (BNS) is progressive reform since it underscores reform in the Indian Criminal Justice System, which now recognises that not all crimes require a penal sanction, but a long road lies ahead of us in its actualisation and implementation. Moreover, this reflects the adoption of a restorative and rehabilitative model of justice, which would ensure that the offender compensates society for the damage they have inflicted. This form of sanction would be in complete contrast to incarceration since it would allow a convict to meaningfully contribute to society, in any capacity, instead of serving time behind bars. However, there remain concerns about the limited deterrent effect that community service as a punishment may produce in Indian society since people may pay off actors involved in the implementation of such sentences.
Presently, community service can be awarded as a punishment for six offences under the BNS which include,
attempting suicide to compel or restrain the exercise of lawful power, defamation, theft of property below Rs 5,000, misconduct in public by a drunken person, non-appearance at the specified place and time as required by a proclamation, and a public servant engaging in trade.
Community service can be awarded in isolation for each of these offences alongside fines, incarceration, or both. Community service has proven to be a successful sanction in countries such as the USA, Australia, South Africa and even in the UK. However, the adoption of such a punishment in India remains at an extremely nascent stage since the BNS does not provide the scope and ambit of community service, what it would entail, and who would be responsible for its implementation, indicating the active role of the judiciary in laying down guidelines and provisions for the same. While the actualisation of this forward-looking initiative by the government will take some time, it undoubtedly creates hope for further penological reforms in India. In summation, India needs to adopt more forward-looking criminal reforms that strike a balance between securing justice for victims and ensuring the fundamental rights of convicts are not violated. The adoption of policies that prevent the complete ostracization and marginalization of one of India’s most vulnerable and isolated communities, the prison population, is an idea whose time has well-nigh come.
Amisha Singh & Rohan Bhatia are final-year LLB (Hons.) students at the Jindal Global Law School. Their areas of interest are criminal law, constitutional law, commercial litigation and the intersection of law and policy.
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