The Author, Pasapala Syed Mustaq is a practising Advocate at the High Court of Andhra Pradesh.
Prologue:
India is stepping forward to become a prosperous nation in the world, it has its written constitution. By abiding by that holy text, the parliamentarians or legislators frame laws. The outcome of said framed laws would be by way of punishment or compensation or in some aspects both. If the act is of public wrong, punishment will be imposed and if the act is of private wrong, compensation will be awarded to the aggrieved party. In this write-up, the author would like to spotlight on Community service can be imposed as punishment for petty and first-time offenders whether it may be Public or Private wrong. As Adam Gardner says “It's great not only talking about community service in theory but actually doing it”.
International Perspective:
Community service orders as punishment are not only prevalent in India alone but it has been a pioneer in western countries since the 1970s due to the escalation of crime rates. In this piece, the author would like to enlighten the readers on how the said Community service as punishment practicing globally. In England and Wales, community service orders were set in motion in the year 1972 through the enactment of the Criminal Justice Act, 1972[1]. The community services orders are now termed Community payback. There are two types of community sentence orders, the Court avail to impose on persons who committed the crime. The first one is the Referral Order, which the Court will pose whether we are willing to perform prescribed community service or not. In this type, they were a panel of people from the criminal locality and youth justice workers and the second one is the Youth Rehabilitation Order which tends to rehabilitate the criminal or reform him/her and lasts for 3 years. Community Payback means unpaid work to remove graffiti in public places, decorate public places and clear wasteland, etc. Instead of sending them to prison, the Court will impose community services to be done in their locality. They have demarcated the crimes where community sentences can be imposed, those are damaging the property of others, assaulting other/s, and unlawfully getting benefitted or getting benefitted by doing fraudulent things. The Court has to look into the facts and criminal background of the said wrongdoer. Community sentences can be imposed on those persons who have committed the crime for the first time, are mentally disturbed or unsound mind, and are likely to restrain from committing a crime. The noteworthy point is that community payback will also include conducting counseling sessions, providing treatment if the person who committed the crime is mentally disturbed or unsound mind and will also ensure that they develop skills like reading, writing, etc., The same was followed by the United States of America, Germany, Newzealand, and Cannada upheld in the case of R vs Shaw[2] also follows the same as England and Wales. They will impose fines, restitution, or impose to do community services.
Australia
The effect of the community service orders has been reflected in Australia. It has enacted an Act by name the Penalties and Sentence Act, 1972[3] which is authorized by Parliamentary Counsel and at present September 2021. In the said Act Part 5 Division 2 solely elucidated the Community Service Orders. According to Section 101 of the said Act, if the Court is satiate that the offender is competent enough to perform community service. The Court by exerting discretionary power can order Community Service and the such offender has to perform unpaid community service for prescribed hours. Working hours as stated in Section 103(2) are not less than 40 hours and not more than 240 hours as prescribed by the Court. The supervisor to the offender will be the Corrective Officer. The Court has to give reasons and should explain to the offender the purpose and effect of the order if the offender contravenes what are the consequences the offender, corrective officer, and public prosecution can amend or revoke the order as stated in Section 105 of the Act. The Act has prescribed procedures and processes to follow while ordering Community Service Orders, after ordering Community Orders what should be done or what not. The same is followed by other countries.
India
India is heading forward to enact an Act to provide Community services to offenders as a punishment. India has tried to enact legislation but it went futile due to the lapse of time. The 156th Law Commission Report recommended amending Section 53 of the Indian Penal Code which states to provide punishment for the offenders. So, the then Law Minister tried to amend Section 53 of the Indian Penal Code to add Community Service as punishment along with this disqualification from holding office, order for payment of compensation, and public censure. The bill got lapsed due to the dissolution of the Houses of Parliament. The writer would like to heed the readers to the instances to which the Hon’ble Judges of India had awarded Community Service orders. Recently the Andhra Pradesh High Court awarded Community Service orders to 8 IAS officials of Andhra Pradesh State in the case of disobedience of an order or Contempt Case. The Court has ordered to visit the officials once every month for a year and spend the money on meals for the students moreover the Court went to the extent to ask the photographs of such visits to be sent to the Judicial Registrar to record the same. This will lower the dignity of the Court and there will be the probability that the common people might question the Judiciary on this aspect[4]. In the rioting and assault case, the Mumbai-based Additional Metropolitan Magistrate awarded Community Service to the three people who are charged with Rioting and Assaulting the Director of Bombay Hospital. The Judge had ordered the three people to render social services at their workplace for an hour a week after their working hours for two months instead of sending them to Jail[5]. In the year 2020, the then Chief Justice of Gujarat High Court in Vishal S. Awtani vs State of Gujarat[6] stated that Community Service is not a punishment but it is reparation. The Hon’ble Judge went on to say that the offender/violators will be a great resource for community service to the Government/Administration and to the Non Governmental organizations.
The Community service orders can be passed by any Magistrate including executive magistrates. The said Magistrates can impose the orders for the petty offence cases and to the 1st time offender. It is said that excuse once and punish if repeated. Because the people in India lack awareness of the law. If the person commits a petty offence for the 1st time, the concerned officer has to explain to him the law relating to the said Act and impose community service like Maintaing Silence in the premises, parking in the premises, and cleaning the premises which come under Swatch Bharat Abhiyan mission[7]. The Swatch Bharat Abhiyan mission is to maintain clean our surroundings. If the same person commits an offence again then he can be punished according to the provision prescribed for that offence.
Categories of Public: In this category, there are two types, one is General public and the second one is Public with legal acknowledgment. The general public is a people whether they can be from rural, urban, or backward areas, etc, and they are not be having legal awareness. The public with legal acknowledgment is those who are well aware of the law and also know that if violated what will be the consequences.
General Public: As stated above, the General public is people from rural, urban, or backward areas, etc, and they are not be having legal awareness. The main object of conducting the legal aid camps and legal awareness camps is to reach the people in the corner so as to aware them of their rights to exercise, their duties to follow and to make them aware of the punishments if a crime is committed will be the ramifications. Even though every week we are striving to aware people of the law still some people are unaware. So, if people commit an act that is a petty or minor offence, to such a person the authority should impose community punishment and also make them aware of the law.
Public with a legal acknowledgment: These people know about the law and the consequences if violated but sometime this kind of people will violate by getting influence from politicians and superior authority. Though this kind of people can tell that they can’t override or go against the law. For them, the kind of community punishment would be to conduct legal awareness and legal aid camps in all Educational Institutions, Public and Private departments, and construct orphanage buildings or any needful aid for the poor.
Readers would hunch whether imposing community punishment the authority has not deprived their dignity? Absolutely Not, because the person has done a wrongful act former with not knowing the repercussions, later knowing the consequences if violated. Community service as a punishment is one of the means to curb the minds of the wrongdoer so as to realize their mistake for the first time alone.
Coda:
The author would like to plea that, implement the 156th Law Commission Report and frame it the same way how the United Kingdom imposes community punishment for damaging the property of others, assaulting other/s, and unlawfully getting benefitted or getting benefitted by doing fraudulent things or as appropriate deems fit. This would tail off the cases pending in Court all over the country and succour to adjudicate the rest of the cases with keenly.
References:
[1] https://www.legislation.gov.uk/ukpga/1972/71/contents
[2] R vs Shaw (1977 26 CRNS 358)
[3] Penalties and Sentence Act, 1972, Queensland, Current as at 27th September,2021.
[4] https://www.deccanchronicle.com/nation/current-affairs/010422/8-ap-ias-ordered-to-do-community-service.html
[5] https://www.hindustantimes.com/mumbai-news/mumbai-court-orders-community-service-not-jail-time-for-three-convicted-for-rioting-assault/story-44foNws1HpZNMm2zIKbspJ.html
[6] Vishal S. Awtani vs State of Gujarat-2020 SCCOnline Guj 2814)
[7] https://www.pmindia.gov.in/en/major_initiatives/swachh-bharat-abhiyan/#:~:text=The%20Swachh%20Bharat%20Abhiyan%20is,employees%20across%20the%20country%20joined
