‘sr2ar2020 Community Service as an Alternative ta Imprisonment Systam in Criminal Law -FastForward Justice AUTHORED BY: MR. DIVYANSHU GUPTA, A STUDENT AT SYMBIOSIS LAW SCHOOL, PUNE CLICK HERE TO READ DISCLAIMER ABSTRACT: Criminal law reflects true fundamental valuesthat help people to integrateand it ensures peace and harmony in the society. To maintain that law and order it uses “punishment” as a tool to punish the offender and protects the society from notorious activities of those people who try to disturb the peace. Prison system ought to achieve protection in society by applying principles of deterrence, prevention, retribution and reformation, However, India finds it difficult to manage its prison system. The jails are overpopulated and that only provide inadequate conditions to offenders. Keeping offenders in jail will have more psychological, social and moral impact and will go a long way in curbing crimes. Increasing crime rates in our country make these inadequacies more repulsive. Some offenders are brought in close near more hardened criminals and where there is any chance of rehabilitation in society. Community Service as a form of punishment will create a moral in the eyes of criminals and have a psychological impact on their minds. This article will critically examine community service as an alternative to imprisonment and finally will conclude with suggestions on community service which could be adopted by law- makers in reforming the Indian criminal system. LINTRODUCTION hitps:fatforwardjustice.comicommunity-servce-as-an-alterative-toimprisonment-systenin-riminalaw! 18‘sr2ar2020 Community Service a8 an Alternative ta Imprisonment System in Criminal Law -FastForward Justice To punish the criminal is the primary duty of the State as crime is considered as an offense against the State, According to Keeton, a crime is an undesirable act which the State finds it most convenient to correct by the institution of proceedings for the infliction of a penalty, instead of leaving the remedy at the discretion of the injured party.(1] This penalty is in the form of punishment. Punishment is nowhere mentioned in the Indian Penal Code 1860.{2] However, Punishment is the authorized imposition of deprivation of one’s individual rights or privacy which otherwise such person has a right and he is imposed with special burden because he has been found guilty of some offense and has caused harm to the innocent [3] The State must protect a person's life, liberty or property and this can be achieved through the involvernent of criminal law by imposing an appropriate sentence. [4]Therefore,punishment can be used as a method of reducing the crime either by deterring the offenders or incapacitating or by reforming them into a new person. The prisons have been considered to be the most essential tool in achieving the objectives of punishment.(5] However such objectives are not able to achieve much in our country and there is overcrowding, torture and ill-treatment, neglect of health hygiene, restrictive jail visits, ete.(6] Hence, a new form of alternative imprisonment system has been adopted in our country and one such practicethat our Indian Judiciary has adoptedis Community Service Order. Il COMMUNITY SERVICE AS REFORMATIVE THEORY OF PUNISHMENT The major object of this theory of punishment is to reform criminals.(7] In State of Gujarat v Hon'ble High Court of Gujarat[é)it was held that Reformation should be the main objective of imprisonment and during incarceration there should be an effort to create a good human being out of convicted prisoners.(9) People who follow this theory believe that if criminals are sent to prison to be transformed into good citizens, then that prison will be a dwelling house. For the reformation of criminals, criminals must be given education and taught some art or craft during his imprisonment period so that he may learn some productive work and be able to live a better life once he is released from jail. Therefore, the Indian Criminal Justice System in today modern era has adopted reformative theory while awarding Punishment to criminals instead affecting their individual liberty in imprisonment. ‘Community Service has been recognized in our Criminal Justice System. According to it, Community Service is not punishment in the actual term but the service to society which he owes. This social service will not only be appreciated by society but also will give self-satisfaction and comfort to him, especially in the case where because of his deeds and action, human lives have been lost. hitps:fatforwardjustice.comicommunity-servce-as-an-alterative-toimprisonment-systenin-riminalaw! 218‘sr2ar2020 Community Service a8 an Alternative ta Imprisonment System in Criminal Law -FastForward Justice Ill: BRIEF BACKGROUND OF HISTORY OF PRISON REFORMS IN INDIA The total capacity of jails in the country is approximately 3,66,701 but the number of Jail inmates in the country stands around 4,19,623,10]The maximum number of undertrials 99,398 (35.2%) out of 2,82,076 were detained for up to 3 months at the end of 2015.4 total of 3,599 undertrials (1.3% of total undertrials) were detained in jails for more than 5 years at the end of the year 2015.11] With this data we can confirm the situation of prison in our country. The reform in the prison system in India goes back during the time of the British era, The Prisoners Act of 1894 governs the prison management in India.{12] This act was a reformative act as whipping was abolished and medical facilities were better improved and better amenities were provided to women inmates. The report of the Indian Jail Committee 1919-1920 for the first time identified ‘the reformation and rehabilitation’ of offenders as the objective of prison management in the country.(13] Pakwasa Committee suggested that prisoners should be utilized for community services and do productive workfor their own living. Further, different committees had been set up in the country after it to bring reforms in the prison management. Jail reform Committee of 1980-1983 identified that imprisonment is not always the best way to meet the objectives of punishment, the government should undertake a new approach to imprisonment which included community service[14]To avoid overcrowding in jails, criminal law has adopted a liberal approach such as extensive use of fine as alternative imprisonment, release on probation, release on bail, etc, Therefore, community service also assumes an importance in today's era as an alternative to imprisonment system, IV: COMMUNITY SERVICE AS ALTERNATIVE TO IMPRISONMENT IN INDIAN PENAL CODE, 1860 Indian Penal Code (Amendment) Bill 1978 proposed to add community service as a form of punishment however this was rejected by the Law Commission of India.['5] Community Service or corrective labour is a form of punishment in which the convict is not deprived of his liberty,(16] This community service shall be served either at the workplace of the accused or in a special place of work as authorized by the courts. Although this form of punishment has not been incorporated in IPC, courts from time to time through judgments have held this punishment as the most suitable form of punishment instead of sending offenders to Jail In State Tr. PS Lodhi Colony, New Delhi v Sanjeev Nanda{17], where six human lives were lost due to hit and run case, Court adopted community service as a form of punishment instead incarcerating the convict further in jailin R.K Anand v RegistrarHigh Court Delhi\18], the Court held that instead of sending contemnor to hitps:fatforwardjustice.comicommunity-servce-as-an-alterative-toimprisonment-systenin-riminalaw! 38‘sr2ar2020 Community Service a8 an Alternative ta Imprisonment System in Criminal Law -FastForward Justice jail, it will be useful if we keep him out and let him do the things that will be utilitarian to the society. In Solemen SK v State of West Bengal! 19), the Supreme Court passed the order to plant 100 trees within a year to the person who was found to be juvenile at the time of alleged attempt to murder.The court said that instead of referring the person to the Juvenile Justice Board, a registered medical practitioner, he should perform community service.These cases suggest that the judiciary is inclined towards community service orders instead of sentencing persons to offenders V: INTERNATIONAL SCENARIO TO ALTERNATIVE IMPRISONMENT SYSTEM Certain norms and standards have been developed at the international level to create prison reforms around the world and in developing countries that lack financial resources and that are insufficient in reforming the prison reforms. United Nations Office on Drugs & Crime at the international level promotes criminal justice reforms and adopt a certain code of conduct for the victims, accused and guilty person that is based on human rights values.{20lIndia is one of the member states of. UNODC. international Conference on Community Orders in Africa organized by Penal Reforms International and Zimbabwe National Committee Community Service in Kadoma adopted a declaration that prison should be used as a last resort and community service as alternative to imprisonment should be adopted whereas possible.[21] Similarly,the United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) endeavors alternative to imprisonment.(22] Imprisonment deprives a person's right to liberty. Although in my opinion, the argument for the right to liberty should not stand for hardened criminals however, where the offense is not harsh and these offenders are kept in prison, the principle of human rights should be respected in compliance with international standards and norms. Article 10 of ICCPR states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.[23] Another set of international standards and norms that talk about prisoner's rights are Standard Minimum Rules for Treatment of Prisoners and Basic Principles for the Treatment of Prisoners. Both these international standards confirm that prisoners should not be deprived of their liberty which results in cutting from outside world[24] and they should have the basic right to take part in cultural activities and educational activities.(25) Vi: COMMUNITY SERVICE ORDER PRACTICED IN DIFFERENT COUNTRIES The initiative was taken by the Zimbabwe govt in 1992 where the senior official in the Ministry of Social Affairs undertook a study on the prison population found that 60% hitps:fatforwardjustice.comicommunity-servce-as-an-alterative-toimprisonment-systenin-riminalaw! 48‘sr2ar2020 Community Service as an Alternative to Imprisonment System in Criminal Law -FastForward Justice of the population were minor offenders.[26]Today, the country hasa community service scheme as an alternative to imprisonment. In Russia, corrective labour is the standard penalty given in the situation where it is considered that the accused should not be isolated from the society. The accused is paid a salary for the works done after adjusting a part of the amount towards establishment and maintenance cost etc. In South Africa, Community Service was adopted in to reduce the overcrowding of prisons. Community Service is practiced as correctional supervision where a certain category of offenders is kept outside of prison and is ordered to do community service.[27]In the USA & UK also, community service is practiced. India can adopt the practices from Zimbabwe & South Africa, the two African Countries whose community service schemes as a form of punishment have been. successfully implemented way back in the 1990s and continues to exist today. Vil: SUGGESTIONS AND CONCLUSION ‘One of the main objectives of punishing criminals is to reform them and make them ‘a human being in the society. Community service as an alternative to punishment is one of the best ways to reform the criminals as it creates a phycological impacton. their minds. One must remember that human nature is very complex and they do not respond to the situation. That's why they end up committing crimes. This situation has led to the innovation in the criminal justice system that keeping offenders in prison is not the solution but adopting alternatives to it and creating a new dimension where offenders are corrected and reformed. Although Indian Courts in some of the judgments have passed community service as a form of punishment but it's at the discretion of the Courts. There should beproper legislation that needs to be adopted in the country which distinguishes certain categories of offenders, Judges should study the character and the age of offender, types of offense (minor & major), circumstances in which the person has committed the crime. In my opinion, community service order should not be passed where the person is hardened criminal, rapist, terrorist. It is the objective of the State to reform criminals but a certain category of offenders cannot be expected to keep outside of prison and do community work. Law has to be passed which clearly explains in what circumstances the community service as a form of punishment should be awarded. These suggestions if incorporated will have a reduction of prisoners in jails and criminals will be reformed who are convicted for smaller punishment. It is pertinent. to develop community service as a form of punishment that shall give legal recognition and rationalize the modern punishment mechanism in Indian society. _ntps:astforwardustice.com/community-service-as-an-alterative-to-imprisonment-system-in-riminal-law! 58‘12872020 Community Service as an Ateratve to Imprisonment System in Criminal Law - FastForward Justice ["JPROF. N.V. PARANJAPE, CRIMINOLOGY & PENOLOGY WITH VICTIMOLOGY, pg. 9 (16 ed, 2014), [2)Correctional and Rehabilitative Techniques of Punishment, A need for legislative in India, (International Journal of Law and Legal Jurisprudence Studies, Volume 4 Issue 1), (21Supra note 1, at 304. [4]DS CHOPRA, JETHMALANI & CHOPRA'S THE INDIAN PENAL CODE, (Thomson ReutersLegal, 1"ed, 2017). [S]Supra Note1, at 467. [6] Rammurthy v State of Karnataka, (1997) 2 S.C.C. 642, (7IK.D. GAUR, TEXTBOOK ON INDIAN PENAL CODE, (6""ed. 2016). [SIA.LR. 1998 S.C. 3164, [9]Mohammad Giasuddin v, State of Andhra Pradesh, A.|.R. 197 S.C. 1926,(INDIA) [10] Prison Statistics India Report 2015, Published by National Crime Records Bureau, Ministry of Home Affairs, 2016. (ila. [12)Prisons in India: An overview of reforms and current situation, http://home.rajasthan.gov. in/content/dam/pdfi/StaffCorner/Training-Material/Useful- Presentations-And-Videos/Overview%200f%20prisons%20in%20India. pdf. ['31Keshabananda Borah, Jail administration in India: A review of Indian jail reform committee, (Volume 4; Issue 2; March 2018), [14]Donald T. Shanahan, The Administration of Justice: An introduction317-318 (Holbrook Press inc., Boston). Citedin S.P., Singh Makkar, —Correctional Objectives of Prison: A Critique on Justice Krishna lyer's Correctional Meditation 39 PULR 143, (1992). [/S]Law Commission of India, 156th Report on The Indian Penal CodeVol-l, 15- 41 April, 1992). [16] Supra note 7. [)7IALR, 2012 S.C. 3104, _ntps:astforwardustice.com/community-service-as-an-alterative-to-imprisonment-system-in-riminal-law! 68‘sr2ar2020 Community Service as an Alternative to Imprisonment System in Criminal Law -FastForward Justice [/SIALR, 2013 SC 670. [ SIMANU/SCOR/19904/2019, [20] United Nations Office On Drugs & Crime,https://www.unodc.org/unodc/en/about-unodc/index.html2ref=menutop. [211All Africa Conference, Kadoma Declaration on Community Service Orders in Africa, 1997 https://Awww. penalreform.org/resource/kadoma-declaration-community-service- orders-africa/. [22)Division for Operations UNODCPrison Reforms & Alternative to Imprisonment, Preparedby the Justice Section, (Feb 2011). [23]Art 10.1, international Covenant on Civil & Political Rights, 1966. [24] Rule 57, Standard Minimum Rules for the Treatment of Prisoners. [25] Art, 6, Basic Principles for the Treatment of Prisoners. [26]Stern, Vivien. "An Alternative Vision: Criminal Justice Developments in Non- Western Countries.” Social ustice, (vol. 28, no. 3 (85), 2001, pp. 88-104), [27] Prof. Shanta B. Singh, Development of the Prison System in South Africa, 2 RMLNUJ (2010) 1. RELATED RETHINKING OF THE NEED OF THE NUREMBERG TRIAL AND MAINSTREAMING THE VICTIMS CAPITAL PUNISHMENT IN INDIA ITS IMPACT IN DEVELOPING THE OF CRIME AND THE WITNESSES, In"VOLUME Hl, ISUUE INTERNATIONAL CRIMINAL Tot COURT AND LAW VOLUME I 1S In "VOLUME Il, ISUUE Admin _ntps:astorwardustice.com/community-service-as-analterative-o-imprisonment-system-in-criminal-law! 718sr29r2020 Community Service a8 an Alternative ta Imprisonment Systam in Criminal Law -FastForward Justice hitps:fatforwardjustice.comicommunity-servce-as-an-alterative-toimprisonment-systenin-riminalaw! 38