Title - Sentenced to Serve: Evolution, Scope and Gaps of Community Service under the Bharatiya Nyaya Sanhita, 2023.

By Khushi Pandey

The student of BA.LLB IX semester, of manu law college, chiutaha road nichlaul Maharajganj Uttar Pradesh 

 A man steals a small item. The old law said: pay a fine or go to jail. The new law says: serve the community. He is still guilty, but he walks out to serve, not to suffer. Is this justice? Read on to know….   

Table of Contents

 1 Introduction

  2 Conceptual Framework: Statutory Meaning of Community Service

  3 Roots of the Idea: Origin and Global Spread

 4 The Position before the Bharatiya Nyaya Sanhita

 5 Statutory Architecture under the Bharatiya Nyaya Sanhita, 2023

 6 Objectives, Working and Offences Covered

7 Theoretical Foundation: Theories of Punishment

8 Comparative Study: Community Sentencing across Jurisdictions

 9 Community Service in Action:Cases after the BNS

 10 Merits, Gaps and the Way Forward

 11 Conclusion

Abstract 

The Bharatiya Nyaya Sanhita, 2023 makes community service a punishment in India's general penal law for the first time. This article traces the idea from early reformative thought and the Wootton Report of 1970 to Indian courts, which earlier used it only through bail and quashing orders, and finally to six offences in the Sanhita. It compares practices abroad and tests the sentence against reformative and restorative theories. The article argues that the provision is welcome, but the law gives no clear description of the work, no fixed hours, no clear supervision procedure and unclear limits on default. It ends with practical suggestions to make the sentence fair and consistent.

Keywords: Community Service, Bharatiya Nyaya Sanhita, Reformative Justice, Alternative Sentencing, Sentencing Guidelines

INTRODUCTION 

For over a century and a half, section 53 of the Indian Penal Code, 1860 gave courts a short list of punishments: death, life imprisonment, imprisonment, forfeiture of property and fine. A petty offender faced a fine or imprisonment. The Bharatiya Nyaya Sanhita, 2023 changes this. Section 4(f) adds community service, defined in the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 as unpaid work, ordered by the court, that benefits the community. Earlier, courts used the idea only indirectly, through bail conditions and the Juvenile Justice Act, 2015. This article traces its evolution, examines its scope under the Sanhita and identifies the gaps that remain, using the doctrinal method.

3. Roots of the Idea: Origin and Global Spread

Ancient Indian Notions of Amends. Indian legal thought has long known the idea that a wrongdoer should make amends and be corrected, and not merely suffer. The Dharmashastra tradition speaks of prayashchitta, or penance, as a means of correcting the offender. Texts such as the Parashara Smriti, as noted by P. V. Kane mentions serving cows as a way of removing sin. Prayashchitta was a moral and religious duty, not a sentence passed by a court. It shows a shared spirit of reform rather than a direct ancestor of the modern sentence.

Reform Thought in Europe. In the mid-sixteenth century, the House of Correction at Bridewell, London, attempted reform through work and training. In 1764, Cesare Beccaria argued that punishment must be fair, proportionate and humane. In 1777, John Howard's The State of the Prisons in England and Wales exposed the harsh condition of prisons and pressed for change.

The First Experiments.  Formal community service programmes in the United States are traced to Alameda County, California, in 1966, where municipal court judges ordered unpaid work for traffic offenders in place of conventional penalties.

The Wootton Report and the English Statute. In 1970, the Advisory Council on the Penal System, in its report Non-Custodial and Semi-Custodial Penalties, recommended community service as an alternative to custody. The Criminal Justice Act 1972 introduced community service orders, which were re-enacted in the Powers of Criminal Courts Act 1973. The scheme began in six pilot areas and was later extended.

Spread across the World. After the English pilot, other common law jurisdictions studied the model and adopted similar schemes. Part 8 examines how these systems work today.

4. The Position before the Bharatiya Nyaya Sanhita

Before 2023, neither the Indian Penal Code, 1860 nor the Code of Criminal Procedure, 1973 recognised community service as a punishment. The idea was discussed more than once, but it never became law.

Reform Proposals. The Indian Penal Code (Amendment) Bill, 1978 proposed community service for offences punishable with imprisonment of less than three years, with work hours ranging from forty to one thousand. The Bill was not enacted. In 1997, the 156th Report of the Law Commission of India recommended amending section 53 of the IPC to include community service as a punishment. This too was not adopted. The Malimath Committee on criminal justice reform later made a similar recommendation, which also did not take effect.

The Juvenile Justice Act, 2015. The only statutory mention of community service before the BNS was section 18(1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015. It applies only to children in conflict with law and not to adult offenders.

Judicial Innovation without Statutory Backing. In the absence of a statute, some High Courts used the idea indirectly. In Parvez Jilani Shaikh v. State of Maharashtra (2015), the Bombay High Court directed the accused to render service at the B.A.R.C. Hospital while quashing proceedings after a settlement between the parties. In Sunita Gandharva v. State of Madhya Pradesh (2020), the Madhya Pradesh High Court held that the words "any other condition in the interest of justice" in section 437(3) of the CrPC were wide enough to include community service as a bail condition, provided it was offered voluntarily and suited the capacity and willingness of the accused. Other orders of the same High Court required the installation of a water harvesting system, service at a primary health centre and the planting of saplings. The Delhi High Court, using its inherent powers under section 482 of the CrPC, has directed offenders to perform service at a Gurudwara and, in Manoj Kumar v. State (NCT of Delhi) (2022), at a hospital on weekends.

The Supreme Court's Note of Caution. The Supreme Court did not accept every such condition. In Aparna Bhat v. State of Madhya Pradesh (2021), it set aside a bail condition requiring the accused to have a rakhi tied by the complainant. The Court observed that, in cases of sexual offences, conditions such as community service, an apology or any contact with the survivor, imposed in the name of reform, can trivialise the harm and expose the survivor to further trauma. Earlier, in Munish Bhasin v. State (Government of NCT of Delhi) (2009), the Court had held that courts cannot impose bail conditions beyond those the statute permits.

The result was a patchwork. Community service depended on the discretion of individual judges, had no uniform rules and was linked to bail or settlement rather than to a sentence after conviction. This gap is what the BNS sought to fill, as the next part shows.

5. Statutory Architecture under the Bharatiya Nyaya Sanhita, 2023

The Principal Provision. Section 4(f) of the BNS lists community service as the sixth punishment, after death, imprisonment for life, imprisonment, forfeiture of property and fine. Its meaning is supplied by the Explanation to section 23 of the BNSS, through section 2(39) of the BNS, as discussed in Part 2.

The Six Offences. Parliament has not made community service a general option for every offence. It has attached it to six provisions, in each case as one of the alternatives open to the court:

Section 202 (public servant unlawfully engaging in trade): simple imprisonment up to one year, or fine, or both, or community service.

Section 209 (non-appearance in response to a proclamation under section 84(1) of the BNSS): imprisonment up to three years, or fine, or both, or community service.

Section 226 (attempt to commit suicide to compel or restrain a public servant from discharging official duty): simple imprisonment up to one year, or fine, or both, or community service.

Section 303(2), proviso (theft of property worth less than five thousand rupees): community service for a first-time convict who returns or restores the value of the property.

Section 355 (misconduct in public by a drunken person): simple imprisonment up to twenty-four hours, or fine up to one thousand rupees, or both, or community service.

Section 356(2) (defamation): simple imprisonment up to two years, or fine, or both, or community service.

A common thread runs through these provisions. All involve minor or non-violent conduct, and the maximum imprisonment is short.

Supporting Provisions. Section 23 of the BNSS gives first-class Magistrates the power to award community service along with imprisonment up to three years or fine up to fifty thousand rupees, and second-class Magistrates the same power with imprisonment up to one year or fine up to ten thousand rupees.

Section 8 of the BNS deals with default. It allows the court to direct imprisonment if a convict fails to perform community service. Where the offence is punishable with fine or community service, that imprisonment must be simple and cannot exceed two months where the fine does not exceed five thousand rupees, four months where it does not exceed ten thousand rupees, and one year in any other case. These limits are tied to the amount of fine, which leaves the cap unclear where only community service is ordered. The Sanhita also does not say how such imprisonment ends if the service is performed later. Part 10 returns to these gaps.

6. Objectives, Working and Offences Covered

Objectives. Community service pursues four aims. First, it holds the offender accountable without confining him: he remains guilty and repays society through work. Second, it supports reformation and reintegration, because it spares a petty offender the stigma of prison and the company of hardened offenders. Third, it eases pressure on prisons. At the end of 2022, 5,73,220 prisoners were lodged in Indian jails against a capacity of 4,36,266, an occupancy rate of 131.4 per cent according to the National Crime Records Bureau. Fourth, it offers a punishment proportionate to minor wrongs.

Working. The sentence is passed by the court after conviction, for an offence where the Sanhita lists community service as an option. Under section 23 of the BNSS, Magistrates of the first and second class may award it within their sentencing limits. The court chooses the work, but the Sanhita itself says nothing about the kind of work, the hours or the supervising agency. If the convict fails to perform the service, section 8 of the BNS allows simple imprisonment in default.

Illustrations.

Illustration A. A, a first-time offender, steals a mobile phone worth three thousand rupees and returns it. Under the provision to section 303(2) of the BNS, the court may order community service, for example service at a government hospital for a period fixed by the court.

Illustration B. B, in a state of intoxication, abuses passers-by in a public place and causes annoyance. Under section 355 of the BNS, the Magistrate may order community service, such as cleaning work in a public park, instead of imprisonment of up to twenty-four hours or a fine. If B refuses to perform it, imprisonment in default may follow under section 8.

Offences Suitable for Community Service. The six offences already covered are listed in Part 5. The scheme can sensibly be extended to offences that are minor, carry short sentences and cause no serious injury. Examples are section 285 (danger or obstruction in a public way, punishable with fine up to five thousand rupees), section 296 (obscene acts and songs in public, up to three months or fine up to one thousand rupees, or both) and section 194(2) (affray, up to one month or fine up to one thousand rupees, or both, for minor public brawls without serious injury). Commentators have also suggested extending the idea to drunken and dangerous driving under the Motor Vehicles Act, 1988, to consumption of drugs under section 27 of the NDPS Act, 1985, and to the Probation of Offenders Act, 1958.Offences

7. Theoretical Foundation: Theories of Punishment

Punishment has traditionally been justified on several grounds: giving the wrongdoer what he deserves, discouraging others, protecting society and reforming the offender. Modern sentencing usually combines more than one of these purposes. An old maxim, often traced to Cicero, still guides criminal justice: the punishment should fit the crime.

Community service is not built on harshness. Since it neither confines the offender nor causes severe suffering, it has only a limited link with retribution and deterrence. Its true home is the reformative theory, which treats the offender as a person who can be corrected. This thinking grew stronger through Cesare Beccaria, who argued for fair and humane punishment, and John Howard, who exposed the cruel conditions of prisons.

It also reflects restorative justice, whose aim is to set right the harm caused by a crime and to help the offender, the victim and the community live together again. Service to the community allows the offender to face his wrong in a constructive way. Some Indian commentators also link this outlook to the Gandhian preference for reform over revenge.

Finally, the sentence respects proportionality. It suits first-time offenders of petty crimes, because it matches the gravity of the wrong and keeps them away from hardened criminals. Community service therefore rests mainly on reformative and restorative thought, supported by proportionality.

8. Comparative Study: Community Sentencing across Jurisdictions

Many legal systems already use non-custodial, community-based sentences, though their forms differ.

England and Wales. A court may pass a community sentence instead of prison, and it may include unpaid work in the local community, such as removing graffiti. This is called Community Payback. It is available for offences such as damage to property, theft and assault, particularly where the court believes the offender is more likely to stop offending outside prison, where it is a first offence, or where a mental health condition affects behaviour. The Criminal Justice Act 1972 first introduced community service orders, the Criminal Justice Act 2003 merged earlier community sentences into a single community order, and the Sentencing Act 2020 now governs the subject. Since the Crime and Courts Act 2013, courts must include a punitive element. The rules in Scotland and Northern Ireland differ.

United States. Federal law lets judges order unpaid community service as a condition of probation. Formal programmes began in Alameda County, California, in 1966. State practice varies. In North Carolina, for example, performing community service when required is among the conditions that accompany intermediate punishment.

Russia. The Criminal Code of 1996 provides compulsory works (article 49), which are unpaid, socially useful work done in spare time at places fixed with local bodies. It also provides corrective labour (article 50), where the offender keeps working and a share of earnings, between five and twenty per cent, goes to the State, and forced labour (article 53.1).

China. The Criminal Law (articles 38 and 76) places certain offenders under community correction instead of prison, and a separate Community Corrections Law governs the system. The model is built on supervision.

Japan. Japan does not treat community service as a separate sentence. Its Penal Code (articles 25 to 26-3) allows a prison term of up to three years, or a fine of up to 500,000 yen, to be suspended for one to five years, with the offender living in society. The Offenders Rehabilitation Act can attach special conditions such as social welfare work, and trained citizen volunteers known as hogoshi help supervise offenders. For young offenders, article 24 of the Juvenile Act allows protective measures that often include community work.

Other Systems. In Australia, magistrates' courts can order community service for less serious offences. In Canada, youth justice law allows it for young offenders. Matching the work to the offence has worked well in places such as Spain and Singapore.

In every one of these systems, the sentence is tied to a super-panevision and probation structure. The BNS creates the sentence but leaves much of that structure to be built.

9. Community Service in Action: Cases after the BNS

Part 4 has already described the pre-BNS practice. Since the Sanhita came into force, the first reported orders came from trial courts in Jammu and Kashmir.

On 23 January 2025, courts in Jammu and Katra delivered what were reported as the first community service convictions under the BNS. In Jammu, an accused convicted under section 355 was ordered to serve for one week at a Community Health Centre, and another to clean and maintain a public park for one week, from 9 am to 12 noon daily. In Katra, an offender was ordered to clean a park managed by the Katra Development Authority for three consecutive days, and the authority's chief executive officer was asked to oversee compliance. On 5 March 2025, a Magistrate at Kralpora in Kupwara convicted two persons under section 355 and directed them to clean a public place such as a hospital for two days, under the supervision of the Station House Officer.

Three points stand out. All these early orders were under section 355. The periods of service were short. And the courts themselves fixed the nature of the work, its duration and the supervising authority, since the statute is silent.

10. Merits, Gaps and the Way Forward

Merits.

• Community service reduces pressure on overcrowded prisons, where occupancy was about 130 per cent in 2021.
• It spares petty and first-time offenders from the stigma of prison and from contact with hardened criminals.
• It gives the community useful work, and it helps offenders build skills and a sense of responsibility.
• It costs the State less, as the Rajasthan High Court has observed in a different context, that a welfare State cannot afford a large non-productive prison population.

Gaps 

• The Sanhita does not define the kind of work, the hours or the supervising authority, and gives no guidance on when community service is preferable to fine or imprisonment.
• The discretion of courts may lead to inconsistent orders.
• States have started issuing their own guidelines, which creates a patchwork across the country.
• The rules on default are unclear, because the limits in section 8 are tied to the amount of fine.
• Stigma, limited local facilities, funding, staffing and weak monitoring can reduce effectiveness.

Way Forward.

• Define the term and fix the range of hours, the nature of work and the time for completion in the statute.
• Create a uniform national procedure for supervision through probation officers, ideally under an independent agency.
• Match the work to the offence and to the offender's ability.
• Explain clearly what happens on breach or default.
• Consider extending the sentence to other short-sentence offences, such as public obstruction and obscene acts in public, and to offences under the Motor Vehicles Act, the NDPS Act and the Probation of Offenders Act, as commentators suggest.
• Train judicial officers, spread public awareness to reduce stigma and review results regularly

11. Conclusion

The Bharatiya Nyaya Sanhita, 2023 has opened the door to a punishment that keeps the offender in society and asks him to repay it through work. The idea has a long history, from early reformative thought to the Wootton Report and the  English statute, and Indian courts had already used it without statutory backing. Its coverage under the Sanhita is narrow, and its early use has been cautious.

Yet the provision is incomplete. The law leaves the kind of work, its duration and its supervision largely to courts and, increasingly, to the States. A clear national framework, with defined work, fixed hours, proper supervision and a fair procedure for default, would turn a promising idea into a sentence that is fair, consistent and meaningful.