Community sentencing has been hailed as a modern alternative to imprisonment and death penalty for its reformative nature which is suited for offences that are not severe in nature. The need for Community sentencing in India has been debated often. To understand the requirement of a provision specifically for community sentencing one has to study about punishment, its purpose, its types, its evolution, and how it works in countries that already have provisions for it.
- Flogging: beating or whipping
- Branding: burning flesh with a hot iron
- Bilboes: an iron bar with sliding shackles used for confining a prisoner’s ankles.
- Maiming: wounding or injuring so as to damage a body part permanently
Punishment refers to the process by which the state inflicts damage on a person who has committed an offence or crime. The way of punishment and its purpose is a concept that has evolved over time and is something that is relative to the society and the needs/demands of the majority. There are different theories pertaining to punishment that are adopted in different nations accordingly.
Theories of Punishment
There are three main theories of punishment:
Retributive Theory :
“An eye for an eye” is the idea behind the retributive theory. It is the oldest theory of punishment. It believes in punishing the offender with the same severity as the offence committed by them. It focuses solely on punishing the offender and misses out on the need to prevent crime in the future. Another contention put forth by retributivists in support of this theory is that punishment allows offenders to get rid of their guilt and make themselves acceptable to society again. Saudi Arabia is an example of a country that follows Retributive justice.
The deterrent theory believes in the instilment of fear so as to “deter” or prevent an individual from committing a crime in the future. To achieve this goal, the prisoner is imprisoned for a period of time ensuring that within this stretch of time he is made to feel unpleasant so as to discourage him from repeating such behaviour.
Its advocates also believe that the purpose of criminal law is to present an example to other potential wrongdoers by punishing one offender. This theory has been criticised for sometimes causing the opposite effect and building resilience in criminals after enduring such punishments. The most extreme form of deterrence is the death penalty which has also been criticised for not being proven to reduce crime rates.
The reformative theory is a more modernistic approach towards punishment and discards the ideas incorporated in the deterrent and retributive theory. According to this theory, the criminal is still a human being capable of change and should be given a chance to improve himself, hence the name of the theory is such. The arguments against this theory are many. It focuses on the incentives for the commission of crime rather than prevention. What causes a person to commit it a crime is not something that can be narrowed down to one category such as the social environment. Hence the idea that providing a surrounding to reform a criminal may work on some but not all.
Punishment in India
Under Ancient Hindu Law
The concept of punishment has been accepted in the Dharmashastra. The power to punish an offender was vested in the King.
Following were the forms of punishment prevalent in ancient India
Capital Punishment is a practice where a person is legally put to death as a punishment for crime. It included different forms of execution such as :
A gruesome method in which people are made to pelt stones at the offender till he dies.
In this type of punishment, the offender was made immobile by locking his head and hands in an iron frame publicly and was whipped, stoned, shot to death.
Construct into a wall:
As the name suggests the offender was constructed into a wall
Throw under the leg of the elephant:
In this punishment the offender was thrown under the legs of an intoxicated elephant.
Corporeal Punishment refers to the inflicting of pain on the offender by way of flogging, mutilation, branding, bilboes, Imprisonment.
Social Punishment is a practice that restrains an offender from being able to contact the aggrieved again. Any person that tries to help him shall also be awarded punishment for the same. Social Punishment includes:
Banishing means to expel someone. The offender is forced to go somewhere far to exclude them from society.
This was a practice wherein the people would not engage in any contact with the offender, not even the objects he touches. Basically, it was a form of untouchability as a punishment.
This type of punishment was awarded for smaller offences in the form of fines, compensation to the victim.
Under Muslim Law
Qisas refers to retaliation, this punishment was awarded for crimes against a person also called jinayat and included crimes such as homicide, maiming
This was compensation given to the family of the murdered victim and was usually given as an alternative to Qisas.
These were fixed penalties that could not be altered by discretion and were imposed for offences such as adultery, false accusation, and theft.
Siyasa and Tazir:
Siyasa and Tazir refer to discretionary punishment wherein the judge has the discretion to a degree of punishment to be awarded to the offender.
In Modern India
The modern Indian Criminal Justice System follows the deterrent theory and reformative theory with an emphasis on the latter.
Section 53[i] of the Indian Penal Code includes the forms of punishments that can be awarded:
- Death Sentence( Deterrent theory)
Death Penalty is the most severe punishment and is awarded in the rarest of the rarest cases. It is prescribed under Sections 121, 132, 194, 302, 305, second part of 307 and 396
- Imprisonment for life (Deterrent theory)
Imprisonment for life includes rigorous and simple imprisonment. Imprisonment is the most common mode of punishment.
- Forfeiture of property and Fine (Reformative theory )
Fines and other monetary penalties are awarded for minor offences
Community sentencing refers to punishments other than the ones that fall under the deterrent and retributive category. It falls under the reformative category of punishment wherein a person is made to do community services such as cleaning, gardening, painting, teaching, etc.
Few Countries where Community Sentencing is Practiced
In Australia Community servicing orders last up to 5 years with work hours ranging from forty to seven hundred and fifty hours. The offenders are first assessed to check if they are suitable for community sentencing and the offenders are supervised while carrying out their sentences.
In Spain under article 49 of the Criminal code, 1995, the offender performs specific activities of public utility which may be related to the offence committed, for a maximum of 8 hours. The work being provided under community service must not be against the dignity of the offender or for economic interests.
Community sentencing was introduced into Uganda by the Community Service Act 2000. According to this Act, the offender is assessed for his eligibility for community service and is then awarded unpaid work of a maximum of 6 months.
Community Sentencing in India
Community sentencing as of today does not exist in India. There are no specific provisions for It except in the Juvenile Justice Act, 2015 under section 18(1)(c)[ii] which can order a child to perform community service under the supervision of an organisation/institution, specified person. Community service can be awarded at the discretionary power of the judiciary. There have been attempts in the past to implement alternate methods of punishment such as in the Indian Penal Code (Amendment) Bill 1978 certain other types of punishments were proposed to be added in section 53 which included Community Service, disqualification from holding office, order for payment of compensation and public censure. Clause 27 of the same bill wanted to insert a new section 74A which would exclusively deal with community service.
Pre-existing Punishments other than Imprisonment and Death Penalty
Probation is the release of an offender into society for a period of time under supervision. Under the Probation of offenders Act, 1958, An offender, usually of the kind that has committed an offence punishable under sections 379,380, 381, 404 or an offence punishable with imprisonment for not more than 2 years or with fine or both under the IPC for the first time shall have his character assessed and accordingly it shall be decided if he is eligible for probation. Under section 6 of the Act if offenders under the age of 21 have not committed a crime that is punishable with life imprisonment such offenders must be released on admonition or probation unless there are reasons otherwise.
Parole refers to the conditional release of a person before the completion of his sentence. It allows the offender to tend to his personal problems like family, harvesting, etc.
Commutation of sentence
Under Section 72 and 161 the President and Governor have been vested with the power to commute the sentence of an offender to that of a less severe kind.
Open prisons are prisons with minimum security and operate on the self-discipline of the prisoner. Prisoners who are serving life imprisonment are shifted to open prisons based on their good conduct. There are currently 63 open prisons in India
The objective of Community sentencing is to instill a sense of responsibility towards society in the minds of the offenders and to help them reform themselves and prevent them from getting socially alienated which many times take place after the end of a severe sentence leading to many habitual offenders. Although there are alternate punishments to life imprisonment and death penalty they are not as effectively carried out, for example, there are not enough sufficiently open prisons functioning in India. There have however been instances where the judiciary has ordered community service via its discretionary power in cases where the person is usually a first-time offender. However, it is recommended that community sentencing should make it India via an actual provision to ensure that all cases deserving of such a sentence can reap benefit from it.
Should Capital punishment be done away with?
There are many arguments against death penalty stating its failure in deterring crime. However one must understand that the degree of crime committed by some people is such that putting them behind bars is insufficient and no amount of reformative practices can change them hence Capital punishment should be retained and be restricted to offenses that are of grave nature.
Should Community sentencing replace other forms of sentencing?
Just how each crime varies from another crime and also has variations within the same type of crime, so does punishment. It is not feasible to replace an existing punishment with another unless the former has been proved to have no impact. Thus, community sentencing should be an alternate form of sentencing rather than replacing other punishments altogether.
How does Community sentencing benefit the victim?
Community sentencing helps reform the offender and makes them gain a better understanding of the impact their actions have on victims. This helps in reducing the number of victims in society. To ensure the victim is restored to the previous state before the offence took place, it must be ensured that the Offender is made to pay back the damages incurred by the victim.
Why is it necessary to make Community sentencing a provision when it is already awardable by the discretion of the judiciary?
Having something made into a provision makes it easier to categorise offences deserving of such sentencing and develop the infrastructure /personnel required for such sentences to be carried out on a large scale. This also speeds up the time taken by the judiciary in deciding the punishment as compared to exercising their discretion. Hence it is necessary to make community sentencing a provision.