Community service introduced into Indian criminal law for the first time by the Bharatiya Nyaya Sanhita, 2023 (“BNS”) was handed no such channel and the absence shows up twice once when a court decides what the punishment will require and again when a convict fails to carry it out. Read together, Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) and Section 8 of the BNS leave this sentence to run loose from the day it is imposed to the day it collapses with nothing resembling reins at either end.

No Content Assigned to the Punishment

The Explanation to Section 23 BNSS is the only statutory description of what community service is work a court may order a convict to perform as punishment that benefits the community for which the convict receives no remuneration. That sentence explains why the punishment exists and what it costs the convict. It says nothing about what the punishment actually requires. There is no schedule of permissible tasks, no floor or ceiling on duration, no designated supervising body, and no mechanism to certify that whatever was ordered in fact benefited anyone.

The BNS attaches this sentence to six offences. Five of them, unlawful trade by a public servant under Section 202, non-appearance under Section 209, attempting suicide to compel or restrain the exercise of lawful power under Section 226, public misconduct while drunk under Section 355, and defamation under Section 356(2), use the word “or”, placing community service alongside imprisonment and fine as one option among several. The sixth, the proviso to Section 303(2), governing theft of property worth less than five thousand rupees by a first-time offender who has returned the property or its value, drops the “or” altogether the offender “shall… be punished with community service.” Here the sentence is not chosen it is mandated.

Courts have filled this silence in strikingly divergent ways. While quashing a case after a settlement between the parties, the Delhi High Court directed two men accused of assaulting and outraging a woman's modesty to do a month of community service at Gurudwara Rakab Ganj Sahib. In a separate settled case, the same court directed a family to plant fifty saplings to secure quashing of the FIR, while elsewhere it ordered two police personnel who had clashed with a lawyer to plant a hundred trees. The Goa Bench of the Bombay High Court, setting aside a college's debarment of two students accused of stealing snacks and stationery during a campus event, directed them to serve two hours a day for two months at an old age home instead. None of these orders is indefensible on its own facts none can be reconciled with the others by reference to the statute, because the statute supplies no organising principle connecting offence to task.

This is close to the condition the Supreme Court condemned in State of West Bengal v. Anwar Ali Sarkar1952, where a provision letting the executive select cases for a harsher procedure without any legislative standard to guide the selection was struck down because Article 14 forbids not only overt discrimination but discretion so unanchored that arbitrary outcomes become ordinary rather than exceptional. Maneka Gandhi v. Union of India 1978 later read into Article 14 a broader requirement that state action touching personal liberty be non-arbitrary as a matter of course. That Indian sentencing discretion exercised without articulated standards is disparity dressed as individualised judgment, and that such disparity itself sits in tension with Articles 14 and 21.¹ Community service is a benefit-conferring sentence rather than a liberty-restricting classification, so it does not sit on identical constitutional footing to the scheme in Anwar Ali Sarkar. But the anxiety animating that case, that a provision offering no criteria has delegated law-making to whoever happens to apply it, describes Section 23 with uncomfortable precision.

No Consequence Defined for Its Failure

Section 8 of the BNS titled “Amount of fine, liability in default of payment of fine, etc.,” is the provision meant to govern what happens when a sentence goes unperformed. It consolidates Sections 63 to 70 of the Indian Penal Code, 1860 into a single provision, with community service inserted afterward, and the seam is visible. Subsection (4) allows a court to imprison a defaulting convict “of any description to which the offender might have been sentenced for the offence”, covering default in a fine or in community service alike. Subsection (5) then fixes how long that imprisonment may run, but entirely by reference to a fine two months if it does not exceed five thousand rupees four months if it does not exceed ten thousand and up to a year otherwise. Subsection (6) allows the imprisonment to end, but again only where a fine is “paid or levied by process of law”, or proportionately once part of it is recovered. The words “community service” do not appear in subsection (6) at all.

This system works on the assumption of a convict who owes a specific sum and can wipe out an equivalent period of jail time by paying it off. In the case of a convict who has been given community service, there is no such sum owed since community service is chosen instead of the imposition of the fine. “The amount of the fine” in subsection (5) is often simply non-existent for comparison. The problem arises especially with the five cases where community service is one of the many options available, and even more so when it comes to Section 303(2), where there is no fine in the working proviso at all since the underlying idea of that proviso is that the convict has already compensated the complainant. A Magistrate facing a defaulting convict under Section 303(2) must apply a formula keyed to a fine that was never fixed, never sought, and had no occasion to exist, and subsection (6) offers such a convict no textual route back out of imprisonment at all.

Where the Two Failures Meet

The two problems are not just close together the first one cause the second one. It is Section 8 which is expected to monitor situations where community service has not been done, yet Section 23 does not specify the nature of “doing.” A court ordering that fifty saplings be planted does not have any statutory yardstick to measure whether being late amounts to partial performance, planting forty is enough compliance and who is supposed to make such decisions. A default section cannot reasonably delineate the difference between compliance and noncompliance when there is no clear-cut specification of the duty to start with. Section 8 takes up a problem generated by Section 23 and magnifies it a penalty without a clear definition is being enforced by a process designed for an entirely different penalty.

What a Coherent Provision Would Require

The proposed solution is one which requires no abandonment of judicial discretion either, merely providing each with what it currently lacks. For Section 23 there must be provided some statement of connection between the category of offence and the category of services allowed, along with a defined supervising certifying body either a District Legal Services Authority or appointed probation officer, so as to make “performance” verifiable, not merely claimed. For Section 8, there must be provided a scale of durations for community service which does not go through the duration of a fine which may never have been set, and a release clause whereby imprisonment can end or be reduced proportionately by virtue of the convict completing or having nearly completed his/her service, like that already provided for defaulting fines. Neither requires any modification to the structure of either Sanhita practice directions could easily provide as much structure as Bachan Singh once provided for capital punishment without waiting for legislative intervention. Until such time however community service continues to be what it is a sentence without a bridle made to answer for its failure in a mechanism that was never meant to accommodate it.

Reference

1. Mrinal Satish, Discretion, Discrimination, and the Rule of Law: Reforming Rape Sentencing in India 161–86 (2017).

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