Baby thrown with the bathwater?

In May 2026, the Supreme Court of India took suo motu cognizance of bail orders passed by the Orissa High Court and trial court. The orders of the High Court and trial court while granting bail had directed about sixty accused persons, including six persons from the Dalit community and two from the Adivasi community to engage in community volunteering to clean police station premises. The Supreme Court called the said community service conditions “abhorrent” and “degrading.” Whether intervention might have been necessary or not, the implications do call for an objective assessment. Community service, as a penal instrument, has earned its place through decades of deliberation.

It was first recommended by the Law Commission in its 156th Report in 1997 and endorsed by the Malimath Committee in 2003 as an alternative to custodial sentencing. When the Bharatiya Nyaya Sanhita, 2023 finally codified it under Section 23 as a sentence, it marked the culmination of a long considered reform. Community service or mandatory volunteer work is a recognized post-conviction sentence. However, community service as a bail condition is a highly debated issue in the Indian legal fraternity. Previously, several other High Courts like Delhi, Gujarat, Madhya Pradesh, Karnataka etc., have prescribed community service.

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At best, the orders of the Orissa courts could be called an enthusiastic exercise of pro-community service provisions. However, to condemn the misapplication is not the same as vindicating the concept. The Supreme Court’s order, expansive and urgent as it was, risks doing exactly that and the consequences will be felt far and wide. There is a particular danger in judicial review bordering on overcorrection. When a higher court condemns a practice in sweeping constitutional language invoking caste, dignity, and Article 17 in a single breath, the subordinate courts do not parse the nuance. It is the headline that retains.

A Sessions Judge in a small town, reading a directive of the highest court of the land that community service conditions have been struck down as “abhorrent” and indicative of caste bias, does not pause for careful calibration. She reaches for the safest and risk-averse option of conventional sentencing and conditions. The consequences could be substantial over time and may trigger an institutional retreat from a reform-oriented justice system. This chilling effect of such an order by the apex Court of the land will travel downward through a hierarchical system.

What was once designed as a progressive departure from punitive measures will quietly become obsolete, not by legislative repeal but by judicial hesitation, one cautious order at a time. Undertrial populations will swell, families lose their breadwinners, and an overburdened justice system already groaning under crores of pending cases produces incarceration as its default output rather than its last resort. India holds over five lakh prisoners. According to the India Justice Report 2025, nearly 76 per cent of them are undertrials housed in facilities running at 120 per cent occupancy. Delhi’s prisons operate at 200 per cent. These are not statistics.

They are lives destroyed, families broken, livelihoods lost before a single verdict is pronounced. Community service was intended to promote rehabilitative justice, social betterment and solve the overcrowding crisis in detention facilities. For minors, first-time offenders, petty and low value offences, the choice between a custodial sentence and community service is not a difficult one. Yet the statute does not contemplate community service as a bail condition. The more pressing issue that arises, however, is not merely one of statutory authority but of whether the reading can be stretched to not treat that silence as a prohibition.

So long as the condition is consistent with the objective of granting bail, secures the presence of the accused and does not become punitive, community service directions may be a legitimate exercise of a court’s discretion without curtailing liberty through incarceration. The Supreme Court’s order directed every High Court to circulate its findings to every judicial officer in its jurisdiction which will have a significant impact.

However, the Hon’ble Bench might have done better than interpreting community service conditions or sentencing primarily through the lens of caste-coded abuse because by doing so it did not invalidate the lens but attached a stigma to the instrument itself. Trial courts, already cautious creatures of precedent, may now hesitate. The deterrent effect of the order may extend well beyond unlawful bail conditions into the legitimate sentencing space the BNS carefully carved out.

If the message received is that community service conditions invite constitutional scrutiny and caste aspersions, it might lead to a chilling effect, and trial courts will default to conventional sentences. Prisons will fill further. Community service as an alternative to incarceration has been standard practice across common law jurisdictions for decades. In cases of indigent accused persons, community service as a bail condition could be a viable alternative to conventional bail bonds and sureties which often makes liberty contingent on means.

Peer-reviewed research across 33 countries found that individuals given community sentences had two-year reconviction rates of 10 to 47 per cent that is consistently lower than the 18 to 55 per cent recorded for released prisoners. England and Wales introduced it through the Criminal Justice Act, 1972. In the United Kingdom, the economic and social costs of reoffending among released prisoners are estimated to be double those of individuals serving community sentences. New Zealand built restorative conferencing into its youth justice architecture in 1989.

South Africa institutionalised it as part of its post-apartheid correctional philosophy. In each context, the underlying principle is that reintegration serves society better than isolation, that community engagement heals what punitive measures can’t. These are documented results from jurisdictions that chose evidence over instinct. India, standing at precisely this crossroads, would do well to study the road already taken. India’s criminal justice system is at a rare inflection point.

The system entails instruments that, if properly used, could begin to reverse decades of punitive measures and address growing concerns of prison overcrowding through restorative justice. It is imperative to consider the larger realities and the cascading disruption within which such judicial discretions operate, like, overcrowding in prisons, poverty, loss of livelihood or sole earning member, children pulled out of school, and elderly dependents left without care.

Any discourse around community service, therefore, cannot remain confined to doctrinal propriety alone, it must also confront the social cost of incarceration and the human consequences of making liberty contingent upon means. The criminal justice system deserves a jurisprudence that develops and expands its scope thoughtfully against misuse, not one that allows casting a long shadow over a progressive reform.

(THE WRITER IS A JOURNALIST-TURNED LAWYER AND COLUMNIST.)