Gently does it: In the West, it is common for celebrities such as supermodel Naomi Campbell (in picture) to get unpaid community service as punishment for minor offences

Hauled up for sexually harassing a woman in a bus, the man would have thought that he’d have to pay a fine, or perhaps face a jail term. But a lower court in Delhi, where the case was being tried, had something else in mind for him. Last month, the magistrate asked him to write a 25-page essay on eve-teasing and harassment. He was asked to make 500 copies of the essay and distribute them outside schools and colleges.

Innovative forms of punishment have been making headlines in recent times. A judge sentenced a group of lawless bikers to community service at a gurudwara in Delhi; another asked a legislator, accused of trespassing, to render his services in an AIDS awareness camp and organise a cleanliness drive.

A year ago, there was an uproar over a judgement in Delhi in which a youngster involved in a case of road rage was asked by the lower court to manage traffic at a busy intersection. Opinion was starkly divided on the judgement — some lauded what they said was a novel way to introduce the young boy to the travails of a traffic cop, and learn traffic rules. Others argued that a fine and imprisonment were the appropriate method of punishment for such behaviour.

Community service as a form of punishment is a popular method of retribution in Western countries. Last month, supermodel Naomi Campbell was ordered to undergo 200 hours of unpaid community service after she pleaded guilty to assaulting two police officers in April. Campbell had once been asked to mop the floors of a public building in New York for hitting her maid. But in India, the trend is new, and has triggered a debate.

“In India, we do not have any legal provision for such punishments. But community service is a positive way of punishment and should gain further momentum,” asserts Balendu (he only uses his first name), an advocate of the Delhi High Court.

Section 53 of the Indian Penal Code clearly defines different forms of punishment that fall under five categories — death, imprisonment for life, simple or rigorous imprisonment, forfeiture of property and fine. “If we look at the IPC, there are only five ways of punishment. But the Probation of Offenders Act and the Code of Criminal Procedure (CrPC) have provisions under which a judge can admonish an offender keeping in mind the nature of offence,” says Neeraj Sharma, advocate, Tis Hazari Court, Delhi.

The CrPC’s section 360 states that a person can be released on probation under certain circumstances. He or she should not be under 21 years of age and should have been convicted of an offence with a fine, or with imprisonment for a term of seven years or less. Or a person can be released under probation if the offender is under 21 or a woman, is convicted of an offence that is not punishable with death or imprisonment for life and has no previous conviction.

“A jail sentence runs the risk of turning offenders into hardened criminals. However, the magistrate needs to be sure about the nature of offence, and whether it is a trivial matter or not,” says Balendu.

With Indian jails mostly overcrowded, the legal fraternity has often expressed the need to explore alternative forms of punishment. However, the raging point of contention is the nature of offences that deserve different kinds of punishment. “There is no unanimity on this issue. It will still take a long time before the judges can make such forms of punishments common,” says former super cop and social activist Kiran Bedi. She calls for reforms in the judicial system recognising alternative forms of punishment.

This, some experts say, will ensure that there are other forms of social control (apart from prisons) that can be utilised to check offenders. Some hold that if executed in an appropriate manner, punishment in the form of community service can benefit society. “The offender is spared the negative influences of prison and can maintain a social life during his rehabilitative process,” says Supreme Court lawyer Kirti Singh.

Under the Probation of Offenders Act, an accused can be acquitted after admonition if he or she has committed an offence for the first time and if the offence does not carry a sentence of more than two years. The provision under the CrPC and the Act are similar, as they share a common intent that punishment ought not to lead merely to the prevention of offences but also the offender’s reformation.

“Reformation should be the first choice of punishment. If it doesn’t work then one has to look at deterrence,” says Arvind Narrain of the Alternative Law Forum, a Bangalore organisation formed by a group of lawyers to encourage an alternative practice of law.

But the problem is that alternative punishments can be interpreted differently. The law will not be the same for every offender, for some punishments may be harsh while some will be described as lenient.

A case in point is a recent ruling in Delhi. The driver of a BMW car and his friends were taken to court in May for beating up a rickshaw puller in a fit of rage. The district court released them on probation on condition that they would help the rickshaw puller’s children in their education, besides paying a compensation of Rs 10,000 to the victim. Some legal experts lauded the good intention of the judge, while others considered the fine “too little” and the punishment “too lenient”.

“We need to think progressively of ways in which criminals can be reformed. The judiciary has to lay down the guidelines and it cannot be left at the judge’s discretion alone,” says Kirti Singh.

What happens if such forms of punishments are challenged? There was an instance when the Delhi Police appealed against a community service sentence passed on a young man for drunken driving by a trial court and the verdict was stayed. “Usually both the parties (the accused and the victim) do not have any objections to probation as the case gets resolved at the earliest in a novel fashion,” says Neeraj Sharma. “However, the State can challenge a court’s order.”

But a few do find the idea of an accused escaping traditional forms of punishment an extremely worrying trend. “Since there are no strict guidelines on these forms of punishment, they can backfire. Punishment where the offender is let off easily will not discourage crime,” says Delhi-based lawyer activist Ashok Aggrawal.

Perhaps that was a reason the unprecedented order in the eve-teasing case in Delhi was later retracted. “The magistrate revoked the order as arbitration resolved the case,” says Anil Dudeja, station house officer, Chittaranjan Park, the south Delhi area where the crime occurred. Clearly, it will be a while before novel forms of punishment become common.