Law & Policy
The Sixth Punishment: What the Sanhita Leaves Out of Community Service
17 September 2026 · 13 min read
Section 53 of the Indian Penal Code listed five punishments — death, imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, and fine. Section 4 of the Bharatiya Nyaya Sanhita, 2023 reproduces that list in the same order, in the same terms, and adds a sixth: "(f) Community Service."
It is the only addition. The rest of Chapter II of the Sanhita is Chapter III of the Code, renumbered and compressed — commutation, fractions of terms, the rigorous-or-simple direction, the limit where an offence is made up of several offences, solitary confinement, enhanced punishment after previous conviction. And in the other direction the list has only ever shrunk: penal servitude was omitted from Section 53 in 1949, and transportation was replaced by imprisonment for life in 1955. Clause (f) is the first item added to the list of punishments in the general penal law since the Code was enacted.
The Statement of Objects and Reasons records the intention in one sentence: "It is proposed to provide first time community service as one of the punishments for petty offences."
What follows is not an argument about whether that was a good idea. It is an account of what the two Sanhitas say about the punishment they introduced, and of how much of the apparatus that surrounds every other entry in Section 4 was written for it.
Where the definition is, and what it is attached to
The Bharatiya Nyaya Sanhita does not define community service. Section 2 runs to thirty-nine clauses; community service is not among the expressions they define. Section 4 names it and stops.
The definition is in the other Sanhita. Section 23 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is headed "Sentences which Magistrates may pass". Sub-section (2) gives a Magistrate of the first class power to pass a sentence of imprisonment up to three years, or fine up to fifty thousand rupees, "or of both, or of community service". Sub-section (3) does the same for a Magistrate of the second class at one year and ten thousand rupees. Then:
Explanation.—"Community service" shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.
That is the whole of it. The sixth punishment in the substantive code is defined by an Explanation to a jurisdictional provision in the procedural one — a section whose subject is not what the punishment is but which court may impose it.
The BNS does provide for the crossing. Section 2(39) is not a definition but an interpretation clause: words and expressions used but not defined in the Sanhita, and defined in the Information Technology Act, 2000 and the Bharatiya Nagarik Suraksha Sanhita, 2023, "shall have the meanings respectively assigned to them in that Act and Sanhita". An Explanation to Section 23 is a definition in the BNSS, and the phrase "for the purposes of this section" is absent from it, so the bridge holds well enough.
The difficulty is not that the definition is hard to reach. It is what arrives when one reaches it.
The Explanation does two things. It states the character of the work — that it benefits the community — and it states one consequence — that the convict earns nothing by it. It states nothing else.
What the definition does not supply
Every other punishment in Section 4 carries a measure.
Death is a single act. Imprisonment for life is defined by Section 6 as twenty years for the purpose of calculating fractions. Imprisonment carries a maximum in the text of every offence that prescribes it, and a description — rigorous or simple — which Section 7 lets the court apportion. Fine carries Section 8(1): where no sum is expressed, the amount "is unlimited, but shall not be excessive" — a governing standard, reproduced verbatim from Section 63 of the Penal Code.
Community service carries none. Neither Sanhita states a maximum, whether in hours, days or weeks. Neither states a minimum. Neither supplies the equivalent of "shall not be excessive". None of the six offences that prescribe it attaches a quantum to it, in the way each of them attaches a term to the imprisonment and a ceiling to the fine offered as alternatives in the same sentence.
Nor does either Sanhita say who administers it. There is no provision naming an officer, a department, a probation authority or an institution to allot the work, to supervise its performance, or to report whether it was performed. In the 531 sections of the Bharatiya Nagarik Suraksha Sanhita the expression "community service" occurs in one section only — Section 23, twice in the sub-sections and once in the Explanation. Outside those, it is found solely in the entries of the First Schedule that reproduce, for the six offences concerned, the punishment the BNS has already prescribed.
It does not, in particular, appear in Chapter XXXIV, which is the chapter on the execution of sentences. That chapter is divided into lettered parts by the punishment being executed — A, death sentences; B, imprisonment; C, levy of fine; D, general provisions regarding execution; E, suspension, remission and commutation. There is no part for community service, and no section within the other parts that mentions it. A sentence of imprisonment is executed under Section 458 by a warrant the sentencing court forwards to the jail or other place of confinement. A fine is levied under Section 461 by a warrant for attachment and sale of movable property, or by a warrant to the Collector to realise the amount as arrears of land revenue. A sentence of community service is executed by nothing the Sanhita describes.
Nor is there a rule-making power addressed to it. Section 523 empowers every High Court, with the previous approval of the State Government, to make rules — about petition-writers. The rule-making powers scattered through the Sanhita are each tied to a specific section. None is tied to Section 23.
The default machinery, and where it was inserted
Sections 63 to 70 of the Indian Penal Code formed a closed sequence about fine: the amount, the power to direct imprisonment in default, the limit on that imprisonment, its description, the separate limit for fine-only offences, its termination on payment, its termination on proportional payment, and the six-year period for levy. Section 8 of the Bharatiya Nyaya Sanhita compresses all eight into one section of seven sub-sections. Its marginal heading is "Amount of fine, liability in default of payment of fine, etc."
Community service was inserted into that sequence — into exactly two of its seven sub-sections. It is worth setting out which.
Sub-section (2) is the power-conferring provision, the successor to Section 64 IPC. It says that in every case of an offence punishable with imprisonment as well as fine, or with imprisonment or fine, or with fine only, "in which the offender is sentenced to a fine", it shall be competent to the court to direct that in default of payment of the fine the offender shall suffer imprisonment for a certain term. The trigger, in both limbs, is a sentence of fine. Community service is not mentioned.
Sub-section (3), the successor to Section 65 IPC, caps the default term at one-fourth of the maximum term of imprisonment fixed for the offence, "if the offence be punishable with imprisonment as well as fine". Community service is not mentioned.
Sub-section (4), the successor to Section 66 IPC, is the first of the two. It reads: "The imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence."
Sub-section (5), the successor to Section 67 IPC, is the second, and the insertion there is larger. Section 67 opened with the words "If the offence be punishable with fine only". Sub-section (5) opens: "If the offence is punishable with fine or community service". It then requires the default imprisonment to be simple and caps the term at two months where the fine does not exceed five thousand rupees, four months where it does not exceed ten thousand, and "one year in any other case".
Sub-section (6)(a), the successor to Section 68 IPC, provides that the default imprisonment "shall terminate whenever that fine is either paid or levied by process of law". Community service is not mentioned. Sub-section (6)(b), from Section 69, abates the imprisonment proportionally as the fine is paid. Community service is not mentioned. Sub-section (7), from Section 70, allows the unpaid fine to be levied within six years. Community service is not mentioned.
The distribution is consistent. Of the seven sub-sections, community service was written into the two that describe and limit the imprisonment imposed in default of it, and into none of the sub-sections that confer the power to impose that imprisonment, and none of those that bring it to an end.
The same pattern appears on the procedural side. Section 24 of the BNSS is headed "Sentence of imprisonment in default of fine", and empowers a Magistrate to award such a term "in default of payment of fine". It does not mention community service either.
Three consequences that follow from the text
The first is the power itself. Sub-sections 8(4) and 8(5) both presuppose an "imprisonment which the Court imposes ... in default of community service". Neither confers the authority to impose it. Sub-section (2), which is the provision that confers that competence, is drafted around a sentence of fine and was not amended; neither was Section 24 of the BNSS. Whether the presupposition in sub-sections (4) and (5) is itself sufficient to create the power, or whether a default sentence for community service now rests on an implication, is a question the text does not answer. The amendment that would have answered it is a short one, and was not made.
The second is the scale. Sub-section (5) caps the default term "in default of payment of fine or in default of community service", but every one of its three brackets is keyed to a figure — "the amount of the fine". Where an offender is sentenced to community service alone there is no fine and no amount, and the only bracket that can be reached is the residuary one: "one year in any other case".
There is one offence in the Sanhita where community service is the sole punishment prescribed. The proviso to Section 303(2) provides that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, he shall, "upon return of the value of property or restoration of the stolen property", be punished with community service. It is mandatory — "shall be punished" — and it is conditional on restitution having already been made. The case it describes is a narrow one: a first offender, under five thousand rupees, who has already given the property back. It is also the one case in which a default term, if it may be imposed at all, can only fall into the residuary bracket of one year.
Compare the offender fined five thousand rupees for the same theft under the main limb of Section 303(2), who faces two months.
The third is the way out. For a fine, Section 8(6) supplies two: the imprisonment ends when the fine is paid or levied, and it abates as the fine is partly paid. A fine is a debt, and the code is careful to ensure that the default imprisonment is a means of collection rather than a substitute for it — which is why Section 8(7) keeps the fine recoverable for six years, and why Section 8(6)(b) carries a five-sentence illustration working through the arithmetic. Nothing corresponding was written for community service. On the text, a convict who begins serving a default term for not performing the service has no stated route out by performing it.
The distinction is not artificial. A fine can be paid by anyone and at any time. Community service can only be performed by the convict, and only if someone is in a position to receive it — which returns to the absence of any provision naming who that is.
What the word "only" was doing
One further consequence follows from the change of trigger in sub-section (5).
Under the Penal Code, Sections 65 and 67 were mutually exclusive. Section 65 applied where the offence was "punishable with imprisonment as well as fine" and capped the default at one-fourth of the maximum. Section 67 applied where the offence was "punishable with fine only" and capped it on a scale of two, four and six months. The word "only" kept the two apart, so that no offence could satisfy both.
Sub-section 8(3) retains Section 65's trigger unchanged. Sub-section 8(5) does not retain Section 67's. Its trigger is now "if the offence is punishable with fine or community service", and the word "only" is gone.
Five of the six offences carrying community service are punishable with imprisonment, fine and community service in the alternative: Section 202 (public servant unlawfully engaging in trade), Section 209 (non-appearance in response to a proclamation), Section 226 (attempt to commit suicide to compel a public servant), Section 355 (misconduct in public by a drunken person) and Section 356(2) (defamation). For each of them, both triggers are now literally satisfied — the offence is punishable with imprisonment as well as fine, and it is punishable with fine or community service — and the two sub-sections prescribe different caps. Whether sub-section (5) is to be read as confined, like its predecessor, to offences carrying no imprisonment, or whether the omission of "only" was deliberate, is not something the section resolves.
Section 355 makes the point concretely. Misconduct in public by a drunken person is punishable with simple imprisonment which may extend to twenty-four hours, or with fine which may extend to one thousand rupees, or with both, or with community service. Under sub-section (3), a default term could not exceed one-fourth of twenty-four hours. Under sub-section (5), any fine imposed being necessarily below five thousand rupees, it could extend to two months.
The shape of the omission
Collected together, the mentions of community service across the two Sanhitas do not suggest an oversight in a single place. A new punishment was added to Section 4; a definition of it was placed in an Explanation to a jurisdictional section of the procedural code; it was attached to six offences; and it was written into two sub-sections of the section on fine, both of which limit the consequence of failing to perform it. Every other provision that would have to exist for the punishment to be administered — a measure, an agency, a method of execution, a rule-making power, a release on performance — was left for later, and so far as either Sanhita is concerned has not arrived.
A court sentencing an offender under the proviso to Section 303(2) is not exercising a discretion. The provision is mandatory, and the sentence it requires is one the statute does not quantify and provides no means of carrying out. In practice that gap has to be filled from somewhere — by the sentencing order specifying the work and its duration itself, by whatever State-level arrangements exist, or by the court declining to reach the proviso. None of those is what the statute directs, because the statute directs nothing.
The 2023 Sanhitas were drafted as a replacement of the whole apparatus rather than an amendment of it, and their defenders and critics have argued since 2023 about the rules they changed. The sixth punishment is a different kind of case. It is not a rule that was changed. It is a rule that was announced, and whose machinery was left in the enactment it was borrowed from — except that there was no enactment to borrow from, because in 1860 there was no sixth punishment.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.