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Tuesday, January 26, 2021

Explained: How Gujarat HC came to order Covid-19 community service for mask violators

Section 53 of the Indian Penal Code which deals with types of punishment, does not include community service as an option.

Written by Sohini Ghosh , Edited by Explained Desk | Updated: December 4, 2020 10:17:57 pm
Health workers in protective gear collect swab samples for Covid-19 testing in Gujarat (File/Express Photo by Nirmal Harindran)

The Gujarat High Court on Wednesday directed the Gujarat government to ask mask violators to not only pay the penalty of Rs 1,000 but also render community service at Covid-19 care centres.

How did community service figure into the scheme of things?

While Vishal Awtani, an advocate at Gujarat High Court, had initially moved an application seeking a doubling of the penalty amount for those violating the mask rule from Rs 1,000 to Rs 2,000, he later added an amendment suggesting community service for offenders apart from recovering the penalty amount. In his submissions before a Division Bench on November 27, Awtani claimed implementation of mask penalties remains unsatisfactory in Gujarat and as a result it is failing to create a deterrence effect. Awtani suggested the offenders be stipulated to provide community service in Covid-19 care centres, in a non-medical capacity, “so that they understand the gravity of the situation”. The proposal had found favour with the bench.

How did the state government respond to such a proposal?

The state government, represented by the Advocate General Kamal Trivedi, had likened itself to be in a Hamletian dilemma of ‘to be, or not to be…’. Most of its concerns pertained to the aspect that even if such a rule of community service is imposed for violators, how can it be implemented on ground. The concerns included managing logistics and deploying dedicated manpower amid an already precariously positioned manpower deployment for other activities concerning Covid-19 work.

The government pleader had also informed the court that identifying repeat offenders would be tough since, unlike the US, India did not have a social security number to help with this. As per the state government, it will first have to identify places where such offenders can be sent for community service. The authorities will then have to see that they have the addresses of each such offender who is found without a mask and then set up a mechanism to ensure they went to the said places to render community service. “To put additional staff for detecting whether the decision is being implemented or not, will be a mammoth job,” the government had submitted.

Why was the court unconvinced by the state government’s worries and reasoning?

The Division Bench did not take too kindly to the state government’s reluctance and while the court had hoped that the state would draw a modality of implementing community service for offenders, the state’s refusal to take a concrete stand, left the court with no choice but to issue directions. The court had already forewarned that in case it decides to issue directions, it will require to be put into force “immediately.”

Also Read | SC stays Gujarat HC’s mask order, directs state govt to ensure vigorous adherence of Covid-19 rules

The court said “the fear of being caught without masks and being punished should creep into the minds of people.” The bench also noted that the concept of community service is “accepted and implemented world-over including some states in India,” with the system’s origin dating back to 1966 in the US. The court was also not convinced by the state’s submission that there are signs of improvement being seen in the Covid-19 situation in the state. Instead the court observed that the decline is marginal and not significant and thus the correct time to take action is now and not later, so as to strike the right balance of deterrent effect. “Every minute, every hour, every day matters. Any lethargy or inaction today may result in putting the lives of millions at risk,” the court order observed on December 2.

How does the Gujarat High Court perceive community service?

The bench put out clearly that community service is not a punishment but rather a tool of “reparations” with an objective of creating deterrence effect. Looking at the brighter side, the court also added that such offenders can in fact benefit the government or administration or non governmental organisations by being “a great resource.”

Citing that various studies have suggested that a Covid-19 positive person without a face cover can infect up to 200 persons, the court hoped that community service would “provide an opportunity to the offender / violator to have a first hand experience of the injuries caused or could be caused by him. It gives a constructive means of repairing the wrong done by him. It also gives an opportunity to the violator to improve and become more responsible.”

Moreover, since the offender is putting the community around them at risk, the court then only deemed it to be fitting that they serve the community in turn for their folly.

What is the Indian context for community service?

Section 53 of the Indian Penal Code which deals with types of punishment, does not include community service as an option although Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provisions for the offender to render community service. Several instances have been seen when courts exercised their discretion on a case-to-case basis to impose community service.

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A recent example is that of the Supreme Court in January this year where it granted bail to 17 convicts of 2002 Gujarat riot incident at Sardarpura, with a condition for the 17 to render community service at Indore and Jabalpur in Madhya Pradesh. In 2005, to provide effective deterrence to bootleggers and better implement of the liquor prohibition law in Gujarat, community service was considered for offenders at Gandhi Ashram. However, this was not put into effect owing to opposition from various quarters.

In the specific case of community service for not wearing masks, the court had given the state the liberty first to come up with a modality as per its convenience for such a provision. However, the state’s failure to respond to the same, led to the court issuing directions, which will now require to be complied with. In light of the pandemic, Maharashtra had imposed penalty for spitting, along with one to five days of “public service”. In October, several such violators were handed out brooms to sweep public roads in Mumbai. The Gwalior district collector had announced in July that those found without masks will be deployed as “corona volunteers”.

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