By Tanu Priya
Editor’s Note: Punishment is the coercion used to enforce the law of the land, which means it is one of the pillars of modern civilization. Providing a peaceful society and life is the duty of the state. Lack of punishment causes the law to lose its force and eventually creates a society unable to maintain law and order and a government unable to protect its people.
However, the reformative approach to curb crimes such as these and reform the convicts has come up in order to protect the basic rights a human is entitled to. Developed by psychologists, sociologists, and physiologists in order to create a system where the convicts could be reformed and released back into society as citizens. The author has identified that this method has been sustained in several Supreme Court proceedings and that the procedure has been used in the case of juvenile offenders.
Rehabilitation seeks to bring about fundamental changes in offenders and their behavior. As in the rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality.
The human society is a cooperative endeavor secured by coercion. By coercion, we mean a state where a recognized authority is compelled to punish the individual who contravenes the rules and regulation of the commonwealth. The practice of punishment is necessary for the maintenance of this social cohesion. Law is one of the important pillars of the state. To administer justice, punishment is needed. There are various theories of punishment which are retributive, deterrent, and reformative, preventive.
One of the most controversial aspects of legal philosophy concerns the justification of specific punishments for particular criminal violations. Punishment is a recognized function of all the states. With the passage of time, the systems of punishment have met with different types of changes and modifications. To administer justice is an essential function of the state and it is the duty of the state to provide a peaceful environment to its people.
Thus, philosophy behind the concept of punishment is not only to provide justice to the aggrieved but besides this to maintain security and safety in the society, to punish a criminal is not only to give torture to him or to humiliate, but there is a higher objective to be achieved and that is to establish a peaceful society. The concept of Punishment under modern jurisprudence is usually associated with the law of crimes.
Society at any stage of its growth has never been free from the problem of crime. It is inevitable since; some violation of the prescribed code of conduct is bound to occur. Crime in society is universal and is inseparable.[i] Lack of punishment creates a society which is incapable of maintaining civil order and citizen’s safety. So punishments must be imposed on law violators.
Law exists to bind together the community. It is sovereign and cannot be violated with impunity. Roscoe Pound observes; “Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice”. The most essential feature of a State is primarily two:
- War, and
- Administration of Justice.
According to Salmond, the administration of justice implies the maintenance of right within a political community by means of the physical force. It is a modern and civilized substitute for the primitive practice of private vengeance and violent self-help.
ADMINISTRATION OF JUSTICE – BRIEF CONCEPT
The origin and growth of administration of justice is identical with the origin and growth of man. The social nature of man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessity for providing the administration of justice. Without it, injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short.
Social Sanction is an efficient instrument only if it is associated with and supplemented by the concentrated and irresistible force of the community. Force is necessary to coerce the recalcitrant minority and prevent them from gaining an unfair advantage over the law-abiding majority in a State. The conclusion is that the administration of justice with the sanction of the physical force of the State is unavoidable and admits of no substitute.
The crime was quite prevalent in society. In primitive society, every man was a judge in his own cause and might be the sole measure of right. Personal vengeance was allowed. Authorities of State found the need to administer justice. With the rise of political Sates Administration of justice started.
However, those States were not strong enough to regulate crime and inflict punishment on criminals. The law of private vengeance and violent self-help prevailed in the society and the State merely regulated and prescribed rules for regulation. The State enforced the concept of “a tooth for a tooth”, “an eye for an eye”, “a life for a life”.
With the growth of the power of the State, the State began to act as a judge to assess liability and impose the penalty. It was no longer a regulator of private vengeance. It substituted public inquiry and punishment for private vengeance. The civil law and administration of civil justice helped the wronged and became a substitute for the violent self-help of the primitive days. The modern administration of justice is a natural corollary to the growth in power of political State.
CIVIL & CRIMINAL JUSTICE
Crimes are public wrongs and civil wrongs. Blackstone writes: “Wrongs are divisible into two sorts or species, private wrongs, and public wrongs.
The former is an infringement or privations of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community and are distinguished by the harsher appellation of crimes and misdemeanors.”
PUNISHMENT: THE CONCEPT
Punishment is a means of Social Control. H.L.A Hart with Mr. Bean and Professor Flew have defined “punishment” in terms of five elements:
- It must involve pain or other consequence normally considered unpleasant.
- It must be for an offense against legal rules.
- It must be intentionally administered by human beings other than the offender.
- It must be an actual or supposed offender for his offense.
- It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.
In view of Dr. W.C. Reckless, “It is the redress that Commonwealth takes against an offending member.”[ii] Punishment according to West Mark is limited to “such suffering as in inflicted upon the offender in a definite way by or in the name of the society of which he is a permanent or temporary member.”[iii] According to Greenhut, three components must be present “if punishment is to act as a reasonable means of checking crime.”
1) Speedy and Inescapable detection and prosecution must convince the offender that crime does not pay.
2) After Punishment, the offender must have “a fair chance of a fresh start”.
3) “The State which claims the right of punishment must uphold superior values which he (offender) can reasonably be expected to acknowledge.”[iv]
Sutherland and Cressey have mentioned two essential ideas while defining the concept of punishment:-
a) It is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group. War is not punishment for in war the action is directed against foreigners.
b) It involves pain or suffering produced by design and justified by some value that the suffering is assumed to have.
THE CONCEPT OF REFORMATIVE THEORY
According to this theory, the object of punishment should be the reform of the criminal, through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be a human being.
He may have committed a crime under circumstances which might never occur again. Therefore an effort should be made to reform him during the period of his incarceration. The object of punishment should be to bring about the moral reform of the offender. He must be educated and taught some art or industry during the period of his imprisonment so that he may be able to start his life again after his release from jail.
While awarding punishment the judge should study the character and age of the offender, his early breeding, his education and environment, the circumstances under which he committed the offence, the object with which he committed the offence and other factors. The object of doing so is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits the circumstances.
The advocates of this theory contended that by a sympathetic, tactful, and loving treatment of the offenders, a revolutionary change may be brought about in their characters. Even the cruel hardened prisoners can be reformed and converted into helpful friends with good words and mild suggestions.
Severe punishment can merely debase them. Man always kicks against pricks. Whipping will make him balk. The threat will result in resistance. Prison hell may create the spirit of defiance of God and man. Hanging a criminal is merely an admission of the fact that human beings have failed to reform the erring citizen. Corporal punishments like whipping and pillory destroy all the finest sentiments and tenderness in man. Mild imprisonment with probation is the only mode of punishment approved by the advocates of reformative theory.
According to the view of Salmond, if criminals are to be sent to prison to be transformed into good citizens by physical, intellectual and moral training, prisons must be turned into comfortable dwelling places. There are many incorrigible offenders who are beyond the reach of reformative influences and with whom crime is not a bad habit but an instinct and they must be left to their fate in despair. But people criticize; the primary and essential end of criminal justice is deterrence and not reformation.
The reformative theory is also known as rehabilitative sentencing. The purpose of punishment is to “reform the offender as a person, so that he may become a normal law-abiding member of the community once again. Here the emphasis is placed not on the crime itself, the harm caused or the deterrence effect which punishment may have, but on the person and the personality of the offender.”
The Reformative theory is supported by criminology. Criminology regards every crime as a pathological phenomenon a mild form of insanity, an innate or acquired physiological defect. There are some crimes which are due to willful violation of the moral law by normal persons. Such criminals should be punished adequately to vindicate the authority of the moral law.
In terms of the theory, offenders largely commit crime because of psychological factors, personality defects, or social pressures. Sentences are consequently tailored to the needs of the individual offender, and typically include aspects of rehabilitation such as community service, compulsory therapy or counseling. The pre-sentencing report by a probation officer or psychologist plays a substantial role in assisting the judicial officer to arrive at an appropriate sentencing decision.
According to the supporters of the Reformative theory, punishment is not imposed as a means for the benefit of others. Rather, punishment is given to educate or reform the offender himself. Here, the crime committed by the criminal is an end, not a means as in the Deterrent theory. This view is commonly accepted in the present time.
Punishment is inflicted on a criminal for his reformation. This theory does not justify capital punishment. Punishment is inflicted only to educate or reform the criminal himself. Punishment does not always make reform in a criminal. On the other hand, kind treatment sometimes produces a better result than punishment. It may be more favorable to the reformation of the criminal.
Forgiveness can change the nature of the criminal and give the scope of repentance and reformation to the criminal. It is clear that the reformative theory does not justify capital punishment. It supports the reformation of the criminal. According to this theory, a crime is committed as a result of the conflict between the character of a man and the motive of the criminal.
One may commit a crime either because the temptation of the motive is stronger or because the restraints imposed by character is weaker the reformative theory wants to strengthen the character of the man so that he may not become an easy victim to his own temptation this theory would consider medicine. According to this theory, crime is like a disease so you cannot cure by killing.
For this reason, a punishment like imprisonment should be given to criminal and all prisons should be transformed into residences where physical moral and intellectual training should be given in order to improve the character of criminal. A crime is committed as a result of the conflict between the character and the motive of the criminal. One may commit a crime either because the temptation of the motive is stronger or because the restraints imposed by character is weaker.
This theory would consider punishment to be curative or to perform the function of medicine. According to this theory, crime is like a disease. This theory maintains that you can cure by killing. The ultimate aim of reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society.
It must be noted that the reformative theory shows a radical departure from the earlier theories and seeks to bring a positive change in the attitude of the offender so as to rehabilitate him as a law-abiding member of society. Thus punishment is used as a measure to reclaim the offender and not to torture him. This theory condemns all kinds of corporal punishments.
The major thrust of the reformist theory is rehabilitation of inmates in penal institutions so that they are transformed into law-abiding citizens. It focuses greater attention on humanly treatment of prisoners inside the prison. It suggests that instead of prisoners being allowed to idle in jail, they should be properly taught, educated and trained so as to adjust themselves to normal life in the community after their release from penal institution.
This purpose may be achieved through the agencies of parole and probation which have been accepted as modern techniques of reforming the offenders all around the world. Thus the advocates of this theory justify prisonisation not solely for the purpose of isolating criminals and eliminating them from the society, but to bring about a change in their mental attitude through effective measures of re formation during the term of their sentence.In Narotam Singh v. State of Punjab [v] the Supreme Court has taken the following view-
“Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
EXISTING LAWS SUPPORTING THE VIEW OF REFORMATIVE THEORY
In progressive states, provision is made for the prevention of habitual offenders. Bortal schools have been set up. Provision is made for a system of probation for First Offenders. This theory is being growingly adopted in the case of Juvenile Offenders. The oldest legislationon the subject in India is the Reformatory Schools Act, 1890 which aimed at preventing the depraved and delinquent children from becoming confirmed criminals in the coming years. It applied to children under the age of 15 years. The Reformatory Schools Act has been extensively amended in its application to the various States by State legislatures.
The government of India passed in 1960 the Children Act which applies to the Union Territories. This Act was amended in 1978. This amendment broadened the aim of the Children Act, 1960.
The Probation of Offenders Act, 1958 has been passed with a similar object in view. About the Act, the Supreme Court observed in Rattan Lal v. State of Punjab[vi] that the Actis a milestone in the progress of the modern liberal trend of reform in the field of penology.
In Musa Khan v. State of Maharashtra[vii], the Supreme Court observed that this Act is a piece of social legislation which is meant to reform juvenile offenders with a view to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the government.
Section 27 of the Criminal Procedure Code, 1973 provides that any offence not punishable with death or imprisonment for life committed by any person who, at the date when he appears or is brought before the court, is under the age of 16 years, may be tried by the court of a Chief Judicial Magistrate or by any court especially empowered under the Children Act,196 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the release on probation of good conduct or after admonition.
SUPPORTERS OF REFORMATIVE THEORY:-
Physiologists hold that crimes are due to physiological defect. Therefore, criminals should not be punished. Rather, they should be treated in hospitals by psychologists or psycho-analysts. That is why, according to this theory, crime is not a deliberate act of violation on part of the criminal. It is only due to his mental instability. Criminal anthropologists hold that criminals should not be punished. Rather, they ought to be treated in hospitals or reformatories. But the problem is that all crimes are not due to insanity or physiological defects. There are some crimes which are deliberate violations of the moral law and should be punished.
Again there are some crimes which are due to social inequalities. For instance, theft is a crime. The authority of the moral law demands that the person who is involved in theft should be punished. But if we investigate the case properly we understand that the cause of theft is poverty. Therefore, criminal sociologists view that we cannot think of prevention of crime without improving the social and economic conditions of the common people. Crimes can be prevented only if society is reconstructed on the basis of justice and equity. The advocates of this view are called criminal sociologists.
This theory is supported by psychologists. They hold that crimes are not due to willful violation of the moral law. Rather, crimes are due to mental disorder or insanity. That is why criminals should not be punished. They should be treated in hospitals or reformatories for reformation. The treatment of the criminal should be educational or medical rather than punishment. But there are some crimes which are a deliberate violation of the moral law committed by some people. Therefore, they should be punished. So, punishment prevents others from committing similar crimes. It also can refine the criminal’s mind not to take to the wrong path.
PSYCHLOGY & JURISPRUDENCE: A VIEW ON RELATIONSHIP
Psychology as a branch of knowledge is concerned with the working of the human brain or mental faculty. Since Jurisprudence and law are necessarily concerned with human action and it is the human mind which controls human action, inter-relation between psychology and jurisprudence need not be over emphasized. Particularly in dealing with crimes the psychology of the offender is generally taken into consideration. Again, psychology plays a dominant role in the study of Criminology & Penology. The psychology of the offender is also one of the crucial factors in deciding the nature of the punishment of the convicted person. The modern reformative techniques of punishment are essentially devised for the treatment of offenders according to their psychological traits. Such as:-
- Indeterminate Sentence
That apart, the legal concepts pertaining to the faculty of mind and they, therefore, form a part of the study of psychology as also the jurisprudence, Such as:-
- Mens Rea
- Other Cognate Mental Conditions
There is a school of jurists which hold the view that the sanction behind all laws is a psychological one. Jurisprudence is concerned with man’s external conduct & not his mental process, but penology has benefited from the knowledge made available by Psychological Researchers.
LAW & MORALS (ETHICS)
In ancient times, there was no distinction between Law & Morals. However, later on, Mimansa made a distinction between obligatory & recommendatory rules and thus distinction came to be made in actual practice. By the time the commentaries were written, the distinction was clearly established in theory also. The rules were purely based on morals.
The doctrine of “factum valet” was recognized. That doctrine means that an act which is in contravention of some moral injunction should be considered valid if accomplished in fact. In its decision, the Privy Council made a distinction between legal & moral injunctions. The same is the case with the Supreme Court of India.
Morals or Ethics is a study of the supreme good. Law lays down what is convenient for that time and place. Both have a common origin but they diverge in their development. Morals are considered to be of universal value but the law is dynamic and varies from place to place. Morals are applied after taking into consideration individual cases whereas the application of the law is Uniform.
A study of the relationship between law & morals can be made from three angles:
- Morals as the basis of law.
- Morals as the test of positive law.
- Morals as the end of the law.
Some way morality is an integral part of law. Morality is “secreted in the interstices” of the legal system and to that extent is inseparable from it. This view point says that law in action is not a mere system of rules but involves the use of certain principles such as equity & good. Law & Morals act and react upon and mould each other. In the name of justice, equity, good faith & conscience, morals have infiltrated into the fabric of law. Moral considerations play an important part while making law, and exercising judicial discretion.
Morals act as a restraint upon the power of the legislature. No legislature will dare to make a law which is opposed to the morals of society. All human conduct and social relations cannot be regulated and governed by law alone and very many relations are left to be regulated by morals & law does not interfere with them. Morals perfect the law. According to jurists, morals have become a very important subject of study for good law-making. Morals also exercise a great influence on International law.
LAW & JUSTICE (EQUITY)
The ultimate object of every legal system is to secure justice. Aristotle tried to explain justice by categorizing it as:-
According to Salmond, the law exists for the promotion of justice within the framework of the law. He defines law as “the body of principles recognized and applied by the state in the administration of justice”. He further said, “the law consists of the rules recognized and acted on by the court of justice”.
JUSTICE: INDIAN PERSPECTIVE
The ancient Indian concept of Dharma was analogous concepts consistent with righteousness, truth, morality, & justice. The ideal and object of the law were to promote justice. Law was governed by Dharma. The victory of good over evil, justice over injustice, was accepted as an innumerable universal rule. Even though the concept of equality & respect for human dignity is recognized in the Vedic texts, Hindu society was marked for its unequal & class character, which resulted in discrimination.
The Manusmriti reflected the social realities of the time. The modern concepts of rule of law and equality before the law were introduced along with secularization of administration of justice during the British Period. The Constitution, which was framed after independence embodies a concept of justice deeply influenced by the ideals of Western liberal democratic thought.
The Preamble speaks about justice-social, economic & political. The Fundamental Rights, which guarantee basic rights, the Directive Principles, which guide law-making & executive policies spell out how the three-dimensional concept of justice must be attained in the Indian context.
The Reformative methods have proved useful in case of juvenile delinquents, first offenders & women. Sex-psychopaths also seem to respond favorably to the reformative method of punishment. More recently, the reformative theory is being extensively used as a method of treatment of mentally depraved offenders. This present trend is to treat the offender rather than to punish him.
This is done by classifying offenders on the basis of age, sex, the gravity of the offense and mental depravity. Thus clinical method pre-supposes punishment as a kind of social surgery since criminal is essentially a product of conflict between the interests of individuals in the society. In recent years, the supreme court of India has awarded compensation to victims who suffered due to torture or negligence by the prison or jail authorities.[viii]
Gandhi ji said, “Hate the sin and not the sinner”. It should be a guide in the administration of criminal justice.
In the words of Justice Krishna Iyer: “a Holistic view of sentencing and a finer perception of the effect of imprisonment give short shrift to draconian severity & self-defeating. Perhaps the time has come for Indian Criminologists to rely more on Patanjali Sutra as a scientific & curative for crimogenic factors than on the blind jail term set out in the Penal code & that may be why Western researchers are now seeking Indian Yogic ways of normalizing the individual & the group.”
Mr. Justice Krishna Iyer focuses on certain elemental factors which are of great significance for criminology thoughts particularly so far as our country is concerned to him the Gandhian diagnosis is the key to the pathology of delinquency & therapeutic role of punishment. It treats the whole man as a healthy man & every man is born good and so the modern principles of penology and reform and rehabilitation of the offender ought to guide and inform the Indian criminal courts.
The spirit of correctional philosophy in criminology is rightly described by Justice Krishna Iyer, “Every saint has a past and every sinner a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal behavior of many innocent convicts. Law must rise with life and jurisprudence responds to humanism.”
In Sunil Batra, Karuna (Mercy) is treated as the mainspring of jail justice which would obviate torture some behavior which spoils the reformatory and correctional process. According to Krishna Iyer, “fair treatment will enhance the chance of rehabilitation by reactions to arbitrariness.”[ix]
Modern times understands the need to reform the criminal & he commits crimes because of social; inequalities & injustice i.e. poverty, illiteracy, squalor & disease. The offender is to be treated as a sick man to be healed rather than as a malefactor to be chastised. Further Socialization of the offender would eliminate the factors which motivated him to commit the crime & he gets a chance of leading a normal life in society.
The reformative theory made a special focus on greater attention on humanly treatment of prisoners inside the prison. This purpose may be achieved through the agencies of parole & probation which have been accepted as modern techniques of reforming the offenders all around the world. The modern view is that “the mainspring of criminality is greed and if the offender is made to return the ill-gotten benefits of crime, the spring of criminality would dry up”.[x]
The Apex Curt in D.K. Basu v. State of West Bengal[xi] held that custodial torture or death in the lockup strikes a blow at the rule of law and therefore, the court even recommended a change in the law of evidence to throw the onus on the police or jail authorities as to how a prisoner in their custody came to meet the death under suspicious circumstances[xii].
The Court has provided monetary compensation to the victims of police excesses in several cases[xiii]. In the case of Ashok Kumar[xiv] who succumbed to injuries sustained while carrying a load at the behest of the Roorkee Sub-jail authorities, the National Human Rights Commission directed U.P. State government to pay One Lakh rupees to his parents as compensation & issued guidelines that an under-trial cannot be put to hard task.
Kautilya regarded the object of punishment as reformatory. Reformative punishment may mean either that the offender is reformed while being punished or that he is reformed by the punishment itself qua the punishment[xv].
THE CONCEPT OF RESTORATIVE JUSTICE
Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions that promote repair, reconciliation, and reassurance.
Those who view crime from a Restorative Justice perspective see crime as a conflict which creates a breach, a “rent” in the fabric of the community. Rather than the state and its laws at center-stage, the focus remains on the disputants and on accountability, responsibility, and negotiating fitting amends and, to the greatest possible degree, the repair of the harm. Since crime involves and affects—even erodes—the community, involving and empowering people to assist in the resolution of criminal conflicts that arise in their communities can reverse that trend, reducing the sense that the community is powerless to do anything about the levels of crime within it. Victim-offender mediation can dramatically change that dynamic.
Victim-offender mediation (often called “victim-offender conferencing”, “victim-offender reconciliation” or “victim-offender dialogue”) is one of the clearest expressions of restorative justice, a movement that is receiving a great deal of attention throughout North America and Europe. Restorative justice, however, provides a very different framework for understanding and responding to crime and victimization. Moving beyond the offender-driven focus, restorative justice identifies three clients: individual victims, victimized communities, and offenders.
Crime is understood primarily as an offense against people within communities, as opposed to the more abstract legal definition of crime as a violation against the State. Those most directly affected by crime are allowed to play an active role in restoring peace between individuals and within communities. Restoration of the emotional and material losses resulting from crime is far more important than imposing ever-increasing levels of costly punishment on the offender
A new approach to crime & punishment through the process of mediation between the offender & the victim of his crime was adopted in U.S.A & Western European countries during the mid 1970s. It was termed as “Victim-Offender Mediation” (VOM). The process involved meetings between victims, offenders & mediators offering the opportunity to the offender to explain his conduct or apologies to the victim.
The family members of the offender and/or the victim and community members could also be present in such mediation meetings. The victim gets a change to explain how he/she was mentally, materially, or physically affected as a consequence of the crime & the offender gets an opportunity to respond & restore justice to the victim.
Based on a foundation of Restorative Justice values, the Victim Offender Mediation Program (VOMP) focuses, at a post-incarceration stage, on remaining accountability, healing and closure issues for those involved in or affected by traumatic criminal offenses. While the program can and does involve face-to-face mediation in many cases, the ‘mediator’ is not an intervener but rather a supportive facilitator of therapeutic dialogue. The assessment and preparation processes are therapeutic in nature and informed by current theory and clinical practice regarding offender treatment and victim trauma recovery.
The purpose of the Victim Offender Mediation Program is to assist people affected by serious crimes by:
- empowering them to address issues and concerns surrounding the crime and its consequences;
- providing the parties with a process which can lead to new insight, thereby reducing levels of anxiety, and contributing to therapeutic gains;
- addressing questions and concerns regarding the offender’s eventual release into the community;
- Providing sensitive staff who are committed to being agents of healing and restoration for those who suffer crime’s effects.
The system of restorative justice has advanced criticism from certain quarters alleging that it grossly lacks punitive element & therefore, is contrary to the basic principle of sentencing which necessitates infliction of harm on the offender that fits his crime. Critics also feel that the outcome of any VOM process would depend upon the personalities & mental frame of the victim & the offender & therefore it would lack rationality. It is also alleged that the restorative approach would virtually turn criminal justice into civil justice because of the absence of punitive response. It for these reasons that the system has not been accepted in India.
JUVENILE JUSTICE:- REFORMATIVE TECHNIQUES
The early criminal justice system did not recognize any distinction between adults & juvenile offenders so far punishments were concerned. It is only with the popularity of Reformative theory of punishment, it was realized that the youngsters between a certain age group should be differently treated .in the matter of punishment because they are easily attracted to temptations of life & thus lend into criminality without any real intention of committing a crime.
It is with this purpose that most countries are now tackling the problems of juvenile delinquents on priority basis setting up separate juvenile courts or Boards to deal with young offenders & the procedure adopted in these radically different from that of a regular trial court. Delinquency is an act or behavior which is not normal. Harmful behavior pattern is called delinquency.
If a delinquent act is punishable it is a crime otherwise delinquency is not a crime. “An act dangerous to society or to himself which is done by a person below a certain age as specified by the statute is termed as a delinquents act although that act if done by a person above that age is regarded as Criminal. Thus a wayward or incorrigible act done by a child or an act which is otherwise criminal if done by a child or juvenile is termed as a delinquent act or a criminal act.”[xvi] Juvenile Delinquency is a gateway to adult crime since a large percentage of criminals careers have their roots in childhood. It is a problem of serious concern all over the world.
Causes of Juvenile Delinquency are:-
i. Adolescence Instability
ii. Uncongenial Home
iii. Associational Impact
iv. Sex Indulgence
vi. Failure in School Life
viii. Irresistible Impulse
A juvenile is not “arrested” but “taken into custody”, he is not “sentenced” but “committed” & his record is part of civilian files. It aims to have a healing effect on sentiments of juveniles so that he may be reformed as much as possible & his tender faculties of mind may get proper guidance.
JUVENILE DELINQUENCY IN INDIA
In modern India, the important area of the application of correctional & reformatory approach relates to Juvenile Offenders-the young & immature violators of the law who do not understand the gravity or consequences of their unlawful acts. The United Kingdom was the first country which established a network of industrial schools & reformatories for neglected children & young offenders. In USA juvenile courts were set up & Children Acts were enacted.
The example of British practice of separate treatment for juvenile offenders in India is the Apprentices act, 1850 & the Reformatory School Act, 1876 for treatment of juvenile delinquents. The Reformatory Schools Act was the first attempt to separate juvenile offenders from adult prisoners. The young offenders were lodged in these institutions which imparted industrial training to them for their rehabilitation. The Act aimed at preventing young offenders from becoming hardened or professional criminals in the future.
This Act was subsequently amended & replaced by the Children Act, 1960. It provided for the establishment of children courts. The Children Act got amended in 1978 & finally replaced by the Juvenile Justice Act, 1986. This act makes special provisions for the care, protection, treatment, development & rehabilitation of delinquent’s offenders & for the adjudication of justice through juvenile courts. The Act was based on two fundamental resumptions:-
a) Young offenders should not be tried but should rather be corrected
b) They should not be punished but treated
The basis of juvenile justice is the rehabilitation & reform of the delinquent child under the age of 16 years of age. The Act provides that no juvenile delinquents shall be sentenced to death or imprisonment. In Sheela Barse case[xvii] the Apex Court had released children below the age of 16 years detained in jails all over the country. The Supreme Court has highlighted the importance[xviii] of proper handling, training, and guidance of children both on the part of society & government.
The Act provided for Juvenile Welfare Boards & Juvenile Courts for care & trial of juveniles. It also empowered the State Governments to free children from clutches of jails, & to establish Juvenile Homes for the reception of neglected juveniles (non-delinquent children) & Special Homes (Observation Homes) for the custody of delinquent juveniles. According to Justice Bhagwati & Justice Pathak, “Juvenile Delinquency” is, by and large, a product of social & economic maladjustment.
Even if it is found these delinquents have committed offenses, they cannot be allowed to be maltreated. They do not shed their fundamental rights when they enter jail. The law throws a cloak of protection around juveniles & seeks to isolate them from criminal offenders because the emphasis placed by law is not incarceration but on reformation.
The Indian Penal Code extends total immunity up to the age of seven.
Section 82 provides: “Nothing is an offence which is done by a child under seven years of age.”
Section 83 provides: “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.” The period of 12 years was approved by the Law Commissioner.
However, consequent to the passing of the U.N. Convention on the Rights of the Child on 20th November 1989 which was ratified by the Government of India as a member party on 11th December 1992 the standards prescribed by the said convention had to be adopted. A new Act entitled Juvenile Justice (Care & Protection of Children) Act, 2000 was passed which came into force on 1st April 2001 replacing earlier Juvenile Justice Act. Under this Act, a juvenile or child means a person (boy or girl) who has not completed eighteenth years of age.[xix]
There are Certified Industrial Schools under the provision of Borstal Schools Act. The English Borstal Law has been adopted in India for reforming criminals. To effectuate this type of punishment, the Probation of Offenders Act was passed in 1958. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
There are at present a number of Children Homes, Observation Homes, Borstal Institutions & Reformatories functioning throughout India where adequate educational & vocational training is imparted to young offenders. The States have also established After Care Association & Child Aid Societies for rehabilitation of juveniles who need care & protection after their release from Homes, Borstal & Reformatories.
STATUTORY PROVISIONS DEALING WITH THE JUVENILES-
Immunity from Criminal Liability
There is a presumption of doli incapax that the child is not competent to commit the crime. In India, Section 82 of the Indian Penal code, 1860 confers immunity to the child below 7 years of age from the criminal liability but a child who is more than 7 years but below 12 years of age the immunity shall extend if he has not attained a sufficient degree of maturity of understanding to judge the nature & consequences of his act.
Beneficial Probation Laws
In India, under Section 6 of the Probation of Offenders Act, 1958 a person under 21 years age if found guilty of having committed an offense punishable with imprisonment shall not be sentenced to undergo the same, the court can release him on probation of good conduct.
Separate Confinement of Young Offenders
Section 27 of the Prisons Act, 1894 makes the provision for separate confinement of adult criminals, young offenders & female prisoners. It aims to prevent contamination of juveniles & further to safeguard exploitation by other offenders.
The Whipping Act, 1900 made provision for whipping of juveniles, the reason for this provision was that the young offenders should be avoided to be imprisoned. However, this Act has been replaced by the Abolition of Whipping Act, 1955.
Borstal School System
The Borstal School System is famous after the name of village Borstal in England, where in 1902 Rochester Prison in Borstal village was converted into a reformatory to reform delinquent boys. In Borstal Institutions the offenders in the age group of 15 to 21 who commit the offenses punishable with imprisonment are kept for a maximum of 2 years although they can be released after 6 months. In the Borstal term, the juveniles are provided with education, industrial training & the recreation so that young offenders may develop themselves mentally fit & live a peaceful & law abiding life after their release.
Reformatory school System
In 1897 the Reformatory Schools Act was enacted empowering the State Government to establish Reformatory Schools. Section 399 of Cr.P.C 1898 made the provision of reformatory school for that area where the Reformatory Schools Act was not applicable. Generally, these schools are meant for “Youthful Offenders”.
Remand Homes & Certified Schools
Section 9 of the Juvenile Justice act, 1986 the State government may establish the Juvenile Homes. Under Section 10, the State Government may establish Observation Homes. Section 10 & 11 of the Children Act, 1960 which is applicable to the Union Territories in India make the provisions for establishing Special Schools & Remand homes.
Pursuant to the recommendation of the Jail Committee 1919-20, the Children Act has been passed by various States. Parliament enacted in 1960 the Children Act to be operative only in the Union Territories. The Children Act makes the provision for:-
- Rehabilitation of neglected or delinquent children
- Trial & Punishment of youthful offenders
RECOMMENDATIONS OF INDIAN JAIL COMMITTEE
The Indian Jail Committee was appointed in 1919 to review the conditions prevalent in jails. The Indian Jail Committee 1919-20 recommended various measures for the reform of child offenders. It was very much critical of the detention of the children in Jail. Since the child runs into criminality due to adverse circumstances and not because of the habit formations, he can be reformed easily.
- The Committee recommended the English provisions of law in dealing with the children to be accepted in India also.
- The recommendation was done for the establishment of the Children’s Courts.
- In case the child offenders are less, the Magistrate may hear the case in special hours and in a separate room to have a clear standing of the child with a paternal outlook. The Special Magistrate for a large area would not be beneficial to the child rather it would be harmful to him for the inconvenience in bringing him to that place. The Magistrate should have information about the child’s home, his habits & circumstances leading to his criminality.
- The child should be released on bail or sent to a remand home till the receipt of such information.
- The committee also recommended for the widening of the provisions for the release on probation of child offenders with wider discretion to the courts.
- These offenders must be kept under the supervision of the Probation Officers & the number of cases under a Probation Officer is more than the area must not be scattered or too large.
- The Reformatory School must be situated within or near the prison.
- Buildings must be planned properly on the cottage system.
- The Committee also recommended for the training of inmates to have self-control.
- The Offender must be examined regarding their mental & physical conditions & if they have defects, they must be sent to those institutions which are specially meant for them.
- After the release of these offenders, a contact must be kept with them to render them any help or assistance in case of their need.[xx]
A prison is a place where the criminal justice system put its entire hopes. The correctional mechanism, if fails will make the whole criminal procedure in vain. The doctrine behind punishment for a crime has been changed a lot by the evolution of new human rights jurisprudence. The concept of reformation has become the watchword for prison administration. Human rights jurisprudence advocates that no crime should be punished in a cruel, degrading or in an inhuman manner[xxi].
On the contrary, it is held that any punishment that amounts to cruel, degrading or inhuman should be treated as an offense by itself. The term prison has been defined by the Prisons Act, 1894 in an exhaustive manner[xxii]. Prison can be any place by virtue of a government order being used for the detention of prisoners.
Thus even a jail will come under the definition of the prison according to this definition. The modern idea about prison has been envisaged by judges through the decision making process. Even the concept of open jails has been evolved by time. No longer can prisons be called as an institution delivering bad experiences. Krishna Iyer, J opined prison as:
“A reformative philosophy, rehabilitative strategy, therapeutic prison treatment and enlivening of prisoner’s personality through the technology of fostering the fullness of being such a creative art of social defense and correctional process activating fundamental guarantees of prisoner’s rights is the hopeful note of national prison policy struck by the constitution and the court.”
Thus now all the dignity that human holds can also be availed inside the four walls of prison. The traditional definition and concept about the prison is unfit for the time. The human rights jurisprudence contributed much for the penal reforms and the same had its impact in India. The penal reforms made all over the world have its impact in India too.
The concept of penal reform had its birth from the reformative theory of punishment. Prison of the time should have a meaning that incorporates the reformative values into it. The reformative aspect thinks of incorporating humane values into the prison system and the prison officials have to work for the achievement of the same. The extent of protection assured by the legal system for the reformative treatment of prisoners should be made under a national legal frame work and India lacks the same.
The legal framework on prisoner’s rights
Indian constitution intimates prison administration as a portfolio of state to legislate on[xxiii]. The fundamental responsibility of prison management is to secure custody and control of prisoners. Legislations, if made by the states, will always lack the unique standards for the protection of prisoner’s rights. There should be a national policy framework that substitutes the varying state legislation.
It is true that the system normally demands the reformative framework that too one in tune with the international human rights law. This objective can be easily achieved by national legislation rather through varying state laws. India still runs with century old legislation for prison administration[xxiv]. Prisons Act is only concerned about the classification and segregation of prisoners by their nature and status of imprisonment.
It failed to incorporate many of the principles laid down by the judiciary into its premises as well as recommended by the human rights law. Prisons Act also attempt to cast the responsibility of prison administration over the state.
Even the solitary confinement is still retained in the Act against which the judiciary had made their vehement dissent. The liberty to move, mix, mingle, talk, Share Company with co-prisoners if substantially curtailed would be volatile of Art. 21, unless the curtailment has the backing of law and this law should lay down a fair, just and reasonable procedure[xxv].
Prisons Act is also concerned about the prisoner’s right to and meet visitors but that too is confined to under trial prisoners and civil prisoners. The concept of prison labour and earning are very vague from the Act. State on the other side, follows different practices in prison administration. Moreover the prison environment is an unseen one and that makes things more complicated. To conclude over the approach of the Act, it is important to point out that it still maintains separate confinement as a punishment for the offences done inside the prison. This indicates that the strategy of rehabilitation and reformation still have to be made into the Act.
Judicial initiatives in prison justice
The Indian system of prison administration was restructured and modified by the judiciary. Many of the rights assured to prisoners were incorporated into the Indian legal system by the judiciary.
Reformation as the objective of punishment: Krishna Iyer, J. was the person who advocated strongly for orienting reformative treatment of prisoners. In all his judgments he tried to incorporate reformative values into the prison administration. The concept of crime was also redefined by the judges of his time. It was observed that[xxvi]:
“Crime is a pathological aberration that the criminal can ordinarily be redeemed that the state has to rehabilitates rather than avenge. The sub-culture that leads to anti-social behavior has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times.”
The above judgment conveys the right influence of international human rights doctrine over the Indian judiciary. The Court in the Giasuddin emphasized on the Gandhian approach of treating offenders as patients and therapeutic role of punishment. Krishna Iyer, J. delivering the judgment also pointed out that the judge must use a wide range of powers in reformatting the criminal before him. Thus the concept of reformation was planted even out of the four walls of prison by this judgment.
Free from torture and cruel treatment:
Supreme Court in many instances made it clear that the prison treatment should not cause any kind of torturous effect over the inmates. Even the practice of separate confinement and solitary confinement was deeply discouraged by courts in many instances. The court clearly pointed out that the prison authorities cannot make prisoners to solitary confinement and hard labor.
As to ensure the prison practices the Supreme Court in this judgment also directed the district magistrates and sessions judges to visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances. They were to make expeditious inquiries and take suitable remedial action. Thus the concept of judicial policing was recognized by the Supreme Court through this judgment.
Discussing on the same premise the court vehemently criticized the practice of using bar fetters unwarrantedly. The court held the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast, would certainly be arbitrary and questionable under Art. 14. Thus putting bar fetters for a usually long period, day and night, and that too when the prisoner is confined in secure cells from where escape is somewhat inconceivable without any due regard for the safety of the prisoner and the security of the prison is not justified. Judicial interferences of this kind coined many rights for the prisoners which will not be unless ever possible. Krishna Iyer, J. at this instance remarked[xxvii]:
“Society must strongly condemn crime through punishment, but brutal deterrence is fiendish folly and is a kind of crime by punishment. It frightens, never refines; it wounds never heals. “
The message of reformation through prison treatment has to be there in every measure adopted by the authorities. The human right to be safe in prisons as mandated by the international human rights law is being incorporated into Indian law by judicial initiatives. International law gives widest possible protection to the prisoners from torture and that kind of protection can only be accommodated by the legislature.
Freedom of speech and expression:
Prisoners alike others can access many human rights made in the Universal Declaration of Human Rights and international covenants. Indian judiciary had also recognized the right of a prisoner to enjoy the right to freedom of speech and expression. It is interesting to note that the judiciary took such a view before the Kesavanada Bharathi judgment came and the evolution of the concept of justice as fairness.
Alongside this, it is worthwhile in discussing the judicial declaration of the right of the press to interview prisoners. This judgment has certain implications over the right of prisoners in exercising their right to freedom of speech and expression. A Writ Petition filed under Art. 32 by the Chief reporter of Hindustan Times Smt. Prabha Dutt seeking a writ of mandamus or order directing the respondents Delhi Administration and Superintendent, Tihar jail to allow her to interview two convicts Bill and Ranga who were under a sentence of death, whose commutation petition to the President was rejected.
The Court held the restricted right to interview the prisoners subject to their willingness to attend the same. The freedom of press person to interview an under trial prisoner will not be alike that of the prisoner sentenced to death. Supreme Court remarked that the right to interview a prisoner will not become an exclusive right as in the case of life convict and it should be decided on merits depending on each case.
The word “Probation” has its origin in the Latin word “probare” which means to prove or to test. The release of offenders on probation is yet another reformative technique devised as an alternative to conventional incarceration of offenders in prison. In this technique, the offender is released on probation with or without conditions & is allowed to live in the community for his self-rehabilitation.
Thus probation implies postponement of the final sentence of a convicted offender for a certain period of time so as to enable him to have an opportunity to correct his conduct & readjust himself in the community. His release on probation may be on condition that he may be placed under the guidance or supervision of a Probation Officer. This is a system whereby the offender has to prove worthy of not being punished by his conduct.
This concept has developed gradually & unconsciously. The origin of probation is traced to be the “benefit of clergy”[xxviii], “judicial reprieve” & “recognizance” during the middle ages for avoiding or postponement of sentences[xxix]. It has also its antecedents to the 12th century when the king began to pardon the criminals & wipe out punishment awarded to them. Pardon included commutation or remission of sentence.
The law relating to Probation of Offenders in India is contained in the Probation of Offenders Act, 1958 which is comprehensive legislation on probation law. Section 562 of the Code of Criminal Procedure, 1898 made a provision for the release of certain offenders on Probation. Spelling out the object of the release of offenders on probation, the Supreme Court in Ramji Missar v. State of Bihar[xxx], observed:
“The purpose of release of youthful offenders on probation is to stop their conversion into stubborn criminals as a result of their association with a hardened criminal of mature age. Modern Criminal Jurisprudence recognizes that no one is born criminal & that a good many crimes are the result of the socio-economic milieu. Although not much can be done for hardened criminals, yet a considerable emphasis has been laid on bringing about reform of juveniles who are not guilty of very serious offenses by preventing their association with mature criminals.”
Thus it is a reformative technique of treatment & rehabilitation of offenders.
It is generally believed that a prisoner who is released from prison is a danger to society. Ex-prisoners are generally shunned, feared & discriminated & thus they are compelled to become wicked rather than being helped to lead an upright life. In order to obviate this situation, a corrective technique known is “Parole”, which has been devised to provide an opportunity for the prisoner to rehabilitate himself in the society on a promise to return to prison in case he breaks the law. Thus parole is the release of a long term prisoner from a penal institution after he has served a part of his sentence (generally 1/3rd) in prison-custody & on condition that he shall return to the prison to undergo the unexpired sentence in the event of misbehavior.[xxxi]
It may be stated that parole is a selective release of prisoners who show a tendency to reform during the period of their incarceration. The grant of parole is a quasi-judicial function performed by the Parole Board. Before recommending a prisoner’s release on parole, the Board has to ensure that the parole has a suitable abode to live in & a job to do.
In India, the power to release the prisoners on parole is exercised by the executive under the respective laws operative in the State. President and Governors of States are vested with powers to provide pardon. Parole is also known as a premature release of offenders after strict scrutiny of long term prisoners, under the rules laid down by various governments. Premature release from prison is conditional subject to his behaving in society & accepting to live under the guidance & supervision of Parole Officer.
It seems the word “Parole” which means a term to designate conditional release granted in a penal institution” in the encyclopedia of the social sciences, is used in different senses in different States. The State of Uttar Pradesh, Madhya Pradesh, Punjab & Haryana have legislation on this subject. A set of Model Parole Rules have been framed sometimes ago by the Crime Advisory Board on correctional services with a view to preserving a basic uniformity of approach in the country[xxxii].
Although there is not much opposition to the theory or ideological basis for restorative or transformative justice, there is some contention as to whether or not it will work in practice. Some views on this are represented by Levrant, who thinks that the acceptance of restorative justice is based more on “humanistic sentiments” rather than restorative justice’s effectiveness.
It is true that the Reformative theory can work fruitfully in case of reformation of non-habitual offenders. But in some cases, it does not work smoothly, because a hardcore criminal cannot be reformed. If we accept it then criminals will repeat the same type of offense. That is why; instead of trying for the reformation of his criminal mind he should be punished. Thus, it can be said that the Reformative theory will be more effective if it is intended to supplement normal punishment, rather than replace it altogether.
The reformative theory suggests that punishment is only justifiable if it looks to the future and not to the past. It should not be regarded “as setting an old account but rather as opening a new one”. Hardened and professional offenders hardly respond favorably to reformative ideology because they are incorrigible offenders with whom crime is not so much a bad habit but it is an ineradicable instinct in them. For such offenders, deterrent punishment is perhaps the only alternative.
Even if criminals are treated as patients some of the hardened criminals are incurably bad. If prisons are turned into a comfortable place, the prison might turn into dwelling place, at least for poor people. Even with the application of the theory crime rate is ever increasing. Salmond says that “the application of the purely reformative theory leads to astonishing and inadmissible results”.
Reformatory theory of punishment has very limited application. Psychologists say that behavior which comes under the domain of habit cannot be changed so easily. Moreover, this theory cannot be applied in every society. It is contrary to principles of Natural Justice, the aggrieved may not be rewarded but the guilty person must not go unpunished. It is wrong to prescribe that punishment has any one single objective.
Crime & conflict result in harm to people, Restorative Justice seeks to heal & right the wrongs, focusing on the needs of the harmed & those responsible for the harm. It encourages accountability, healing & closure for all.
The reformative theory is also known as rehabilitative sentencing. The purpose of punishment is to:-
“Reform the offender as a person, so that he may become a normal law-abiding member of the community once again. Here the emphasis is placed not on the crime itself, the harm caused or the deterrence effect which punishment may have, but on the person and the personality of the offender.”
Rehabilitation seeks to bring about fundamental changes in offenders and their behavior. As in the rehabilitation generally works through education and psychological treatment to reduce the likelihood of future criminality. In terms of the theory, offenders largely commit crime because of psychological factors, personality defects, or social pressures.
Sentences are consequently tailored to the needs of the individual offender, and typically include aspects of rehabilitation such as community service, compulsory therapy or counseling. This theory favors the humanitarian sentiments of the age. Therefore, punishment is imposed for the welfare of the criminal himself. This Theory aims at transforming the criminal minds in a way that the inmates of the peno-correctional institutions can lead the life of a normal citizen.
It aims at their rehabilitation and conforming to the norms of the society; into the law-abiding member. This theory condemns all kinds of corporal punishments. It looks at the seclusion of the criminals from society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first-time criminals as relies upon humanitarian modes of punishment in the case of hardened criminals, this theory may not work with the effectiveness.
A recent increased public awareness of alternatives to the classic prison system has created a favorable social climate for the growth of reformative justice in the public domain. The growth of the victim identity and victimization of our society has created satisfactory conditions for public acceptance of the ideas of restorative justice, especially through mass media.
Formatted on March 14th, 2019.
[i] “Crime is present in all societies of all types; there is no society that is not confronted with the problem of criminality. Its form changes; the acts thus characterized are not the same everywhere but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression. If in proportion as societies pass from the lower to the higher types the rate of criminality tended to decline, it might be believed that the crime, while still normal is tending to lose this character of normality. (Actually) it has every where increased. ….T here is; then, no phenomenon that presents more indisputably all the symptoms of normality, since it appears closely connected with the conditions of all collective life.” See Criminology : Crime and Criminality (1 978), p.465-466
[ii] Reckless W.C Criminal Behaviour, p. 253.
[iii] Westermarck, E. The Original and Development of the Moral Ideas, p. 169
[iv] Max Greenhut, Penal Reform, A Comparative Study, p. 3
[v] AIR 1978 SC 1542.
[vi] AIR 1965 SC 444
[vii] AIR 1976 SC 2566
[viii] Sebastian Hongrey v. Union of India AIR 1984 SC 1026
[ix] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
[x] Mahajan,V.D. : Jurisprudence & legal Theory,(5th ed.) p.147
[xi] 1997 Cr.L.J. 743
[xii] State of U.P. v. Ram Sagar Yadav, AIR 1985 Sc 416
[xiii] Joginder Kumar v. State of U.P. 1994 Cri L.J. 1981
[xiv] Reported in Hindustan Times dated December 17, 1997
[xv] A.C. Ewing, (The Morality of Punishment), p. 73.
[xvi] Jahangir M. Sethna, “Society and the Crime”, 4th Ed.., p. 301-302
[xvii] Sheela Barse v. Union of India AIR 1986 SC 1773
[xviii] Sheela Barse v. The Secretary, Children Aid Society AIR 1987 SC 656
[xix] Section 2(K)
[xx] Para 367 of the Report
[xxi] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
[xxii] The Prisons Act, 1894, S. 3(1).
[xxiii] The Constitution of India, 1949, Schedule 7 List II, Entry 4.
[xxiv] The Prisons Act, 1894.
[xxv] Sunil Batra v. Delhi Administration A.I.R. 1978 S.C.1675
[xxvi] Mohammed Giasuddin v. State of Andhra Pradesh, A.I.R. 1977 S.C.1926
[xxvii] V.R. Krishna Iyer, “Justice in Prison: Remedial Jurisprudence and Versatile Criminology” in Rani Dhavan
Shankardass, Punishment and the Prison: Indian and International Perspectives (2000), Sage Publications,
New Delhi, p.58.
[xxviii] It was abolished in England in 1827.
[xxix] S.P.Srivastava, The Probation System-“An Evaluative Study”(1987), p. 31-32
[xxx] AIR 1963 SC 1088
[xxxi] Sir Robert Gross: The English Sentencing System, p. 33
[xxxii] Journal of Social Defence, 1972, p. 13