Bridging The Gap Between Theory And Practice - Implementation Of Reformative Theory In India
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Category: General Law
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BRIDGING THE GAP BETWEEN THEORY AND PRACTICE:
IMPLEMENTATION OF REFORMATIVE THEORY IN INDIA Shaurya Singh, BBA LLB (H), School of Law, Christ (Deemed to be University), Lavasa, Pune
ABSTRACT
The current research paper has analysed applying the reformative theory of punishment in Indian prisons to check whether there is a gap between theory and practice. The opinion of the judiciary through case laws and the government's policies have also been analysed. The research finds that India has come a long way in understanding the need for this theory but still lacks its implementation due to logistical issues, lack of trained staff or mere social attitude of the public. The research has identified the factors that need to be worked on, causing the disconnect resulting in the theory not being a complete success. Keywords: Reformative theory, recidivism, rehabilitation, prison reforms, open prisons, weekend prisons Research Objective ● To check the scope of reformative principles incorporated in the Model Prison Manual 2016.
● To check the effectiveness of prison concepts like open prison and weekend prison in India. ● To identify the gaps in the implementation. ● To identify the instances where it is being followed fully. Research Methodology This study has employed a doctrinal approach, this approached has been used to analyse the application of reformation theory since time and the status if the same in the current Indian scenario. Various case laws along with policy decions, newspaper reports (online) were analysed. Quantitative data of the prison budget allocation for 2021-22 has also been analysed. Statement of Problem Most nations have adopted the reformative theory as it focusses on the reformation and the eventual rehabilitation of a convicted prisoner back into society, along with a focus on reducing the cases of recidivism.
Several steps and policy decisions have been taken to implement the same in India but various challenges have been an obstacle in creating a complete and effective criminal correctional system which prevents the bridging of the gap between theory and practice of reformation. Introduction “No one is born a criminal, a criminal is the product of the social and economic circumstance”. Punishment is directly in relation to criminal justice because of which, certain acts are classified as ‘crimes’. Throughout history, it would have been difficult to “control” the certain barbaric or animalistic tendencies of human beings without punishment. In fact, emperors and kings kept their subjects in line through punishment and to maintain authority over them. Therefore, expecting people to abide by the laws of the land without fear of punishment lurking over them is too far-fetched.
With the passage of time, developments in the field of Criminal Science brought about a radical change in Criminological thinking. According to this theory, crime is like a disease, and a criminal is like a patient. This theory strongly believes that the adamant and habitual criminal can also be changed into law-abiding citizens by reformation. This is a fresh approach towards the problem of crime and criminals. Thus, according to this theory, another possible goal of punishment is the reformation of the offender. Reformation is synonymous with ‘improvement’, ‘modification’, ‘transformation’, ‘alteration’, ‘change’, ‘development’, and ‘amendment’. Reform means change, improving somebody by correcting faults, and removing inconsistencies and abuses.
This theory imposes modern methods or values, adopts a more acceptable way of life and mode of behaviour or persuades or forces somebody else to do so. Reformation is the act or process of reforming somebody, especially a general improvement in his behaviour. This theory considers the causes of crime like social, economical, physical or psychological factors first and tries to analyse the punishment based upon that. It strongly believes that a criminal is a product of social and economic circumstances. He is not a born criminal. The causing factors are within the society inherently, first, these causes should be removed then the crime rate will surely go down. The criminal is in need of a doctor-cum-guide and not of the jailer. This theory says that the offender should not be punished but he should be treated and converted into a law-abiding citizen by giving training.
He should be trained to rehabilitate in the society after completion of his sentence. The aim of reformative theory is found in the poem of George Bernard Shaw, which reads “If you are going to punish a man retributively - You must injure him, If you have to improve him - You must improve him, And men are not improved by injuries. ” This poem was quoted by the Supreme Court in the case of Mohd. Giasuddin v. State of AP. 1 “The Ministry of Home Affairs had prepared a Model Prison Manual, 2016 to ensure uniformity in the basic principles governing prisons and had shared it with all States/ UTs for adopting it in their respective jurisdictions.
The Ministry of Home Affairs had also reviewed pre-independence era acts, ‘The Prisons Act, 1894’, ‘The Prisoners Act, 1900’ and ‘The Transfer of Prisoners Act, 1950’ and prepared a ‘Model Prisons and Correctional Services Act’ in the year 2023 with the objective of holistically addressing all relevant issues relating to prison administration. The ‘Model Prisons and Correctional Services Act’ has been shared with all States and Union Territories on 10. 5. 2023 with the request to take advantage from the same
1 AIR 1977 SC 1926
and enact a Prison Act in their jurisdiction, with such modifications which they may consider necessary”. 2 This paper explores the innovative approaches that give hope in bridging the gap between theory and practice, and analyses the gaps in the application of reformative theory in the Indian prison system. Origin and Current Status This is the most recent theory which has spread all over the world after 1948 after the adoption of Universal declaration of Human Rights3. The modern criminologists, penologists, psychoanalysts, sociologists are in support of this theory. As against deterrent, retributive and preventive theories the reformative approach seeks to bring about a change in the attitude of offender so as to rehabilitate him as a law-abiding member of society. Thus this punishment is used as a measure to reclaim the offender and not to torture or harass him.
This theory does not merely punish the offender because of their past but punish them in the hopes of them being better in the future. It means that modern penologists are of the opinion that the punishment is justifiable if it looks towards the future and not only to the past. The reformists advocate humane treatment for the inmates inside the prison so that they get adjusted with society later on. Thus two most important elements of this theory are I) the offender should be treated humanely in the prison and II) They should be trained in the prison to maintain themselves once they complete the sentence under which they have come to the prison. Undoubtedly, modern penologists reaffirm their faith in reformative justice but they strongly feel that it should not be stretched too far.
The reformative method has proved useful in cases of the juvenile delinquents and the first-time offenders. Hardened criminals, however, do not respond favourably to the reformist ideology. It, therefore, follows that punishment should not be regarded as an end in itself but only a means. The end being the social security and rehabilitation of the offender in the society. Theory in Action Realising the significance of Gandhi’s dictum that “Criminals should be treated as patients in hospitals and jails should be hospitals admitting such patients for treatment and cure”, the
2 Ministry of Home Affairs | Government of India,
https://www.mha.gov.in/en/divisionofmha/Women_Safety_Division/prison-reforms (last visited Nov 12, 2024.
3 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/810 at 71 (1948)
judiciary has upheld this thought which can be observed in many case laws. In Saradhakar Sahu v. State of Orissa4, the Supreme Court observed, that the reformative theory is in tune with the reformative trend of modern criminal justice to rehabilitate young offenders as usual citizens. In Mohd. Giasuddin v. State of AP5, the Supreme Court observed, that the criminal can ordinarily be redeemed, and the State has to rehabilitate rather than avenge. The subculture that leads to anti-social behaviour has to be countered not by cruelty but by re-culturalisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society.
Prakash v State of MP6, the Madhya Pradesh High Court, explained, “Criminal jurisprudence dealing with the imposition of a sentence has undergone a change, and the Probation of Offenders Act-1958 is a milestone in progress in the modern liberal trend of reform in the field of penology. ” It is the result of the recognition of this doctrine that the object of criminal law has become more about reforming than punishing individual offenders. In Sunil Batra’s7 case, the Supreme Court observed, “the object of the punishment is to correct the wrongdoer and not wreaking vengeance on him. ” The legislature has implemented modern-day reformation practices like - (i) Open Prisons: This concept of punishment requires minimum security, surveillance, and high walls and requires convicts to stay on community land and allows them to take up employment while serving their sentence.
Rajasthan has the highest number of open prisons in India and has proven this concept. Prisoners who have been observed to have good behaviour in their track record and/or who have served at least one-third of their sentence are eligible to be shifted to open prisons. As per the Rajasthan Prisoner’s Open Air Camp Rules 1972, prisoners can even have up to three family members staying with them. Many such open prisons were established in “gaushalas” to utilise the open spaces and allow the prisoners to work at the cow shelter. By having a functional social environment, the integration of prisoners back into society as reformed was made possible. Former Supreme Court Judge Madan B Lokar said that the time to implement a more humanitarian approach had arrived, and rehabilitation of prisoners could be done by making available employment opportunities to the prisoners.
8Therefore, showing faith in the inmates
4 1985 Cr LJ 1591
5 Ibid
6 AIR 1993 SC 65
7 AIR 1980 SC 1579
8 Mohammed Iqbal, Punish to Reform
Rajasthan’s Open Prison Model, THE HINDU, Feb. 4, 2023, https://www.thehindu.com/news/national/punish-to-reform-rajasthans-open-prison-model/article66471142.ece. goes a long way in their reformation. (ii) Weekend Prisons: this punishment model allows the offender to serve their sentence on the weekend so that the offender can maintain their employment and relationship with family members during the weekdays. This is another attempt to reduce overcrowding of conventional prisons and even helps in separating mild offenders and undertrials from getting influenced by hardened criminals. This concept has not been implemented in India yet so its effectiveness cannot be analysed when it comes to Indian offenders. Although the Andhra Pradesh government did try to bring the weekend prison in action by forwarding a proposal in
2004 along with a community service proposal, the Union Home Ministry rejected the idea.9
The probation is a part of the reformative process. Many offenders are not criminals, but circumstances make them criminals, and misfortunes are brought within the operation of the judicial system. By extending benefits of probation as per Section 401: Order to release on probation of good conduct or after admonition of Bhartiya Nagarik Suraksha Sanhita 202310, courts encouraged their own sense of responsibility for the future of the accused and saved him from the stigma and possible development of criminal propensities. It is thus in tune with the reformative trend of modern criminal justice to rehabilitate young offenders as usual citizens. One of the merits of the Reformative theory is it simply doesn’t speak about theoretical aspects but is practically implemented by extending assistance to criminals for their rehabilitation.
● To teach any profession in the prison is the first step. Vocational training should be an integral part of it. ● To guide the criminals from prison to establish their livelihood. ● To provide financial assistance to convicts from the government or get help from banks under a scheme. These programmes might reduce the criminal behaviour of the accused and provide security upon him. Criticism of Reformative Theory Many penologists have denounced the “rehabilitative ideal” or the “reformist ideology” as something that practically doesn’t work. Writing about the conditions of prisons in France and
9 Jails to become weekend retreats?, THE TIMES OF INDIA, Jan. 28, 2006,
https://timesofindia.indiatimes.com/city/hyderabad/jails-to-become-weekend-retreats/articleshow/1390164.cms.
10 B.N.S.S.2023 § 401.
Russia, Peter Kropotkin, observed, “prisons are seen as symbols of our hypocrisy regarding rehabilitation”. 11 A point of criticism on the Reformative theory is it thinks too much about the criminals but what about the victims? After all the object of the punishment is “Justice, deterrence and reformation”. Reformative theory takes the step exact in opposite way. If the Reformative theory is applied fully and if the victims feel, that there is no justice if we approach to the judiciary or police, they will take the law into their own hands. A lenient approach towards punishment may not have any effect on people in terms of dissuading them from committing crimes. The reformative theory is far too individualistic in approach without taking into consideration the wider impact of the punitive scheme on people at large in the society.
Punishment is the highly subjective nature of individualized punishments and the resulting inequality in sentencing the outcome. Today, everything has become materialistic. Due to increased population and cut-throat competition, human beings are more aggressive and less sensitive towards others. The financial gap is increasing day by day and it leads to an increase in crime. Reformative theory doesn’t have an answer to all these issues. Challenges in Implementation Overcrowding: “In 2022, there were 573220 prisoners in various prisons of the country against its total authorized capacity of 436266 prisoners. Out of this, the number of undertrial prisoners was 434302, comprising 75. 8% of the total prison population. The prisons in India are overcrowded to the extent of 131. 4%”.
12 It is a primary obstacle in the application of reformative theory as hardened criminals and criminals with minor offences cannot be separated which leads to reformation and rehabilitation programmes not being properly enforced. Security is the only concern of the police administration and not rehabilitation: This can be observed by the data of the prison budget allocation 2021-22. Only 10. 5% of 7619 crore13
11 Kamenka & Brown
“Ideas and Ideologies Law and Society”, p. 112
12 Bereau of Police Research and Development, Ministry of Home Affairs, Government of India,
https://bprd. nic. in/uploads/pdf/202401261018569615566Overcrowding23. 01. 2024 13 Committee Reports, PRS LEGISLATIVE RESEARCH, https://prsindia. org/policy/reportsummaries/prisonconditions-infrastructure-and-reforms (last visited Nov 15, 2024). was utilised for rehabilitation programmes. Source: julius. ai14 Lack of trained personnel: As per the Model Prison Manual (2016), there should be at least 1 officer for every 200 inmates in correctional institutes. “On the ground 11 states/UTs record no sanctioned posts for correctional staff, an increase from 7 states/UTs which had no correctional staff in 2019. The states that do have specialised staff like social workers have very few.
Only Chandigarh and Tamil Nadu meet the Model Prison Manual’s benchmark of 1 correctional officer for every 200 prisoners, and six states- Rajasthan, Gujarat, Jharkhand, Telangana, Uttar Pradesh and Tripura - have one correctional officer for more than 1000 prisoners. Nationally, on average, one correctional staff member serves 625 inmates. ”15 Social attitude: The general perspective of the public is to get avenged for the wrong done to them, and no one cares enough about any sort of reformation. 16 This perspective is, therefore always in favour of punitive measures over reformation and influences certain policy decisions which also affects resource allocation which can be observed by the graph of the prison budget for the year 2021-22. Moreover, this also affects post-release support to reformed prisoners which increases the scope of recidivism.
Conclusion In the words of Honorable Justice Krishna Iyer, “A holistic view of sentencing and a more exquisite perception of the effect of imprisonment gives short shrift to draconian severity and self-defeating. Perhaps, the time has come for Indian criminologists to rely more on Patanjali 14 julius. ai (prompt: Create a graph using the limited data we have from 2021-22 (total budget of Rs 7,619 crore)
15 INDIA JUSTICE REPORT
RANKING STATES ON POLICE, JUDICIARY, PRISONS AND LEGAL AID, (2022), ijr.org 16 Mrinal Satish, Bad Characters, History Sheeters, Budding Goondas and Rowdies: Police Surveillance Files and Intelligence Databases in India, 23 Nat'l L. Sch. India Rev. 133 (2011).
Sutra as a scientific and curative for criminogenic factors than on the blind jail term set out in the penal code and that may be why western researchers are now seeking Indian yogic ways of normalizing the individual and the group”. Justice Krishna Iyer focuses on certain elemental factors of great significance to criminology thoughts, particularly in our country. To him, the Gandhian diagnosis is the key to the pathology of delinquency and the therapeutic role of punishment (Hate the crime but not the criminals). The theory treats every man as someone who is born good and so the modern principles of penology like reformation and rehabilitation of the offender ought to guide and inform the Indian criminal courts. Society has come quite far since the Pre-Classical School of Thought of Punishment, and a more empathetic approach is needed.
There are plenty of successful avenues of reformative theory in practice that can be observed, like open prisons, which give some hope as they solve most of the challenges discussed above. However, enforcement is still lacking in other aspects, such as the lack of trained jail staff. The Training Manual of Basic Course for Prison Wardens
2017 includes topics like personality development for wardens and how the demeanour of
wardens should be while dealing with prisoners, but no government authority checks the accountability of the wardens and overlooks whether its being followed or not. The prison authorities are required to maintain the standards as per the Model Prison Manual but still, reports of unhygienic and inhumane conditions are rampant. There is also a need for more women's jails as stated by a superintendent of a women's jail as women prisoners are often confined to a small room within a men’s prison. 17 Prisoners, especially female prisoners require government support in rehabilitation as after they are done serving their time, they cannot find jobs to support themselves as they are shunned by society which makes it more and more difficult to find employment and eventually leads them back to a life of crime.
In 1957, the Government of India appointed the All India Jail Manual Committee, which observed that the problems during imprisonment could be solved neither by making punishment more deterrent nor by making it weaker and more diluted. There are mechanisms in place that apply the theory in practice but it is still not enough to bridge the gap between them in a fuller sense. Accountability of the prison authorities needs to be checked along with
17 Tales from former inmates
What life is like in a women’s jail in India, HINDUSTAN TIMES (2017), https://www.hindustantimes.com/india-news/tales-from-former-inmates-what-life-is-like-in-a-women-sjail-inindia/story-UBBSj0N5yz2VskZpqgGiLK.html. other implementation issues to achieve the aim of reformation and rehabilitation and overall build an effective correctional system in India.