Hate The Sin, Not The Sinner - An Approach To Reform The Convicts Of Crime
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Category: Criminal Law
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HATE THE SIN, NOT THE SINNER - AN APPROACH TO
REFORM THE CONVICTS OF CRIME
Pranav Bajaj, University Institute of Legal Studies, Panjab University, Chandigarh
ABSTRACT
The reformatory theory of justice focuses on the reformation of the individual who has committed any offence so, that his/her criminal mindset can be transformed and the criminal can develop the perspective of a lawfollowing person. The theory takes a broader view that it punishes the offender and provides justice to society. It aims to control all those issues which lead a person to commit a crime. There are various approaches and methods adopted by governments and courts to reform the offenders under this theory. Moreover, reformative justice extends beyond individual rehabilitation to encompass systematic reforms aimed at inclusivity. The theory tends to eliminate all the injustices, biases and disparities so, that the offence as well as the offender can be reduced from society. Keywords: Reformatory Theory, Crime, Society, Law, Criminal Law.
Introduction “Hate the sin, not the sinner”, are the words of the father of the nation Mahatma Gandhi, a luminary who always advocated for change in society in a peaceful manner. The theory of reformative justice is also based on the idea of bringing change, the change in the person who has committed a crime and is serving deeds of his act so, that once the person gets released he/she can live a life of a normal person without committing any other offence. To understand the concept of reformative justice it is important to know about some terms which are related to this.
The first one is the word crime, the literal meaning of the word crime which can be traced from the criminal textbooks is “unlawful act of the individual”1 or it can be defined as “an act committed or omitted in violation of public law forbidding or commanding it”2, as defined by Eminent Jurist Sir William Blackstone in his textbook commentaries on the laws of England. The word crime can be understood as an act which the law prohibits or which when committed calls for punishment. There can be various types of crimes such as crimes against property, crimes against women, cyber-crimes, petty offences etc. The next terminology which is essential to understand is Punishment as the whole theory revolves around this term, the word punishment can be defined as “the penalty for the transgression of law”3.
The basic idea of imposing punishments on the wrongdoer by the courts is that the offender could understand that he/she has done any wrong and repent for his/her act. When the punishment is pronounced at that time, two basic points are kept in mind by the courts which are the sociological point of view and the other theories of punishment, there are several theories of punishment which are the Deterrent theory, retributive theory, reformative theory, preventive theory, etc. What is the Reformative Theory of Justice? The Reformative theory means the offenders are punished in a reformative manner rather than giving them pain as a form of punishment. 4 The theory is based on the approach that human beings are essentially good law-abiding creature who temporarily either under the influence of certain internal or external factors commits a crime.
5 The theory looks upon the psychological condition of the criminal who committed the crime and focuses more on reforming and
112 P.S.A. PILLAI, CRIMINAL LAW 8 (Lexis Nexis 2014)
2 Id.at 1
3 7 P RAMANTHA AIYAR, CONCISE LAW DICTIONARY 1203 (Lexis Nexis 2020)
4 Sindhuza M.S, Reformative Theory of India- An Analysis of The Need for Revision,6 IJCA, 5919, 5919-5923 (2017)
5 KNC PILLAI, GENERAL PRINCIPLES OF LAW 164 (3rd ed,2024)
rehabilitating the criminal into a person who in future does not commit any crime and giving him a new life. According to the eminent jurist Salmond, “A reformative element in punishment is important and should not be overlooked but at the same time, it should not be allowed to assume undue importance. He says that crime cannot be treated as a disease”. 6 The main objective of this theory is to eliminate the thinking of doing wrong acts from the mind of the wrongdoer. Approach of the Theory. The reformative theory is one of the modern theories of punishment. It has taken divergence from the other theories and has the core perspective of reforming the convict or the wrongdoer instead of severely punishing them. The theory focuses on how a person who has committed a wrong can be reformed so that he/she becomes a law-abiding and prudent citizen.
To reform the convict the authorities conduct various activities for the convict like recreational activities, art activities, educational and vocational training, yoga and meditation etc. The theory also focuses on the reformation of the recidivists through moralization, the use of the clinical method of reformation, the group relation method of reformation and methadone maintenance therapy. 7 The use of a reformative approach on the recidivists thus shows that theory always has an approach to reform the first-time wrongdoers and the recidivists by backing those people to change them through a method which can psychologically help them.
Other two very common and famous ways also play an imperative role, are Probation, Parole, Admonition and Pardon these two ways help in rehabilitation as these methods allow the person to inculcate again within the society with the checkpoint of the authorities on them so, that they do not indulge again in any unlawful act. Need of the Theory The title of the article begins with a quote “Hate the sin, not the sinner”, meaning thereby, the wrong should be eliminated from the society, not the wrongdoer. The need for theory in the modern world was required because the other theories of punishment focus on the ways that also exclude the wrongdoers from again been rehabilitating in society. The other point which leads to the need for this theory is that the implementation of other theories is unable to curb
6 DR.AVTAR SINGH INTRODUCTION TO JURISPRUDENCE 179(4th ed, 2013)
71 ANIL TREHAN, PENOLOGY & VICTIMOLOGY A PERUSAL 214 (Shree Ram Law House, 2011)
the crime in the society so, with the hope that the theory could reform the criminals, this concept was introduced in the criminal jurisprudence. The theory also aims to promote social justice in the people by providing them with a chance and a space to rehabilitate themselves again in society. Is the Theory Making its Way? There is no doubt that the purpose of the reformative theory was to make offenders develop skills of resisting themselves to commit the wrong again. But is it transforming the people or is appropriately used by the state to rehabilitate the offender? According to the data for the year 2022, there are a total of 32% of repeat offenders in the country. 8 According to the data collected from the 33 countries of the world represents reconviction rate of people around the world is between 18%-55%.
9 Though the theory has been upheld by many jurists around the world, but then also the world as well as the Indian system is experiencing an increase in repeat offenders. The theory has its limitations which is unable to curb the offenders from committing the crime. It is unable to make people understand the negative impact of the crime on them as well as on society. The system has also been unable to process the idea of the reformative approach as in the Indian context mainly the state tends to apply this approach on the basis without going into the degree of crime that the person has been convicted of. The government has released 11 convicts of the Bilkis Bano case based on this theory without considering the level or degree of crime they have committed10.
The theory is unable to make its way because of the individualised treatment model in practice, they are more punitive and unjust. Peter Kropotkin writing about the condition of Russia and France states that “prisons are seen as symbols of our hypocrisy regarding rehabilitation our intolerance of deviants, or our refusal to deal with the root causes of crime such as poverty, discrimination, unemployment, ignorance, overcrowding11 and so on. The authors of an American study also criticised this ideology by stating “It never commended more than lip service from most of its more powerful adherents. Prison administrators who embraced the rehabilitative ideal, have done so because it increased their 8Recidivism During the Year 2022, TIHAR PRISONS https://tiharprisons. delhi. gov.
in/tiharprisons/recidivism duringyear2022#:~:text=Around%2032%25%20of%20the%20prison,in%20contact%20with%20other%20priso ners. 9 Denis Yukhnenko, Leen Farouki, Seena Faze, “Criminal recidivism rates globally: A 6-year systematic review update” 88 JCRIMUJS (2023). 10 Bilkis Bano Case: What Is Reformative Theory Of Punishment Cited By Gujarat Govt In Early Release Of Convicts (JAN 8. 2024, 2:46 PM) https://www. outlookindia. com/national/bilkis-bano-case-what-is-reformativetheory-of-punishment-cited-by-gujarat-govt-in-early-release-of-convicts-news-341657
11 ROBERT BROWN, IDEAS AND IDEOLOGIES: LAW AND SOCIETY 112 (1978)
power over inmates”. 12 The other limitation of this theory is that can it be applied to hardcore criminals who have committed heinous crimes in society, there is still a debate or scepticism about whether this theory can be proven as beneficial for them when they again enter the social hemisphere. Introduction of New Criminal Laws The Indian government implemented the new criminal laws on 1st July 2024, which were introduced back in 2023. The three new laws i. e. “The Bhartiya Nyaya Sanhita, The Bhartiya Sakshya Adhiniyam and The Bhartiya Surakasha Sanhita. ” The aim of the government behind implementing these new laws is that the reformative theory of justice can be applied to the Indian Legal System.
The Parliament has introduced a new form of punishment in the Bhartiya Nyaya Sanhita, which focuses on the reformation of the wrongdoer, by providing the punishment of the community service to the first-time offenders. The objective behind this is that the person can be reformed, instead of giving him the jail term. The major difference between the Indian Penal Code and The Bhartiya Nyaya Sanhita is that the latter provides rehabilitation and reintegration of the offenders back into society. This can be seen as an approach towards reformative justice but still, the question is whether this Sanhita will be able to bring change in the legal system because its implementation requires a lot of work to be completed such as sensitizing the jail staff and updating jail manuals. The judicial officers have to apply this reform in their daily business while pronouncing the judgments.
The counsels arguing their matter have to focus that the accused can be pushed towards reformation instead of any other punishment. Conclusion Thus, the fundamental idea of the theory is to reform the convicts of the crime while they are serving their punishments. The theory aims to reproduce a person in society as an asset not again as a liability. Governments and courts across the world have followed this theory by providing laws which aim at the reformation of the criminals. The courts have time to time focused more on the approach of reformation, in the cases where it felt that the chance to the person could be given so, that he/she can focus again on establishing his life in a well-settled 12 An American Report on Crime and Punishment entitled. “Struggle For Justice” prepared by American Friends Service Committee (New York 1971)
manner. Though the theory has its criticisms it can be corrected by taking the broader approach, by sensitizing the staff which is taking care of the reformation of the offenders, by resolving those issues which led them to commit a crime so, that the crimes can also be eliminated from the society.