22 Purpose of the Prison System in India

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes
2. Introduction (Voice Over)
3. Prison System in India
   1. 3.1 Origin of the Administration of Justice
   2. 3.2 Theories of Punishment
4. Summary

1.Learning Outcomes

After studying this module, the student will:

• Understand the rationale behind the prison system in India;
• Have an appreciation for the different laws that enumerate the rights of prisoners in India.

2. Introduction (Voice Over)

Justice Krishna Iyer, a well renowned judge, once said that despite being convicted of a crime, prisoners still enjoyed the same rights as free men. The purpose of this module is to set out what some of these rights are, by making reference to various laws that have been passed by Parliament. Beginning with the Constitutional guarantee to life and liberty, the module will look at laws ranging from the Prisoners Act to the Repatriation of Prisoners Act. But first, let us understand why we incarcerate people in the first place; is it because we want to punish them, or is it because we want to reform them? The rights of prisoners in any system generally flow from the answer to the aforementioned question.

3. Prison System in India

According to Salmond “Law may be defined as the body of principles recognized and applied by the state in the administration of Justice.”

Law in its distinct forms is used by the State in order to administer justice, so that peace and harmony can be maintained in the society.

An important ingredient of the State’s function is the protection of the right of every individual while enforcing his corresponding duty. Therefore if an individual fails to carry out his so called corresponding duty or legally enforceable duty then in that case the State has got the authority to punish that individual.

Justice- The concept of justice is as old as origin and growth of human society itself. The social nature of man demands that he must live peacefully in society. While living so he experiences a conflict of interests and expects rightful conduct on part of others. That is why Salmond says that “though every man wants others to be righteous and just towards him, he himself being selfish may not be reciprocal in responding justly”. That is why some kind of external force is necessary for maintaining an orderly society. According to Salmond, without justice an orderly society is unthinkable.

The concept of justice became more conspicuous with the growth of the state, for example we have in the present era different types of justice and they are as follows-

• – Civil Justice.
• – Criminal Justice.
• – Economic or Social Justice- Social justice is justice exercised within a society, particularly as it is applied to and among the various social classes of a society.
• – Distributive Justice- It concerns the nature of a socially just allocation of goods in a society. A society in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice. For example, when workers of the same job are paid different salaries, group members may feel that distributive justice has not occurred.

3.1 Origin of the Administration of Justice

• 1st Stage– In this stage the society was primitive and private vengeance and self-help were the only remedies available to the wronged person against the wrongdoer, where the wronged person could get his wrongs redressed with the help of his friends and relatives.
• 2nd Stage– In this stage the development of the society was characterized by the State coming into existence in its rudimentary form when its functions were only persuasive in nature because here it did not have any enforcing power with which it could punish the wrongdoer.
• 3rd Stage– In this stage the wrongs could be redressed in the society by payment of compensation by the wrongdoer to the victim. Thus up to this time justice remained private in nature where the State had no compulsive force.
• 4th Stage– In this stage the State exerted its authority and took upon itself the responsibility of administering the justice and punishing the wrongdoer using its force whenever necessary. In this stage there was transformation of justice from private to public. In other words a wrong done against an individual wasn’t considered as a wrong against him only but was actually considered as a wrong against the state.

Criminal Justice in Ancient India- The importance of punishment has been recognized even under the ancient legal systems of the world for the protection and welfare of the state and its people. Even in Ancient India the King was duty-bound to punish the offender.

According to Manu punishment was the essential characteristic of law as it keeps the people under control, protects them and it remains awake when the people are asleep.Concept of Sentencing in Ancient India- The concept of sentencing was primarily based on-1-  Crime situation,2-  Crime causation,3-  Character and Status of the offender in the society.In Ancient Hindu legal system one of the peculiar features was that the punishment varied according to the offender’s caste or position in the society for example the higher the position of a member in the society, the more severe will be the punishment.3.2 Theories of PunishmentDeterrent Theory– This theory is mainly based on the principle that that punishment should be of such a nature as to put a deterrent effect on the offender and also on the members of the society. This theory punishes the wrongdoer in such a manner that a message is given to the rest of the people through warning that if you commit such an offence as committed by the person being punished then in that case you will be given same punishment. It is due to this reason that the punishment is often given in public places, so that the deterrent effect can be of great magnitude. But even then offences take place for ex. in the olden times whenever a person was hanged in the public or stones were pelted on him until his demise took place, then during such punishments there were some people who used to pick pockets.

The term deterrent can be used in two senses-

• Firstly the punishment of the offender will stop the like-minded persons from committing crimes in future against the society &
• To deter such person from committing further crimes against the society by physically preventing him from doing so.

Under this theory the evil doer is made an example of and serves as a warning to likeminded individuals. The basic principle behind this method is to protect the society from the criminal rather than reforming the criminal.

It is partially preventive because it aims at preventing the further commission of a crime after the crime has already taken place.

Though the deterrent effects of punishment have ceased to a considerable extent, we still fall back upon them when the circumstances render their application necessary. Deterrent as aim of punishment, though it has lost much of its former importance, cannot be said to be entirely eliminated from the policy of the modern court of Criminal jurisdiction. It still survives in the form of death penalty for murder and in the drastic penalties imposed for rape and other crimes which are peculiarly offensive to the moral sentiments as to the sense of the security of the community.

In recent times India on account of increasing criminality due to dowry deaths, bride burning, murder of children to extract ransom, etc, the Supreme Court of India has adopted the theory of deterrence. In Paniben v. State of Gujarat, the Court upheld the conviction of the mother in law for murder by way of bride burning of her daughter in law. The Court contended that it would be unfair in this case if any sympathy will be shown when a cruel act like bride burning is committed.

Criticism of the Deterrent Theory:

• – It does not give a chance to the offender to reform to such an extent so that he can once again become a useful member of the society.
• – It does not meet the ends of justice to a great extent.
• – It shows vengeance to a great extent as a result of which it is not completely acceptable in the modern society.
• – Its idea of reformation is actually barbaric from its very disposition.

Retributive theory-

• Samuel Fleischecker Kant.
• Was prevalent in primitive societies.
• Aim- Evil should be returned for evil without any regard for consequences.
• Instance- An eye for an eye, tooth for tooth, evil for evil.
• Main Emphasis- Pain must be inflicted on the offender by way of punishment which must outweigh the pleasure derived by him from his criminal act.

Position in India- In India to the Supreme Court has applied this theory while awarding capital punishment by postulating the theory of rarest of the rare in order to justify retribution on the person causing injury. Indeed Death penalty serves two purposes i.e. it satisfies the instinct of retribution as well as works as deterrent to the likeminded criminals. Same was held in Jagmohan Singh v. State of U.P AIR 1973 SC 947.

The Law Commission in 1967 has also suggested that the time is not right to abolish death penalty as it fulfills the society’s sense of justice against the criminal and it abhors the heinous crimes and rudely shocks its conscience.

The Supreme Court in SURJA RAM v. State of Rajasthan, AIR 1997 SC 18 held that “Punishment must also respond to society’s cry for justice against the criminal. While considering punishment to be given to the accused the Court should be alive not only to the rights of the criminal to be awarded just and fair punishment by administering justice tempered with mercy as the criminal may deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished.

Criticism-

• – It is contrary to the modern way of penal methods and civilized way of life.
• – Salmond says that retribution in itself is not a remedy for the mischief of the offence by aggravation of it because it involves pain and suffering and is offensive to the considerations of the humanity.
• – Its approach towards the offender is vindictive and out of tune with the modern reformative concept of punishment.

Preventive Theory

• Aim- To prevent the repetition of crime by disabling the offender via measures such as death sentence, imprisonment, forfeiture, suspension of license, etc.
• Aim is actually 2 fold-

Firstly, to deter a person from committing an offence by fear.

Secondly, to prevent the repetition of wrongdoings by disablements of the offender.

• Fichte observed that” the end of all the penal laws is that they are not to be applied. Thus when a land owner puts a notice “trespassers will be prosecuted, he does not want the actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat will render any action unnecessary, as his main aim is nnot to punish for the trespass but to prevent it. However if the trespass still takes place, he shall undertake the prosecution of the trespasser. Thus the real object of the penal law is to make the threat generally known, rather than putting it occasionally into execution.

It is because of this reason that this theory is actually considered as realistic and humane.

• Justice Oliver Wendell Holmes- there can be no case in which the lawmaker makes certain conduct criminal without his thereby showing a wish or purpose to prevent that conduct. Prevention would therefore seem to be the universal purpose of punishment. The law threatens certain pain if you do certain things which intending thereby give you a new motive for not doing them. If you persist in doing them then it has inflict the pain in order that its threats may continue to be believed.
• Salmond- He said that “we hang murderers, not merely that we may put into the hearts of the others like them the fear of a like fate, but for the same reason for which we kill snakes namely because they should be out of the world rather than being in it.”

Position in India- The CrPC and IPC contain provisions concerning punishment of attempts and conspiracies to commit crimes. Thus detention, deportation, imprisonment, exile, disablement and death penalty are the chief modes of preventing the punishments by which the wrongdoer is removed from the scene.

Note- This theory has great utility for India in the prevailing law and order situations against extremists, terrorists, drug peddlers, smugglers, under-world arm gangs of mafias, criminals, communalists, etc, who cannot be controlled or reformed by soft and curative methods. Therefore, subsequently acts such as The Prevention of Money Laundering Act, Sexual Harassment of Women at Work Place Act, 2013, Narcotic Drugs and Psychotropic Substances Act, 1985, etc have been enacted mainly to prevent the commission of the crimes by the criminals mentioned above.

The Supreme Court in D.K. Basu v. State of West Bengal, AIR 1997 SC 610 at 622 observed that “the law of preventive detention was intended to prevent a detainee from acting in any manner considered prejudicial under law and it will be resorted to only and only if the detaining authority has reason to believe that he is likely to indulge in similar pre judicial activity unless he is prevented from doing so by an appropriate order of preventive detention.

Criticism-

• – According to Kant it treats man as a thing and not as a person, as means and not as an end in himself.

Reformative Theory-

It emphasizes on the reformation of the offenders via individualization.

Principle- It is based on the principle that if an offender commits a crime he does not cease to be a human being. Hence, an effort should be made to reform him during the period of his incarceration.

Note- While awarding punishment to the offender the judge may take into account the age, sex, character, antecedents, and also the circumstances under which the offender committed the criminal act. Therefore, it is opposed to the deterrent and retributive theories and is focused on socializing the offender so that the factors which motivated him to commit the crime are eliminated and he gets a chance of leading a normal life in the society.

This theory as compared to other theories actually brings about a positive change in the attitude of the offender so as to bring about a positive change in the attitude of the offender so that he can once again become a useful member of the society or law abiding citizens.

This theory therefore condemns all forms of corporal punishments.

This theory suggests that the punishment is only justifiable if it looks into the future and not the past. It should therefore not be regarded as setting an old account but opening a new one. Therefore the advocates of this theory consider prisonisation not solely for the purpose of isolating the criminals and eliminating them from the society, but also to bring about a change in their mental attitude.

Important Considerations-

The modern trend is in favor of this theory, but this method should not be stretched too far.

The reformative methods have proved to be useful in case of juveniles, first time offenders and woman, and in some cases even sex psychopaths seem to respond favorably to the reformative method of punishment.

Incorrigible offenders such as hardened criminals, habitual offenders, professional offenders, cannot be cured by this theory because for such offenders deterrent punishment is the only solution.

Its application will take place after taking into account time, place and circumstances.

The reformation techniques have increased the power of the police officials over the inmates.

Examples Probation, parole, open prisons, vocal training, and education in the prisons.

According to this theory the punishment should be directed to minimize the suffering to the offenders and at the same time develop social morals and discipline among citizens. In other words it should not be intolerably severe nor unrealistically lenient.

4. Summary

The prison system in India to a large extent is based on primitive laws that are no longer in consonance with the current human rights jurisprudence. Though some steps have been taken by legislature to fix this problem, and courts have also given some direction to the movement by giving directions in its various judgments, we have a long way to go before we reach the desired state where criminals are sent to prison for reformation and not to quench the thirst of a retributive society.

Reference

• D.K. Basu v. State of West Bengal, AIR 1997 SC 610
• Committee on reforms of Criminal Justice system [Ministry of Home Affairs, India 2003]
• http://shodhganga.inflibnet.ac.in/bitstream/10603/21634/11/11_chapter%205.pdf
• http://bprd.nic.in/writereaddata/linkimages/5261991522-Part%20I.pdf