About the Author:Priyal SepahaFifth-year student, Symbiosis Law School, PuneAbstract
Reformative theory of punishment is widely being accepted and implemented theories of punishment around the world. It is backed by the ideology that prisons should be converted into reformed homes. The motives behind the offences must be examined; there should be made a way so that the offender could go back to mainstream society. As against the retributive, deterrent and preventive theories of punishment, the reformative approach to punishment as a measure to reclaim the offender emphasizes rehabilitation so that the offenders are transformed into good citizens.
This paper attempts to firstly, understand the concept and purpose of punishment, secondly, highlight the jurisprudential aspect of penology, thirdly, analyze the reformative theory of punishment in India through institutionalization and Courts and lastly comment on how this form of punishment is well suited in the current social scenario.
Keywords: reformatory, punishment, jurisprudence, rehabilitation
Introduction
When it comes to criminal sanctions, what people believe to be appropriate is primarily determined by the theory of punishment to which they subscribe.[1] That is, people tend to agree with the theory of punishment that is the most likely to generate the outcome they believe is the correct one. Austin considered sanction as an essential ingredient of law. It is only through sanction that obedience of law can be secured.[2] The sanction is nothing but inflicting pain or injury upon the wrongdoer.[3] This coined the concept of punishment in jurisprudence.
Nowadays, the trend is towards the treatment of the offenders. Criminologists all over the world profess that criminals are as good or rather as bad as patients, and they need to be treated, not punished.
The concept of punishment
In primitive times, crimes were mainly attributed to the influence of evil spirits, and the principal purpose of punishment was to placate the gods.[4] Later, in the evolution of punishment, more stress was laid on social revenge, because crime as considered a willful act of a free moral agent.[5] Society, outraged at an act of voluntary perversity, indignantly retaliated.[6] Thus, society started punishing primarily for vengeance or to deter or in the interest of a just balances of accounts between the ‘deliberate’ evil-doer on the one hand and an injured and enraged society on the other. According to Gouldner, members of society identify themselves with the victim. Hence, the urge to punish the offender.[7]
Punishment – the jurisprudential aspect
The necessity of punishment has always been upheld; however, what and how this punishment is to be inflicted and what are the objectives of the penal system have varied answers. Theories are propounding various aspects of punishments and its effects.
Five principle theories or objects of punishment are –
(i) to fit the punishment to the crime – the retributive or denunciatory theory of punishment,
(ii) to deter the potential offenders by example from committing the same offence – general deterrence,
(iii) to deter the particular offender from deterring again – specific deterrence,
(iv) to prevent the particular offender from injuring society again, by incarcerating him for an extended period – preventive theory, and lastly,
(v) to enable the offender to take his place as a responsible and law-abiding member of the society- the rehabilitative theory.
Reformative theory
The object of punishment has been considerably under the process of changes from the last centuries because of the ‘welfare state’ concept. [8]Let us give a human touch to criminal law and reduce the brutalities of punishment is today’s philosophy of law. This theory states that the object of punishment should be reformatory. The offender should be reformed. The prisons should be converted into reformed homes. Reformist looks at sanction as an instrument of rehabilitation and tries to mould the behaviour of criminal on the premises that a criminal is not born but made by the environment of the society. [9]The motives behind the offences must be examined; there should be made a way so that the offender could go back to mainstream society. Therefore, it is the responsibility of society to reform him by adopting specific suitable methods. The increasing understanding of the social and psychological causes of crime has led to a growing emphasis on reformation rather than deterrence. Less frequent use of imprisonment, abandonment of short sentences and attempt to use prison as training rather than a pure punishment, and more significant employment of probation, parole and suspended sentences are evidence of the reformative trend. [10]
Nature and scope
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. [11]
Indian Scenario
The major thrust of the reformist theory is the rehabilitation of inmates in penal institutions so that they are transformed into law-abiding citizens. It focuses more considerable attention on human treatment of prisoners inside the prison. It suggests that instead of prisoners being allowed to idle in the jail, they should be taught appropriately, educated and trained to adjust themselves to normal life in the community after their release from a 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 prisonization not solely to isolate criminals and eliminate them from society.
Few of the modern reformative techniques of punishment are primarily devised for the treatment of offenders according to their psychological traits such as:
(i) probation,
(ii) parole,
(iii) indeterminate sentence,
(iv) admonition and
(v) pardon. [12]
The reformative methods have proved useful in case of juvenile delinquency, first offenders and women. Sex psychopaths also seem to respond favourably to the reformative method of punishment. More recently, the reformative theory is being extensively used as a method of treatment of mentally deprived offenders. This present trend to treat the offender rather than to punish him is called therapeutic jurisprudence.[13]
Judicial Interpretations
In the words of 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 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[14].
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 and the therapeutic role of punishment. It treats the whole man as a healthy man, and 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.[15]
In the case of Dhanraj Saini and Anr. v. State of Rajasthan[16], where the condition of the reformative program, i.e. parole was violated the court said that in case either of these conditions was violated, the state would be free to re-arrest the petitioners and to require them to undergo the remaining part of their life imprisonment.
There are a number of objections against the reformative theory. Some offenders are so corrupt, base and mean persons that they cannot be set right even by all possible human agencies. The reformatory theory will fail for such offenders.
The Supreme Court in Narotam Singh v. the State of Punjab[17] has rightly said that the reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to serve social justice.
However, in M.H. Hoskot v. the State of Maharashtra[18], the Supreme Court cautioned the judiciary for showing more lenience to offenders based on the reformative theory that would amount injustice to the society. Offences like serious economic offences give rise to a need for balance between the security of the society and rights of the offenders.
In Sunil Batra (II) v. Delhi Administration [19], the court observed – “The rule of law meets with its waterloo when the state’s minions become lawbreakers and so the court as a sentinel of justice and the voice of the constitution, runs down the violaters with its writ and serves compliance with human rights even behind iron bars and by prison wardens.”
In 1957, the Government of India appointed the All India Jail Manual Committee. The Committee observed that the problems during imprisonment could be solved neither by making punishment more deterrent nor by making weaker and more diluted. Realizing the significance of Mahatma Gandhi’s dictum that “Criminals should be treated as patients in hospitals and jails should be hospitals admitting such patients for treatment and cure.”[20]
Criticism
The advocates of this theory contended that by a sympathetic and tactful treatment of the offenders, a revolutionary change might be brought about in their characters. According to the view of Salmond, if criminals are to be sent to prisons to be transformed into good citizens by physical, intellectual and moral training, prisons must be turned into comfortable dwelling places. Many incorrigible offenders are beyond the reach of reformative influences, and with whom crime is not a bad habit, but instinct and they must be left to their fate in despair. This gives rise to the thought that the primary and essential end of criminal justice is deterrence and not reformation.[21]
As against the retributive, deterrent and preventive theories of punishment, the reformative approach to punishment as a measure to reclaim the offender emphasizes rehabilitation so that the offenders are transformed into good citizens.[22]
However, in the matter of infliction, deterrent punishment is expected to serve a two-fold purpose- individual and general. It is evident after observation of the system of punishment in various countries that the concept of deterrence cannot be eliminated from the present-day policy of criminal law. However, the reformative theory of punishment has gained considerable importance, and it aims at reformation by stressing that the offender should while being punished by detention, there is a need to him to expose educative, healthy and ameliorating influences. If the offender can be reeducated and traits of his character can be reshaped, he can be put once again in the mainstream.[23]
Reformative theory of punishment is generally the most appreciated theory of punishment. This theory believes in the concept that the object is to extinct crime and not the criminal and that nobody is born as a criminal; it is only the consequences of those circumstances which were around him. So, the attack must be on the cause and not the symptoms by changing the situations and circumstances.
Conclusion
It is a fact that the prevention of crime and protection of society are the main objects of the society and no single theory of punishment will serve the real purpose wholly. Justice Caldwell observed that “Punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the court but also of the values in which it takes place and in balancing these purposes of punishments, first one and then the other receives emphasis as the accompanying conditions change”.[24]
Though prisons are meant to be the place where the criminals would be corrected or for that case deterred from committing a wrong in the future, but the present-day witnesses the prisons to have become redundant in their objective and becoming sites of reading of hardcore criminals. [25]This is a fact that the penologists must look into. Furthermore, the techniques applied in executing the punishment are not foolproof; for example, the criminals can carry on their illegal activities even while serving the period of sentence. [26]
Thus, the criminals should be treated first of all as human beings and should be secured with their right to life as enshrined under Article 21, Constitution of India. Therefore, preventive and reformative theories of punishment should be applied by the prison authorities as to how to prevent the commission of a crime in the society and how to reform the criminal who has committed the crime and has been sentenced to imprisonment.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
