Tushar
Singal*
Introduction
Granting
punishment to the offender is an essential duty of the state. Punishment acts
as caveat and restriction for the person who intends to commit a crime against
the society or a State. But even if a person commits the crime with the full
knowledge that his actions are illegal and for that, he will be punished under
the law, it can be an effect of many sociological issues surrounding him. So
here, it becomes the principal duty of the state to grant punishment but
granting this punishment where the prisoner will be altogether segregated from
the society, barring his social interactions will not serve the purpose of
punitive action. It is a well-known fact that Prisons are the institutions of
organized crime; the object of punishing the offender for his misdeeds often
results in the development of an offender to be a professional criminal.
Barring contact of the offender with the society and his only interaction with
the jail inmates renders him to be more violent, vindictive, and abusive. It is
the vital right of human existence to have an opportunity to be rehabilitated.
A
Person does not lose ones human right merely because of the reason that he has
committed some offence, he has some dignity that ought to be protected.[1]. A convicted person who has
lost the liberty to enjoy his freedom and engage with the system should be
given a chance to improve himself and be a better version of himself who can rejoin
and engage with the system and cooperate with society. Therefore,
the power of Pardoning has founded on consideration of public good and
it should be exercised on the basis public welfare. ‘Pardon’ in common parlance
means to wipe off the guilt of the accused i.e., to forgive him and bring him
back to the position of innocence. Granting Pardon is considered to be an act
of grace and the power to grant Pardon is bestowed upon the President and Governor
under Article 72 and 161 of the Indian Constitution respectively. Grant of
pardon substantially helps in saving the person from wrong and doubtful
conviction so that there cannot be any miscarriage of justice. The law of the
land is binding upon every citizen and there is a direct relation between law
and central government. When there is a breach of the law made by parliament,
to correct the possible judicial errors, inherent powers of pardon should be
given to the head of the Central Government. Where the question of pardon is
involved the more serious the offence the higher should be the authority to
grant the pardon.[2]
Honorable Dr. B.R. Ambedkar explained in few words a general outline of the Draft
Article 59, that the power of commutation of sentence for offences enacted by
the Federal Law is vested in the President of the Union. The power to commute
sentences for offences enacted by the State Legislatures is vested in the
governors of the state. The power to grant pardon was given to the Governor
with the object that the offence is committed in that particular locality. The
Home Minister who would be advising the Governor on mercy petition would be in
the better position to advise the Governor having his regard to his of intimate
knowledge of the circumstances of the case and the situation prevailing in that
area[3]. By virtue of Article 72
and 161 of the Constitution the President and Governor have an authority to
grant Pardon, etc., and to suspend, remit, or commute sentences in certain
cases. For the installation of the restoration process in criminals, there are
many rewards designed to be awarded to them based on their good behaviour,
conduct, and cooperation. Pardoning
power of Executive is a significant function which corrects the error of
judiciary. ‘Remission’ under section 432 of Criminal Procedure Code, 1873 means
to reduce the amount of the sentence and leaving the order of conviction and
sentence by the court untouched. The power to remit or suspend the sentence is
solely belongs to the executive. However,
the first question which arises, is that do these rewards are
granted fairly by the concerned authority? Secondly, do they serve the
purpose of “imprisonment is not only punitive but restorative to
rehabilitate the offender”, or are they increasing recidivism?
Right of a prisoner to be remitted
As the society is constantly emerging, its perspective has also changed from punishment as a source of depriving convicts of social interaction, abandoning their freedom and liberty, to the idea of their Rehabilitation by giving them rewards for their good conduct and behaviour in the form of remission, wages for labour etc. The judgement by the legislature while providing any particular punishment in respect of any offence may sometimes appear to be very inapt or rather too harsh. While sentencing the convict, the judge or magistrate might fail in the accurate predicament of the response of the offender to the sentence/punishment awarded. Sometimes the sentence fixed by the court may become perversely less suitable to an offender who has reformed himself in a shorter term of his imprisonment. In these circumstances, the Government is conferred with different powers to reduce, remit, and suspend the sentence imposed on the offender. It also strengthens the process of Rehabilitation and resocialization of the offender.
Remissions
work as a quid pro quo which justifies the rights of prisoners to be
rehabilitated. Restoration is the shift towards a humanistic approach vis a vis
prisoner. In the case of Maru Ram[4] the supreme court held that
remission is not liberty which one can claim, but the prisoner is not claiming
the right to get remission, he is only claiming his right to be considered for
remission. Hence taking this right from a person means that his right to life
is being halted.
It
can clearly be seen from the data that even if the actual capacity of prisons
is being increased on a year-to-year basis, then also actual occupancy is much
higher, which means that the convicted offenders who have already completed
most of their sentence are rotting inside the prisons. The overpopulation of
prisons affects not only the convicted prisoners but also the undertrial
prisoners. There has been a trend, especially in the USA, to sentence the
convicts to exceptionally long sentences (in terms of 100+years) and multiple
life imprisonment, but those are seen as 'exceptionally bad precedents', are
generally criticized and are seen as giving the punishment an angle of
retribution rather than reformation.[6] This shows that the
offender is not given a chance to rehabilitate but is getting the maximum
punishment possible for his offence. Remission of punishment does not mean
acquittal, and the convicted person has every right to go in appeal to clear
himself of the stigma of conviction.[7] Grant of Remission is an
executive function and not a judicial function. Granting remissions is the
function of the Appropriate Government of the state u/s 432/433 CrPC and they
can solely be granted by President and Governor under Article 72 and 161 of the
Constitution of India respectively.
In
Laxman Naskar v. State of W.B.[8] the Supreme Court listed
out consideration which shall guide the appropriate authority for the premature
release of the offender:
i)
Whether the offence is an individual act of crime without
affecting the society at large;
ii)
Whether there is any chance of future recurrence of
committing the crime;
iii)
Whether the convict has lost potential for committing
the crime;
iv)
Whether there is any fruitful purpose of confining the
convict anymore;
v)
What is the socio-economic condition of the convict's
family
The
very idea of conferring the powers of granting remission to the Government is
that the court should not function arbitrarily in the matter. But on the other
side of the coin, we can find many instances where, while the grant of
remission to offenders’, Political vendetta and party favouritism comes in. The
offender who has committed comparatively less atrocious crime remains in jail,
and the more brutal offender is granted remission. As Indian
Criminal
Jurisprudence follows the 'doctrine of proportionality,' i.e., while
determining the quantum of punishment, the atrocity of the crime, the conduct
of the criminal and defenceless and unprotected state of a victim should be
taken into view.[9]
But these provisions are not relied on frequently, which weakens the
credibility of the justice system. The guidelines prescribed in the case of Laxman
Naskar v. the State of W.B.[10], if followed, would
deliver the appropriate justice to the offender, and for such a person,
remission will play an important role as an incentive or reward from which they
get some sense of hope of getting freedom, and he will try to improve himself.
Contrary to it, if the person is deprived of engagement with society, he will be
left with no desire to improve himself. Rather, it would make him more violent,
vindictive, and a drug addict. One cannot take from anybody the Right to Life
and Liberty enshrined under Article 21 of the Constitution; even if he is an offender,
he should be given a fair chance to regain his liberty, his capacity to reform
and rehabilitate should not be overlooked arbitrarily.
The
dilemma which persists vis a vis reformation is that up to how much extent the offender
should be reformed and how much tenure is needed for a person to be reformed.
The punishment and sentence awarded to the offender depend on the gravity of
the offence, but the reformation of the person depends upon an individual
level. There are many studies which show that some offenders who have been
granted remission have been reformed and are able to resocialize, whereas on
the other hand, some offenders whose sentence has been suspended/remitted have
become recidivists.[11]. It is complicated to find
that up to how much extent the offender has been rehabilitated, whether he has
lost the potential of committing the crime, and whether his behaviour and
conduct are according to society's interest. These parameters are tough to
measure, and they may sometimes be proved against society. Criminal adherence
to anti-social behaviour, the criminal justice system and law can hinder the
offender from the reflection of their anti-social behaviour or criminal
behaviour. The deficits of misinterpretation of social relations, mannerism,
unawareness of other human feelings cause a tendency of self-oriented behaviour
in the criminal, and he can become impulsive on trivial matters. Studies show
that punishment and rewards complement each other, and they should be used
together by law enforcement departments to reduce recidivism.[12] The supreme court (Mr
Justice Krishna Iyer) in Hiralal v state of Bihar[13]Has emphasized that
"how important it is for the prison department to explore, experiment, and
organize gradually reformatory programs to eliminate recidivism and induce
rehabilitation". The onus of
reformation of the jail inmates is on the prison officials, the rehabilitation
program in prisons are not carried out properly, they are not generally
accessible by the jail inmates, and even if they are, the question arises is
that whether these programs prove to be economically and socially viable for
the convict after their release. The studies show that even after the release
of the convict, society does not recognize him as a normal human being; this
negative perception and stigmatization of the ex-convict compels him to
reoffend. The very idea of punishment is to reform the offender and not to
train or mentor him to be a professional and an organized criminal; if the
offender is released and even after that he is reconvicted, then the idea of
punishment is defeated. The global picture reveals the high recidivism rates in
prisoners "as a result of inefficiency reformation program performance".[14] Also, the unacceptance, negative perception,
loss of economic wellbeing, denial of public service and hostile attitude
towards ex-convict hinder his reintegration into society. The refusal by the
employer for the job, absence of help from society, denial by the spouses and
open shame obstructs effective reintegration in the society. Here we can see
that even if the offender has been rehabilitated and is trying to reintegrate
into society, he faces many hindrances and anti-social remarks. Community plays
a vital role in the reintegration of the person within the societal matrix, and
the rejection from society and stigmatization causes the released person to
recidivate to commit an offence. Also, the lack in the execution of
rehabilitation programs in the prisons by the jail officials makes the
offender's rehabilitation process ineffective. Even if the offender gets
released from jail, he remains equipped with negative thoughts and anti-social
behaviour; lack of human interaction reinstates in him the will to recommit
crime. Congestion in prisons and the brutal treatment of prisoners by the jail
officials makes the offender even more vindictive and hostile. Ironically, we
can here observe that criminals are expected to be transformed through
reformation, rehabilitation, and treatment so that they can be prevented from
committing any further crimes; contrary to it, prison staff remain accustomed
to applying old methods of dealing with prisoners. So here we can observe that
institutional lack in the execution of the rehabilitation program in prisons,
societal rejections, immoral behaviour of jail officials with prisoners defeats
the idea of reformation of the offender. The object of reformation will only be
attained if the offender is directed to the right path through proper guidance,
assistance, and societal acceptance. To comment on the question that “imprisonment
is not only punitive but restorative to rehabilitate the offender” or is it increasing
recidivism is very complex. Many factors such as societal reaction, psychology
of the offender, education level of offender, self-realization of oneself,
criminal jurisprudence plays a vital role in offender’s rehabilitation. The
object rehabilitation can be said to be fulfilled when the offender realizes
his mistake and does not intend to commit it again after he is released, but
again the social, economic, and mental constraints lead him to reoffend.
Though
the criminal justice system has come a long way from using punishment to instil
fear in the mind of the prisoner and to set an example of warning for others
who are intending to violate the law. Using punishment as a source to
rehabilitate the offender, i.e., the idea of the modern criminal justice system
is that "imprisonment is not only punitive but restorative to rehabilitate
the offender". The reformative theory of punishment is a humanistic
approach towards punishment. The central objective of punishment is to change
the frame of mind of the offender from committing a crime, and this reformation
can only be achieved if the rehabilitation programs are compulsorily followed
in jails. Resocialization of a prisoner is not possible without the proper
restoration process. The restoration process begins in prisons, and it can
significantly contribute to the attitudinal change of the offender and can help
him to overcome the sinful outcome of incarceration. Immoral behaviour of the
jail officials, rejection by society, unenthusiastic behaviour towards
offenders and other social constraints do not let the offender to reform. On
the other hand, if the prisoner is given humane treatment, he will incline
towards the path of Rehabilitation, which will instil positive behaviour and aid
in his reintegration into the community. Grant of remission and other rewards
on reformation is only meaningful if the offender is gets accepted by society
and is not stigmatized. The object of remissions can only be justified if the
person has fully reintegrated into society with full societal acceptance. It
means that the attainment of the goal of rehabilitation doesn't only lie with
the offender, but society as a whole is an essential contributing factor in his
reformation.
*Student of 5th Semester B.B.A. LL.B.(Hons) Jindal Global Law School OP Jindal Global University, Sonipat
[1] R. K. Gupta & Karam Singh, Human
Rights of Prisoners in India, 2, Imperial Journal Interdisciplinary
Research, (2016).
[3]Draft Article 59(Article 72, Constitution of India 1950) was
debated on 29th December 1948, Constituent assembly debates, Volume
VII
[4] Maru Ram, supra note 11
[6] Prof. Faizan Mustafa, Lifer
without Remission, Another Regressive Verdict, Live Law (Dec. 30, 2015),
available at: http://www.livelaw.in/lifer-without-remission-another-regressive-
verdict-2.
[7] Puttawwa,
re,1959 Cri LJ 617: AIR 1959 Mys 116. Referred from R.V. KELKAR’S Criminal
Procedure
[10] (2000) 7 SCC 626:2000 SCC (Cri) 1431
[11] Recidivism After a Prison-Based Treatment Program: a Comparison Between a Treatment and Control Group Using Proportional Weighting Within Strata https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjCrv6di-PyAhUXxTgGHd-HA3oQFnoECAIQAQ&url=https%3A%2F%2Flink.springer.com%2Farticle%2F10.1007%2Fs40865-020-00139-3&usg=AOvVaw3NjhSzPc48PM9pKL86FxUV
[12] Recidivism
and Rehabilitation of Criminal Offenders: A Carrot and Stick Evolutionary Game https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwi9lpnwiuPyAhUD4jgGHVsgD18QFnoECAgQAQ&url=https%3A%2F%2Fjournals.plos.org%2Fplosone%2Farticle%3Fid%3D10.1371%2Fjournal.pone.0085531&usg=AOvVaw20mz61CfEJV0lOVR3ZVKsh
[13] Hiralal V State of Bihar (1977) 4 SCC 44: 1977 SCC
(Cri)538 Referred from R.V. KELKAR’S
Criminal Procedure
[14] Bureau of Justice Statistics Special Report, 2014.
https://bjs.ojp.gov/content/pub/pdf/p14.pdf
Good Job Tushar 👍🏻
ReplyDeleteNicely framed
ReplyDeleteWonderful article! Not just foresighted, but also concise and lucid.
ReplyDeleteNicely written! Gives a fresh perspective.
ReplyDeleteWonderful article
ReplyDelete