"Can punishment be in form of
reform": an age-old controversy. 'Hate the crime and not the
criminal' very rightly said by Mahatma Gandhi. What ever be the ultimate aim of punishment in the first instance it is the imposition on an evil. Punishment as Benthem said is itself and evil; it is a negative concept. Any power of punishment to reform is widely and strongly denied on the dual grounds of principle* and of experience. Experiments have shown that punishment ordinarily do oit reform. On the contrary it often degrades, coleuses and brutalizes. Men commonly come out of prison worse, than they went in. Punishment tends to search for an answer but more often ends up raising more questions.
It should, however, be borne in mind that reformative idea must be kept within sensible limits. In its extreme application, the reformative idea will not secure its goal and might lead, as farce reformation should go hand in hand with retribution and deterrence. The majesty of law must be maintained through punishments, which has to be exemplary also. A certain amount of terror is also desirable, and at times, evens necessary. So the idea of deterrence cannot be ignored. Deterrence cannot be wholeheartedly and completely substituted by reformation pure and sole. The perfect blend of deterrence and reformation can be seen in Indian Jurisprudence. Some of the legislative provisions, which deal with reformative concept, are as follows:
- Reformative schools act, 1897
- Juvenile justice act, 2000 (amended)
- Probation offender act, 1958
- Parole rules
Reformatory School Act, 1897 - One of the earliest outcome of the Reformatory Theory of Punishment is Reformatory School Act, 1897. The kind of approach taken by this act is curative. As this act basically deals with children and the focus of this act is to prevent first youthful offender, whose antecedent are not shown to be bad to sent to ordinary jails, which may have the effect of making them hardened criminal, the law as curative measure provide other form of punishment.
First youthful offenders are sent to Reformatory School run by government. There they have every basic facility of food clothing, education and opportunity for exploring themselves. These all measures are under Government control and scrutiny of head of Reformatory School. Offenders are restricted within a particular boundary. This act of imposing restriction acts punishment on them.
* Reformatory theory
** Flogging is now discontinued as form of punishment
However, it does not mean that all the offence of youth ** * is always guided by Reformatory School Act. Certain limitations of this act are:
- The offence of murder which is punishable to death or imprisonment of life, do not include the offence to be dealt with Reformatory Schools Act.
- A sentence of mere fine is not sufficient to order detention is Reformatory School.
Further, the Juvenile Justice Act incorporates and supplements the object and aim of the Reformatory Schools Act in true spirit and sense.
Juvenile Justice Act, 2000-
Juvenile delinquency involves wrongdoing of child or young person who is under an age specified of the pace concerned. Dr. Sethan.
They say, it is easier to mould a child then to mend a man and that the child of today is the citizen of tomorrow. It is, therefore essential that the criminal traits in youngster be timely curbed. So that they do not turn in to habitual offenders in their forthcoming life. It is with this view in end that the problem of juvenile delinquency is presently being handled in India with grate significance.
The concept of juvenile delinquency is confined to violation of the ordinary penal laws of the land. The Juvenile Justice Act, 2000 had defined the term as any violation of penal laws of the country for the time being in force, committed by the person who has not completed 18 years of age, shall constitute an act of juvenile delinquency. Although the act constituting offences prescribed for the adults and the juvenile are the same, there is grate deal of difference as regard to the jurisdiction of the courts and procedure to be followed. The accused juvenile is not to be tried by ordinary criminal courts. Juvenile justice board deals them. These boards are to function in accordance with the special procedure laid down in the act.
Judicial system for the juvenile and children are somewhat different. As a matter of fact, children lack maturity, they are in formative years, and can be reformed easily. So capital punishment or life imprisonment, committed to prison in default of payment of fine or in default of furnishing security cannot be awarded to them. These are the major steps taken in year 2000 by the amendment of the Juvenile Justice Act, 1986.
Probation of Offenders Act, 1958
- The act embodies modern humanitarian approach of reforming with freedom rather than punishing the offender. In this, behavior of offender is supervised as an alternative to prison. Today probation is popular than more than 60 % of offender in the United States are granted probation. There are almost five times probationers as adult prisoners.
The object of this act is to provide to the convict considering the circumstances of the case, the nature of the offence and antecedent of the offender to reform himself, in order to turn over a new lead during the period of probation. When a person has committed an error and is not a dangerous criminal but is of weak character or has surrendered to temptation or provocation, the court encourages his won sense of responsibility, for future and protects the offender from stigma and possible contamination in prison.
*** Youth as defined in the act
Also the aim of the act is to prevent the conversion of youthful offender in obdurate criminal as result of their association with hardened criminals of mature age.
Before releasing an accused on probation of good conduct, the court takes into consideration overall circumstances of case including nature of offense, character and antecedent of the offender and also the report of probation officer. The question of releasing the accused on probation is the discretion of the court.
The power to release and accused on probation is on the discretion of court. For the purpose of arriving at a decision, whether the accused offender should be extended the befit of the Act, the court has to take into consideration certain factors such as :-
- The accused offender has been convicted or an offence.
- The offence committed must not be one punishable with death or imprisonment of life.
- The court must be of the opinion that it is expedient to release the accused on probation of good conduct instead of sending the accused to any punishment.
- The offender or the surety must have a fixed abode or regular occupation in a place situated within the Jurisdiction of the court.
- The court must take in to account the report of probation office.
Parole Rules - The word parole means release of prisoner on solemn affirmation and its shall not be counted as remission of sentence. To be descriptive, parole is the act of being released from a penal or reformatory institution in which one has served a maximum sentence on condition of maintaining good behavior and remaining under supervision/guidance of the institution or some other approval agent until final discharge is granted. Parole is granted by administrative or an executive and is always preceded by serving part of sentence. Parolees are considered as undergoing both punishment and treatment. By parole it meant conditional release of a prisoner from prison but not from legal custody of the state. It should also be noted that, although in the transformatory age parole is grated in most of the instance but it couldn't be claimed by the prisoner as a right.
The State Government under the parole rules grant parole. Competent authorities such as State Government on few instances, commissioner or additional commissioner and in some special cases superintendent of the jail can grant parole.
The history of reformation has been a tale of the search of mankind for the absolute correctional technique and of failure. Again and again the idea of reformation through punishment has appeared in one form or the other, as an expression of an idea higher than mere retribution or deterrence.