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Introduction
The earlier penological approach held imprisonment, that is,
custodial measures to be the only way to curb crime. But the
modern penological approach has ushered in new forms of sentencing
whereby the needs of the community are balanced with the best
interests of the accused:
compensation, release on admonition, probation, imposition of
fines, community service are few such techniques used. Through
this paper, the advantages of probation are highlighted along
with how it could be made more effective in India.
The term Probation is derived from the Latin word probare, which
means
to test or to prove. It is a treatment device, developed as a
non-custodial alternative which is used by the magistracy where
guilt is
established but it is considered that imposing of a prison
sentence
would do no good. Imprisonment decreases his capacity to readjust
to the
normal society after the release and association with professional
delinquents often has undesired effects.
According to the United Nations, Department of Social Affairs, The
release of the offenders on probation is a treatment device
prescribed
by the court for the persons convicted of offences against the
law,
during which the probationer lives in the community and regulates
his
own life under conditions imposed by the court or other
constituted
authority, and is subject to the supervision by a probation
officer.
The suspension of sentence under probation serves the dual purpose
of
deterrence and reformation. It provides necessary help and
guidance to
the probationer in his rehabilitation and at the same time the
threat of
being subjected to unexhausted sentence acts as a sufficient
deterrent
to keep him away from criminality. The United Nations recommends
the
adoption and extension of the probation system by all the
countries as a
major instrument of policy in the field of prevention of crime and
the
treatment of the offenders.
In this paper, the focus is on the legislative and administrative
aspects of probation, and means by which probation may be made
more
effective in India.
Law
Of Probation In India
Section S.562 of the Code if Criminal Procedure, 1898, was the
earliest
provision to have dealt with probation. After amendment in 1974 it
stands as S.360 of The Code of Criminal Procedure, 1974.
It reads as follows:- When any person not under twenty-one years
of age
is convicted of an offence punishable with fine only or with
imprisonment fro a term of seven years or less, or when any person
under
twenty-one years of age or any woman is convicted of an offence
not
punishable with death or imprisonment for life, and no previous
conviction is proved against the offender, if it appears to the
Court
before which he is convicted, regard being had to the age,
character or
antecedents of the offender, and to the circumstances in which the
offence was committed, that it is expedient that the offender
should be
released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be
released on
his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period (not
exceeding
three years) as the Court may direct and in the meantime to keep
the
peace and be of good behaviour.
S.361 makes it mandatory for the judge to declare the reasons for
not
awarding the benefit of probation.
The object of probation has been laid down in the judgment of
Justice
Horwill in In re B. Titus : S. 562 is intended to be used to
prevent
young persons from being committed to jail, where they may
associate
with hardened criminals, who may lead them further along the path
of
crime, and to help even men of mature years who for the first time
may
have committed crimes through ignorance or inadvertence or the bad
influence of others and who, but for such lapses, might be
expected to
make good citizens. In such cases, a term of imprisonment may have
the
very opposite effect to that for which it was intended. Such
persons
would be sufficiently punished by the shame of having committed a
crime
and by the mental agony and disgrace that a trial in a criminal
court
would involve.
In 1958 the Legislature enacted the Probation of Offenders Act,
which
lays down for probation officers to be appointed who would be
responsible to give a pre-sentence report to the magistrate and
also
supervise the accused during the period of his probation. Both the
Act
and S.360 of the Code exclude the application of the Code where
the Act
is applied. The Code also gives way to state legislation wherever
they
have been enacted.
Section 4 of the Act provides for probation.
S.4 Power of Court to release certain offenders on probation of
good
conduct
(1) When any person is found guilty of having committed an offence
not
punishable with death or imprisonment for life and the Court by
which
the person is found guilty is of opinion that, having regard to
the
circumstances of the case including the nature of the offence and
the
character of the offender, it is expedient to release him on
probation
of good conduct, then, notwithstanding anything contained in any
other
law for the time being in force, the court may, instead of
sentencing
him at once to any punishment direct that he be released on his
entering
into a bond, with or without sureties, to appear and receive
sentence
when called upon during such period, not exceeding three years, as
the
court may direct, and in the meantime to keep the peace and be of
good behaviour.
S. 6 of the same Act lays special onus on the judge to give
reasons as
to why probation is not awarded for a person below 21 years of
age. The
Court is also to call for a report from the probation officer
before
deciding to not grant probation.
The provision under the Code and the Act are similar, as they
share a
common intent, that, punishment ought not to be merely the
prevention of
offences but also the reformation of the offender. Punishment
would
indeed be a greater evil if its effect in a given case is likely
to
result in hardening the offender into repetition of the crime with
the
possibility of irreparable injury to the complainant instead of
improving the offender.
Yet there are a few differences, which have been enumerated below.
S.4 of Probation of Offenders Act S.360 of The Cr.P.C
Any person may be released on probation, if he has not committed
an
offence punishable with death or imprisonment for life.(No
distinction
is made on ground of sex or age) Any person not under 21 years of
age,
if convicted of an offence punishable with imprisonment for not
more
than 7 years or when any person under 21 years of age or any woman
is
convicted of an offence not punishable with death or imprisonment
for
life may be released on probation.
It is not necessary that the person must be a first offender. This
section applies only when no previous conviction is proved against
the
offender.
Any magistrate may pass an order under this section. Magistrate of
the
third class or of the second class not specifically empowered by
the
state government had to submit the proceeding to Magistrates of
the
first class or Sub-Divisional magistrates.
Supervision order may be passed directing that the offender shall
remain
under the supervision of a Probation Officer. No such provision.
Besides these two enactments, the Juvenile Justice (Care and
Protection
of Children) Act, 2000 also provides for the release of children
who
have committed offences to be released on probation of good
conduct and
placed under the care of any parent, guardian or other fit person,
on
such parent, guardian or other fit person executing a bond, with
or
without surety, or any fit institution as the Board may require,
for the
good behaviour and well-being of the juvenile for any period not
exceeding three years.
Procedure For Probation Service
S. 4(2) and S. 6(2) of the Probation of Offenders Act provide that
the
judge would consider the report of the probation officer before
deciding
on whether to grant probation. S. 14 of the said Act lays down the
duties of the Probation Officers.
The pre-sentence report of the Probation Officer is the
fundamental
document for the guidance of the Court whether to grant the
benefit of
probation to the accused or not. The object of the pre-sentence
report
is to appraise the court about the character of the offender,
exhibit
his surroundings and antecedents and throw light on the background
which
prompted him to commit the offence and give information about the
offenders conduct in general and chances of his rehabilitation on
being
released on probation.
The judge may also pass a supervision order under section 4(3) of
the
Act, whereby the offender is placed under the supervision of a
probation
officer and certain conditions are imposed upon him. This is
mostly in
the form of regular visits to the supervising officer. Some of the
conditions which must be followed have been laid down in S. 4(4).
On the
application of the probation officer such conditions may be
varied- S.
8(2) and also the offender may be discharged- S. 8(3). If the
offender
fails to follow the conditions laid down by the Court, the
original
sentence against him may be revived S. 9.
The Juvenile Justice (Care and Protection of Children) Act, 2000
provides for the report of a probation officer or a recognized
voluntary
organization to be considered before passing a sentence. The
Magistrate
appointed as a member of the Board constituted under this Act must
know
something of child psychology. The Board would pass orders against
a
juvenile. The Act provides for the setting up of Observation and
Special
Homes by the State Government where the juvenile could be placed.
Here
the rehabilitation and social integration of the child would take
place.
It also provides for an After care programme which would take care
of
the delinquent child after he has been discharged from these
homes,
based on the report of the Probation Officer.
The Probation officers appointed under the probation of Offenders
Act
would also function under the Juvenile Justice (Care and
Protection of
Children) Act.
Probation in India is mostly dependent on the policies of the
State
rather than a uniform Central Policy.
In Karnataka a State level Probation Advisory Committee has been
constituted with High Court Judge as Chairman with official and
non-officials as members. A District level Probation Advisory
Committee
has been constituted in each district consisting of the District
and
Sessions Judge as Chairman with official and non-officials as
members.
After Care Programmes have been set up to improve the lives of
those
released on probation. The After Care Programme, in Kerala, is
intended
to rehabilitate released prisoners and probationers coming under
the
supervision of District Probation Officers. By utilizing this
amount
they can engage in small scale income generating activities. The
amount
of assistance is Rs.10,000/- per head. If the amount is
insufficient for
meeting the expenses this can be attached with some bank loan.
Department of Juvenile Welfare and Correctional Services was set
up in
Andhra Pradesh in 1990. It gives the following probation services
taking
care of probationers released by the courts and ex-convicts,
released juveniles, after-care work, counseling and guidance to
reform themselves
and not to revert to crime and for their rehabilitation through
Govt.
Welfare Agencies.
Benefits Of Probation Service
It serves the needs of the probationer in the following manner: -
Probation keeps the offender away from the criminal world.
Further, the
fear of punishment in case of violation of probation law has a
psychological effect on the offender. It deters him from law
breaking
during the period of probation. Thus probation indirectly prevents
an
offender from adopting a revengeful attitude towards the society.
Moreover, sentencing an offender to a term of imprisonment caries
with
it a stigma, which makes his rehabilitation in society difficult.
The
release of the offender on probation saves him from stigmatization
and
thus prepares him for an upright living. The shame of going
through a
trial process would have sufficiently chastised him. According to
the
labeling theory, a stigmatizing label once applied, is very likely
to
cause further deviance or create the deviance. People tend to
conform
to the label even when they didn't set out that way.
Probation seeks to socialize the criminal, by training him to take
up an
earning activity and thus enables him to pick up those
life-habits,
which are necessary for a law-abiding member of the community.
This
inculcates a sense of self-sufficiency, self-control and
self-confidence
in him, which are undoubtedly the essential attributes of a
free-life.
The Probation Officer would guide the offender to rehabilitate
himself
and also try and wean him away from such criminal tendencies.
Before the implementation of probation law, the courts were often
confronted with the problem of disposing of the cases of persons
who
were charged with neglect of their family. In such cases there was
no
alternative but to send them to prison, which was an unnecessary
burden
on the State exchequer. With the introduction of probation as a
method
of reformative justice, the courts can now admit such offenders to
probation where they are handled by the competent probation
officers who
impress upon them the need to work industriously and avoid
shirking
their family responsibilities.
An analysis of crime statistics would show that a large segment of
offenders consists of the poor, the illiterate and the unskilled.
Such
offenders are seen to be victimized twice: once, when they are
denied of
their basic human needs in open society and forced to live in a
sub-culture of social marginality, and, again, when they are
grinded in
the mill of criminal justice for having infringed the law.
Probation
would thus be an effective means to deliver justice to them, they
would
not be incarcerated and also they would be trained which would
improve
their life later.
The society is also served. The object of society that all its
members
playing a positive role by seeking their self-rehabilitation is
achieved
by the probation system, it is indeed an effective method of
preserving
social solidarity by keeping the law-breakers well under control.
Also,
during the probation period, the offender is sent to various
educational, vocational and industrial institutions where he is
trained
for a profession which may help him in securing a livelihood for
himself
after he is finally released and thus lead an absolutely upright
life.
And whatever work an offender is doing as a probationer, he is
contributing to the national economy. Thus, he no longer remains a
burden on the society.
Further, correctional task of probation staff requires closer
contact
with inmates during his period of probation. This helps the
probation
supervisor to get a deeper insight into the real causes of crime
and
suggests remedies for their eradication.
Criticisms Against The Concept Of Probation And Their Counter
There are some critics who look at probation as a form of leniency
towards the offenders. To quote Dr. Walter Reckless , probation
like
parole, seems to the average laymen a sap thrown to the criminal
and a
slap at society. Probation is still generally perceived as a
lenient
approach rather than a selective device for the treatment of
offenders
who are no threat to public safety. Probation system lays greater
emphasis on the offender and in the zeal of reformation the
interests of
the victim of the delinquents are completely lost sight of. This
obviously is against the basic norms of justice. Keeping in view
the
increasing crime rate and its frightening dimensions, it is
assumed that
undue emphasis on individual offender at the cost of societal
insecurity
can hardly be appreciated as a sound penal policy.
Some criticize probation because it involves undue interference of
non-legal agencies in the judicial work which hampers the cause of
justice.
Further, when non-custodial correctional measures are used
arbitrarily,
without being resorted to on objective grounds, there is danger of
men
of means taking undue advantage and abusing the system as against
those
who would really deserve but have no advocacy or support, and of
the
whole approach becoming counter-productive and coming into public
disrepute.
The answers to these criticisms would lie in the fact that the aim
of
the criminal justice system is to correct the offender and for
some
offences this would be best done outside the prison.
Further, laying down strict guidelines to determine when probation
should be awarded would defeat the very purpose of the concept.
The
broad parameters laid down age of the offender, surrounding
circumstances, nature of the offence, etc. provide a broad
framework
for the judge to apply his discretion. It would also defeat the
purpose
if probation has to be granted when certain conditions are
satisfied, if
for example the facts on record show clear pre-meditation to do a
wrongful act.
Responding to the other criticism, it is essential that non-legal
agencies, namely probation officers, interference is only meant
for
smooth functioning, and also it is not mandatory for the judge to
consider using the probation officer always. He may not ask for a
pre-sentence report, may not put the offender under supervision.
Problems In The Practical Implementation Of Probation In India
S. 6 of the Probation of Offenders Act, which makes it easier for
a
person below 21 years of age to benefit from probation. This is
regardless of their antecedents, personality and mental attitude.
It
might lead to recidivism because many of them may not respond
favourably
to this reformative mode of treatment. Also, in many cases it is
difficult to ascertain whether the delinquent is a first offender
or a
recidivist.
The Probation of Offenders Act, in sections 4(2) and 6(2), lays
down
that report of the probation officer is considered before awarding
probation. But, the Courts generally have shown scant regard for
the
pre-sentence report of the probation officer because of lack of
faith in
integrity and trustworthiness of the Probation Officers. In their
view
calling for the pre-sentence report would mean unnecessary delay,
wastage of time, undue exploitation of the accused by the
probation
officer and likelihood of biased report being submitted by him,
which
would jeopardize the interest of the accused and would be contrary
to
the object envisaged by the correctional penal policy.
On personal interview with some judicial officers and probation
officers, conducted by Abdul Hamid, it has come to light that
neither
judicial officers feel it desirable to get report from the
probation
officers, nor the probation officers feel it obligatory on their
part to
submit their reports in the courts unwarranted.
Section 4 of the Probation of Offenders Act does not make
supervision of
a person released on probation mandatory when the court orders
release
of a person on probation on his entering into a bond with or
without
sureties. This is not in accordance with the probation philosophy,
which
considers supervision essential in the interests of the offender,
against corrective justice.
The lower judiciary in India has not at all taken into
consideration the
objects and reasons of this act, while applying its discretion in
regard
to grant of probation. In an umpteen number of cases the accused
had to
move the High Court and even the Supreme Court to get the relief
of
probation. If an accused gets relief of probation only in the High
Court or the Supreme Court after passing through the turmoil of a
long
and cumbersome judicial process, he would, psychologically, be
diverted
towards hardened ness and the whole purpose of the Act would be
forfeited.
Variation or discharge of the probationer is based solely on the
report
of the probation officer; this leaves the probationer at the mercy
of
the Probation Officer.
The after probation services are not very effective. Thus, even
considering that a sentence of probation has been passed and the
offender is placed under supervision it is nothing more that a
regular
visit to the officer. There is no scientific process of
rehabilitation
and the Probation Officers arent adequately trained. They are
recruited
between 20 and 26 years of age. They are grouped into districts
and
supervised by a state/provincial chief. There is no in-service
training
and occasional refresher courses, and thus they are not adequately
trained.
Further, often there is a lack of interest for social service
among the
probation personnel. Lack of properly qualified personnel, want of
adequate supervision and excessive burden of casework are
attributed as
the three major causes of inefficiency of the probation-staff.
Suggestions To Make Probation Service Fulfill Its Purpose
A few suggestions have been given in the paper which may be
implemented
at the legislative and the administrative level, which would make
probation effective in India.
Changes that could be brought about in the law are enumerated
below.
These changes are mostly applicable to the Probation of Offenders
Act as
it is more widely applicable than S.360 of the Code.
Due importance must be given to the reports of the probation
officers by
making necessary amendments in section 4(2) and section 6(2) of
the Act.
Probation must be based on thorough investigation into the case
history
of the offender and the circumstances associated with his crime.
United
Nations Standard Minimum Rules for Non-Custodial Measures also
provides
that the judicial authority must avail of such a report.
Recidivists have often proved a failure in the process of
probation. It
has, therefore, been generally accepted that probation should only
be
confined to the cases of juveniles, first offenders and women
offenders.
Though S.360 of CrPC lays down that only first offenders will be
granted
this benefit, if they are not below 21 years of age, no such
condition
has been laid down in the Act. Necessary amendment may be done to
incorporate the same.
It must be made mandatory for offenders to be placed under
supervision
of a probation officer, by amendment under S.4(3) of the Act, as
that
would best serve the philosophy of probation. If the officer feels
that
the offender would not commit a crime, he could then submit to the
court
an application for the offenders discharge.
Also, it has been left to the discretion of the Probation Officer
to
decide and inform the Court about necessity to vary an order of
probation or to discharge the probationer, so there must be a
complaint
mechanism provided is a probationer wants to complain against a
decision
concerning the implementation made by the implementing authority,
or the
failure to take such a decision.
The proviso to S(4) of the Act lays down that probation would be
granted
only after the offender or his surety, have fixed place of abode
or
regular occupation. A large segment of offenders consists of the
poor,
the illiterate and the unskilled. It would not be possible for
them to
fulfill the conditions in all cases, hence the proviso should be
amended
to not make it mandatory, and leave it at the jurisdiction of the
Court.
Amendment could be made to The Code of Criminal Procedure to
include the
provisions for pre-sentence report and supervision.
To make the judiciary more responsive, an amendment could be
brought
about in The Probation of Offenders Act which would make it
mandatory
for the judiciary to lay down the grounds as to why the benefit of
probation must not be given, on the lines of S.361 of the Code.
The provisions under the Probation of Offenders Act and the Code
of
Criminal Procedure could be amended to be similar to the Juvenile
Justice (Care and Protection of Children) Act, where more detailed
procedures are laid down, like for the setting up of observation
homes,
report of the probation officer.
Changes could be brought about in the way administration deals
with
probation. Some of them are enumerated below.
India, being a developing country cant spend heavily on
correctional measures, as its emphasis would be more on economic
improvement. Due to
lack of economic resources most developing countries violate the
UN
Standard Minimum Rules. It wouldn't be possible for India to adopt
all of
the measures prescribed by the UN, but India could adopt a few of
the
measures.
The first among them must be to have trained probation personnel.
This isn't there today because the task of the probation officers is not
given
much importance in India. It is considered to be a mere formality,
but
if utilized well they would be most effective. The quality of
probation
service must be improved by making the service conditions of the
probation staff more lucrative. This will attract well-qualified
and
competent persons to the profession. The probation personnel ought
to be
specially trained so that they can discharge their duty as
probation
officer competently.
A nation-wide uniform scheme of training for probation personnel
with
emphasis on social-work and rehabilitative techniques would serve
a
useful purpose to improve the efficacy of probation service in
India.
Guidelines for the training of Probation officers as have been
laid down
in the United Nations Standard Minimum Rules for Non-Custodial
Measures,
may be followed to the extent possible.
South Africa, though a developing country makes it necessary that
desired entrants have degrees in criminology, psychology, or
social
work. There are also monitoring staff who work parallel to
probation
officers. Loans are offered for full and part-time study and short
courses. Thus it is no excuse that probation may be implemented
only in
the developed and rich countries.
Further an increased investment on correctional services for the
poor,
illiterate and unskilled would be most productive not only in
reducing
crime but also in improving the quality of life among the strata
the
come from and are ultimately to return to. The Kerala Government
has
provided for an After Care Programme to rehabilitate probationers.
They
are given an assistance upto Rs.10,000/- per head. By utilizing
this
amount they can engage in small scale income generating
activities. The
amount of assistance is. If the amount is insufficient for meeting
the
expenses this can be attached with some bank loan. Such services
could
be extended to the rest of India.
Further, this system must be extended to rural courts where there
is
general lack of social agencies to undertake the task of
rehabilitation
of offenders. Rural delinquents may be more responsive to this
correctional method of treatment than the urban offenders because
of
their relatively simple life-style. In developing probation and
aftercare services it should be ensured that women and children
are
specially assisted.
In U.S., Prediction Tables are compiled to plan probation
strategies.
Such tables may help in anticipating the probable result of
correctional
treatment on different offenders. There, they have proved
immensely
helpful in estimation of offenders personality for individualized
treatment. For example, a juvenile delinquent from a broken home
would
be less responsive to treatment than a person from a good family
background.
The present system in parts of the country, where the offender
only has
to present himself before the probation officer on a regular basis
would
not suffice.
At present the work of probation is assigned to different
departments in
different States. In some states probation service is placed under
the
Social Welfare Department while in others in functions under the
Panchayat Department or the Home Department. It is advisable to
have an
independent Department of correctional Services on the pattern of
the
state of Gujarat at the national level to exclusively deal with
rehabilitation of offenders, of which probation is one of the
techniques.
An attitudinal change, must be sought and brought about among the
judicial officers towards the significance of the probation
system, this
would make the concept more workable and beneficial.
Probation in India as of today is mostly at the States initiative.
Instead a central policy towards probation must be formulated.
Conclusion
The object of the criminal justice system is to reform the
offender, and
to ensure the society its security, and the security of its people
by
taking steps against the offender. It is thus a correctional
measure.
This purpose is not fulfilled only by incarceration, other
alternative
measures like parole, admonition with fine and probation fulfill
the
purpose equally well.
The benefit of Probation can also be usefully applied to cases
where
persons on account of family discord, destitution, loss of near
relatives, or other causes of like nature, attempt to put an end
to
their own lives.
Its aim is to reform the offender and to make him see the right
path.
This can be achieved as has been said previously, not only by
legislative action but also by sincerity on the part of the
administration. In some parts of the country it is being
implemented in
the right spirit. The example of Kerala and Andhra Pradesh have
been
described in the project.
The success of probation is entirely in the hands of the State
Government and the resources it allots to the programmes.
Resources are
needed to employ trained probation officers, to set up homes for
those
on probation and also for their training besides others.
Thus while concluding it can be said that the concept of Probation
would
be effective only where the judiciary and the administration work
together there must be a common understanding between the
Magistrate
(or) Judge and the Probation Officer. Probation would be effective
only
when there is a sincere attempt made to implement it.
It would be of great benefit for a country like India, where the
jails
are often overcrowded, with frequent human rights violations which
would
harden the human inside a person. Probation is an affirmation of
the
human inside every being and it must be given de importance.
|
Probation:
A Study In The Indian Context
More
Articles:
The
author can be reached at:
trayosha@legalserviceindia.com /
