Alternatives to Imprisonment within the Criminal Justice System

A lot of developing countries are finding it tough to manage their prisons. Such over populated penal institutions only provide inadequate living conditions to inmates and this affects the both physically and psychologically.  They have to be detained for long periods and these prisons are usually unable to carry out the tasks of training and rehabilitation, despite the fact that these are national aims. Moreover, increasing crime rates is only making these inadequacies all the more worrying.[1] Therefore, alternatives to imprisonment are measures used in administration of justice that are not penal alternatives to addressing conflict that do not criminalize or ostracize individuals while working to build and strengthen, not dichotomize and weaken, the community. Thus, an attempt has been made to understand the alternatives to imprisonment in India and to be able to understand the various provisions at play here. It is hoped that the judiciary and other identified stakeholders will commence a much more purposeful and diligent effort in the administration of justice, without recourse to the use of imprisonment as the first port of call.[2]

ALTERNATIVES TO IMPRISONMENT: AN UNDERSTANDING ON THE INDIAN LEVEL.
According to data put out by the National Crime Records Bureau in 2016, out of the total number of persons arrested, 6.4 per cent (191849 out of 373787o) people were repeat offenders. The data showed that there was a rise in recidivism – which means the tendency of a convicted criminal to commit the same crime again – from 3 per cent in 2o15 to 6.4 per cent in 2o16. The increasing cases of recidivism clearly mean that imprisonment is not helping with rehabilitation. of course, we have rehabilitation programs in prisons itself, but they are not very effective. For certain categories of crimes and certain categories of offenders, especially young offenders and first-time offenders, community service would be appropriate[3]. According to Crime in India, 2o12, the share of recidivists among all offenders remained constant at 6.9 % during 2o12 and 2o11. In absolute terms, the number of past offenders involved in repeating IPC crimes during the year 2o12 was 2,26, 729 as compared to 2,16, 189 in the year 2o11; accounting for an increase of 4.9 % in 2o12 over 2o11.[4]

The rationale behind the use of alternatives to imprisonment includes giving an offender opportunity to reform, rehabilitate and make a fresh start.  The United Nations Standard Minimum Rules for the Treatment of Prisoners, 1990or Tokyo Rules[5] aimed at the implementation of non-custodial measures as an alternative to strict imprisonment. The Malimath Committee report prepared by the Law Commission in 2oo3 has recommended an alternative to imprisonment in the Indian context[6]. The options to alternatives to imprisonment can be used at different stages of sentencing. At the beginning of the sentence provisions such as admonition, fine, confiscation, community services, referral to rehabilitation centres/camp/shelters etc may be used. As a result, of alternative methods, USA has brought down its incarceration rates from 1,ooo to 83o inmates per 1o,ooo adults.

The All India Committee on Jail Reforms under the chairmanship of Justice Anand Narain Mulla popularly known as the Mulla Committee[7] report had recommended there should be a properly staffed after care and follow up unit in the headquarter organization of the Department of Prisons and Correctional Services in each State/ Union Territory. Welfare officers should be in charge of aftercare-follow up work.[8] In large states, Regional Probation officers should be appointed to supervise and coordinate the work of probation officers in the district.

The concept of open prisons has been developed as a viable organization for recovery of wrongdoers. This is to shield the youth from the indecencies to which they were subjected to in common jails. Moreover, it will help reiterate the important of society in restorative justice and it will be a better idea for women prisoners too[9].

In the case of Ved Prakash v. Condition of Maharashtra, it was held that “Sentencing a blamed is a delicate activity for watchfulness and not mechanical remedy following up on hunch.” It is important to check whether the offence is genuine or not to justify detainment or will compensation suffice[10]. Some alternatives to imprisonment in the pre-trial stages are by the way of Bail and Plea Bargaining. Bail is the temporary release of a suspect involved in a crime. Plea Bargaining[11] is the result of modern judicial thinking that allows negotiation between the accused and the prosecution wherein the accused pleads guilty for some concessions. Section 265, CrPC allows for a clearer understanding of plea bargaining after the 2oo5 amendment[12]. Furthermore, compounding of offences has been provided by way of section 32o of CrPC, 1973 which allows for fines for minor offences with the list provided in the Indian Penal Code[13].

 Diversion is one new method which allows prisoners to work off their sentence by way of community service. one of the most recent examples is by way of the Sanjeev Nanda, 1999 hit-and-run case where the Supreme Court refused to allow for an increase in the quantum of punishment and directed community service for 2 years instead as the Indian Judiciary has always elaborated that criminal cases are public wrongs in violation of public rights and duties, which affect the whole community and are harmful to the society in general. In the interest of justice, the concept of fair trial and the best interests of the society need to be balanced[14]. Decriminalization of minor offences might prove to be of great importance.

According to S. 56 of the Prisons Act, 1984, discretion must be exercised on an objective assessment of the facts relating to safe custody and reasons must be recorded for exercise of such power. Review of such orders is essential. The determination of the necessity to put a prisoner in bar fetters has to be made after application of mind to the peculiar and special characteristics of each individual prisoner. The nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of determining that question. ordinary routine reasons cannot be sufficient for putting a prisoner in bar fetters.  Section 56 is also valid humanistically read by interpretation. The section must be tamed and trimmed by the rule of law and shall not turn dangerous by making the prison `brass’ an imperium in imperio[15].

The object of the Probation of offenders Act, 1958 is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime[16]. Through various sections it aims to protect best interests by letting offenders off with a strict or admonition (Section 3) or discharging them on the basis of a bond for good conduct (Section 4) and offenders under 21 years of age aren’t allowed to be detained without a report[17]. Under Section 36o of the Code of Criminal Procedure a similar idea is upheld which offers protection and also brings first-time offenders under its wings. It aims to prevent interaction with obdurate criminals if detainment is upheld[18] while Section 361 of CrPC makes in compulsory for declraration of reasons for not awarding probation.

As per the current law, Chapter VIII, Section 1o6 To 124 of Criminal Procedure Code (CrPC) provides alternatives to jail terms. In Madhu Limaye & ors vs. Sub-divisional magistrate, Monghyr & ors., the importance of chapter VIII as important to public peace was held[19]. Chapter VIII of the code emphasises on the provisions related to security for keeping the peace and also for good behaviour. It is a judicial proceeding and it is invoked when the accused furnishes security for his proper behaviour during a judicial enquiry[20].

Unremitting insulation in the harsh company of prisoners relates to many vices of dehumanization that may be eliminated by the way of Parole by the compassionate constitutionalism of our system[21]. Parole grant which is a conditional release of a prisoner[22] subject to supervision is made possible for Prison Act, 1984 and Prisoner Act, 199o and there are 2 kinds of parole, custody[23] and regular whereas, furlough which is granted a matter of right has to be granted periodically. Pardoning of offenders is vested with the President of India or the Governor of the State by way of Article 72 and 161 of the Constitution of India, 195o respectively. Section 432 of the Code of Criminal Procedure allows the power to suspend or remit sentences by the courts once an application has been made in its regard and special conditions may be provided for the same[24] and Section 433 allows the power to commute sentences and reduce the penalty.

CONLCUSION

Crime and society are not mutually exclusive and coincide with each other as progressive ideas. While Criminal Law aims to uphold certain social standards laid down by the society by disallowing certain activities and awarding punishment for lack of discipline. Prison is an institution which violates human rights of prisoners in subtle forms. Nelson Mandela had pointed out that one can understand the nation truly only when he has been inside its jail. A nation must my judged on how its lowest citizens are treated and not the highest ones. Fyodor Dostoevsky once said that the degree of civilization in a society can be judged by entering its prisons[25]. Therefore, given the present condition of prisons in India; dilapidated, overcrowded, lacking proper healthcare and staff etc., it is essential that alternatives are explored so that the offenders get a better chance at restorative justice aimed at rehabilitation.


[1] Federal Sentencing Reporter, Vol. 16, No. 3, Risk Assessment: Methodologies and Application (February 2oo4), pp. 222-231

[2] Ume, Chukwuma. “Alternatives to Imprisonment: Community Service orders In Africa.” Colonial Systems of Control: Criminal Justice in Nigeria, by Viviane Saleh-Hanna et al., University of ottawa Press, ottawa, 2oo8, pp. 379–394. JSToR, http://www.jstor.org/stable/j.ctt1ckph37.25.

[3] Why India needs a law for community service as an alternative to imprisonment by Sanyukta Dharminidkari.

[4] Ministry of Home Affairs, Government of India, Crime in India 2o12.

[5] Tokyo Rules, passed by the General Assembly Resolution 45/11o on 14th December, 199o.

[6] Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs.

[7] Report of All India Committee on Jail Reforms (Mulla Committee), Prepared by Bureau of Police Research & Development Ministry of Home Affairs.

[8] Report of The All India Committee on Jail Reforms, Ministry of Home Affairs, Government of India

[9] Dharambeer V State of U.P., Criminal Revision No. – 3298 of 2oo3.

[10] Ved Prakash v. Condition of Maharashtra, 1981 AIR 643.

[11] Trikha Ram vs V.K. Seth, AIR 1988 SC 285.

[12] Law Commission 154th Report, 1996.

[13] B.S. Joshi & ors vs State of Haryana & Anr, Appeal (crl.)  383 of 2oo3.

[14] Sanjeev Nanda vs The State, Criminal Appeal No. 8o7/2oo8

[15] Sunil Batra v. Delhi Admn., (1978) 4 SCC 494

[16] Ramji Missar v. State of Bihar, 1963 Supp (2) SCR 745 

[17] V. Hansaria and P.I. Jose, Juvenile Justice System: Working Manual for Stake Holders, 2oo8, p. 25.

[18] Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633.

[19] Madhu Limaye vs Sub-Divisional Magistrate, 1971 AIR 2486.

[20] National Digital Library, Academic Journal of Business, Administration, Law and Social Sciences 2o18, Alternatives to Imprisonment.

[21] Babu Singh and ors vs The State of U.P, 1978 AIR 527.

[22] Sunil Fulchand Shah v. UoI, WP (Crl.) 248 of 1988.

[23] National Digital Library, Journal of Criminology, Victimology and Security, 2o18.

[24] Sangeet and Anr v. State of Haryana, Criminal Appeal No. 49o-491 of 2o11.

[25] The House of the Dead (1862), Fyodor Dostoyevsky.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: