Open Access Research Article
ALTERNATIVE TO PUNISHMENTS IN INDIAN JUDICIARY
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Article Details
ALTERNATIVE TO PUNISHMENTS IN INDIAN
JUDICIARY
AUTHORED BY
- UDAYANIDHI P1
ABSTRACT
The present paper deals with the Alternatives methods
of punishments. It starts with analyzing the meaning and modes of alternatives to
punishment which does not only aim to prevent the crime from the society and also is responsible for providing
satisfaction to the victim. India criminal
justice system has increasingly recognized the limitations of traditional
punitive approaches and has been exploring alternative methods that prioritize rehabilitation, restoration, and reintegration. However,
in recent years, there has been a growing recognition of the limitations and adverse consequences associated with an
over-reliance on punishment, particularly
for non-violent crimes and juvenile offenders. As a result, various
alternatives to punishment are being explored
and implemented across
the country. This paper also examines the different alternatives to punishment
that have gained traction in India. These include restorative justice practices
like victim-offender mediation
and community conferencing, diversion programs that channel offenders toward
rehabilitative measures, probation and parole systems,
open prisons emphasizing reformation, community service
orders, and specialized approaches like therapeutic jurisprudence and juvenile
justice boards.
Keywords: Alternatives, Punishments, Victim satisfaction, Reformation and rehabilitation.
1 Student pursuing LLM (Criminal
Law and Criminal Justice Administration) at School of Excellence in Law, Tamil
Nadu Dr. Ambedkar Law University.
INTRODUCTION
The fundamental aspect of criminal law and policy is the punishment of
offenders. It becomes challenging
for the judiciary to uphold the principles of proportionality, consistency, and fairness in sentencing given the
discretionary power vested in it and the variety of sanctions available. The achievement of sentencing goals in India
has been impeded
by this difference in sentencing.
Section 53 of Indian Penal Code, 1860 and deals with the kinds of punishment that are generally awarded to the offenders in India. However, the problems faced
by the judiciary are not with punishing the offenders rather
the problems that stem from this are overcrowding, trial
delays, torture and other
cruel treatment, disregard for one's health and hygiene, inadequate clothing and food, prison vices, poor
communication, streamlined jail visits, and oversight of open-air prisons. Criminal justice system
administrators should be aware that certain freedoms and rights are essential
to human existence
and cannot be taken away. These include
the fundamental right to
safety or a sufficient standard of living, which includes access to enough food, water, shelter, sanitary
conditions, air conditioning, clothing, bedding, and opportunities for physical activity. This implies that
protecting this large population in jails requires a lot of resources, and that not having enough of
them will result in inmates' human rights being violated. The Apex Court in
the Mohammed
Giasuddin v. State of Andhra Pradesh2observed that the judges should be offered a wide
range of options for sentencing offenders so that the purpose of
punishments can be achieved.
In
India, as in many parts of the world, the traditional approach to dealing with
wrongdoing has often been punitive in
nature, involving measures such as incarceration, fines, or other forms of punishment. However, in the recent years there is an awareness
arising in the criminal justice system regarding the disadvantage
of imprisonment. The Ahmedabad government in
2014 revealed a study carried out by the Police States that only 20% of
the crimes take place in the city are by the ‘recidivist’ and balance remains
‘petty offenders’3. Therefore, incarceration leading to creation of gang between the prison
inmates and other illicit activities could be avoided by using alternative mode of punishment.
2Crl. Appeal no. 195 of 1977, AIR 1977 (3) SCC 287.
3 Parth Shastri, Over 20% petty crimes
in Ahmedabad committed
by habitual offenders, THE TIMES OF
committed-by-habitual-offenders/articleshow/35855744.cms (last visited Apr 1, 2024).
ALTERNATIVES TO PUNISHMENT
In India, In India, the exploration and implementation of alternatives to
traditional punitive measures
are gaining momentum
as the limitations of punitive
approaches become increasingly evident. The Indian
Penal Code, 1860 is a substantial law that primarily
consist of the offences and punishment awarding to the offenders
and the Code of Criminal Procedure, 1973 is a
procedural law focuses
on the administration of criminal
justice. While punishment has traditionally
been a cornerstone of criminal justice systems worldwide, contemporary legal perspectives emphasize the importance of
alternatives to punishment. In India, the CrPC
provides for various
measures beyond conventional punishment to address
the complexities of crime and promote
rehabilitation. The court have resulted
in development of various alternative to punishment,
which are available in three stages:
·
Pre-Trial Stage
·
Sentencing Stage
·
Post- Trial stage
1. PRE-TRIAL
STAGE
A.
Plea- bargaining
The plea-bargaining has been introduced by Parliament of India through
the Code
of Criminal Procedure (Amendment)
Act, 2005, passed by the Parliament and it has come into force from July, 2006. Chapter XXI-A, Section 265A to 265L4
of the Criminal Procedure Code, 1973 delas with plea-bargaining to allow plea under specified condition. Plea-bargaining in its most basic form means negotiating
for accepting the guilt and bargaining for a lesser sentence. It is a pre-trial negotiation, where the accused
agreed to plead guilty, in exchange negotiate
the sentence to be decreased. Under plea-bargaining, the accused and the
prosecutor bargain wherein
the accused present a no content in exchange for a lesser sentence.
The Law Commission of India recommended the introduction of concept of plea-bargaining in their
154th report.5 In
the beginning there was an opposition arising from the legal experts as well as the judiciary. Subsequently, the necessity of the plea-bargaining concept was emphasized in its 177th report, published
in 2001. Additionally, the Justice Malimath
4 Inserted by Criminal
procedure (amendment) act, 2005 in Act no. 2 of 1974.
5 Law Commission of
India, 1996 report.
Committee
supported several of the Law Commission's plea-bargaining proposals in 2003 and proposed changes to the
criminal justice system.
In the case of Natwar Harchandji Thakor v. State of Gujarat,6 the legitimacy and constitutionality of plea bargaining were resolved. The court acknowledged the benefits of plea bargaining and held that each "plea
of guilt," which is regarded as a step in the criminal trial process,
should be considered individually rather
than evaluated based on the facts.
EXCEPTION OF PLEA-BARGAINING
v Offence that are punished with death, life or
a term exceeding 7 years
v Offence against
women (354 to 354D or 376, IPC)
v Offence against
children under age of 14
v Offence affecting the socio - economic condition of country
v Apart from
this, the court finds that person has been convicted under the same offence previously or the application is not made voluntarily.
B.
Compounding of offence
The concept of compounding of offences deals with the section 320 of the Code of Criminal Procedure, 1973 refers to the process
by which certain
offences can be settled or compromised between the accused and the victim or
complainant, subject to certain conditions. It is an alternative to the regular punishment prescribed for the offence, and it allows
for the case to be disposed
of without a full trial or conviction. Certain offences like mischief, criminal
trespass and assault which can be compounded between the parties
without the permission of the court.
However, certain more serious offences
like theft, cheating, criminal breach of trust etc, require prior
permission from the court
before being compounded.
The Supreme Court in case of Gian Singh’s v. State of Punjab7, affirmed that if the subject to be compounded is civil in nature or pertains to the parties in their individual capacities, the high court may Quash the criminal proceedings. The court also emphasized that this concept is predicated on the idea that, in situations where the offenses are not serious, goodwill between the parties should be encouraged and a peaceful resolution should occur.
6 2005 (1) GLR 709.
7 AIR 10 SCC 303.
The Court also upheld that in State of Madhya Pradesh V.
Lakshmi Narayanan8, it was
affirmed that High Court has the inherent
power under section
482 to quash the non- compoundable offence to be compounded if the case pertains to the civil nature.
1. Offences that can be compounded: Offences
that can be compounded are generally those
that are less serious and primarily affect
the private interests
of the individual, such as offences related to causing hurt, wrongful
restraint, defamation, criminal trespass, and certain offences under
the Indian Penal Code (IPC)
related to property.
2. Persons who can compound: The persons
who can compound an offence depend on the nature
of the offence. In most cases, the victim or the person to whom the offence was committed
can compound the offence. In certain cases,
the legal heirs or representatives of the victim
can also compound the
offence.
3. Procedure for compounding: The
compounding of an offence can take place at any stage of the case, either before or after
the institution of the
prosecution. The accused
and the victim
or complainant can agree to compound the offence, and the court, after
considering the circumstances, can allow the compounding and dismiss
the case.
4. Offences cannot be compounded: Certain offences, such as those against the state, offences
affecting public interest, or those involving moral turpitude, cannot be
compounded and must be prosecuted through the regular judicial
process.
C.
Imposing the time limits of Pre-Trial detention:
According
to Article 21 of the Indian Constitution, which guarantees the right to life
and personal freedom, the right to a
quick trial is a basic right of a prisoner. The Indian Supreme Court has stressed the constitutional
right to a prompt trial numerous times and established a number of recommendations in this area. The right to speedy
trial flowing from Article 21 encompasses
all the stages, like investigation, inquiry, trial, appeal, revision and
retrial. The Criminal Courts have
been given power under sections 309, 311 and 258 of the Code of Criminal Procedure, 1973, to effectuate the right to speedy trial.
Currently, depending on the term of imprisonment for the offense,
Section 167 Cr.P.C.
sets an outer limit of 90 or 60 days for keeping the detained
individual in custody
(both police and
8 AIR 2019 SC 513.
judicial custody
combined) before submitting a chargesheet against
him in court. Nonetheless, there is no upper limit on the length of
time that can be spent holding someone in custody following the filing
of a charge sheet against them in judicial custody.
An amendment to the Criminal
Procedure Code was adopted in 2006, adding
section 436-A to the code to eliminate this Injustice.
According to the section 436-A, an undertrial prisoners who has been detained for a period equal to half of the maximum
amount of time allowed for the
alleged offence and who is not the accused of an offense for which the death
penalty has been prescribed may be released on a
personal bond with or without sureties.
D.
JUVENILE JUSTICE
The
Indian government ratified the previous juvenile law and ratified the
Convention on the Rights of the Child
in 1992, adhering to the Convention's requirements and the Beijing Regulations. The Juvenile Justice (Care and protection) Act, 2000 adopts a
child-friendly approach
in the adjudication relating to Child in conflict
with law9. The object of the Act is to reform and rehabilitate the juvenile offender as useful
citizens in the society.
The
Act ruled out the imprisonment of Child in conflict with law. If any such minor
is taken into custody by the police under Section 10 of this Act, he will be placed under the supervision of the Special
Juvenile Police Unit or the assigned police
officer, who will then promptly
report the incident
to a member of the
Juvenile Justice Board
established under Section
4 of this Act. According to Section 12 of this Act, when any juvenile
accused of a bailable or non-bailable is arrested or be detained, appear before a Board, and be released
on bail with or without
a surety by the Board,
regardless of any provisions in the Cr.P.C.,
1973, or in any other law for the time being in force.
The Juvenile Justice (Care and
Protection of Children) Act, 201510, was the last major amendment made to the Juvenile Justice Act
in India. This amendment replaced the earlier
Juvenile Justice (Care and Protection of Children) Act, 2000. The 2015 amendment was aimed at bringing the Juvenile Justice Act in line with international standards and the principles of the United Nations Convention on the Rights
of the Child. It also sought to strike a balance between
the need for child protection and the demands of justice in cases
involving serious offenses committed
by children aged 16-18 years.
9
Section 2(13)
of Juvenile Justice (Care and protection) Act, 2015.
10 Act no.
2 of 2016.
KEY HIGHLIGHTS OF 2015 AMENDMENTS:
1) Introduction of the concept of "heinous offenses"11 for children aged 16-18 years,
which allowed the transfer of cases involving such offenses to regular courts.
2) Mandated setting
up of Juvenile Justice Boards
and Child Welfare
Committees in every
district.12
3) Established a Juvenile Justice
Fund for the welfare
and rehabilitation of children.13
2. SENTENCING STAGE
Under Indian Penal Code, 1860 defines different types of
punishments are prescribed for different
offences. Section 53 of Indian Penal Code provide the punishment to which the offenders
are liable under the code:
i.
Imprisonment for life
ii.
Imprisonment Rigorous or Simple
iii.
Forfeiture of property
iv.
Fine
Thera are 5 types of punishment prescribed under Section 53 of the Indian
Penal Code, 1860. The act amended the
Indian Penal Code, by the Parliament that is Bharatiya Nyaya Sanhita, 2023. Section 4(f) of BHARATIYA
NAGARIK SANHITA, 2023 includes COMMUNITY
SERVICE as a form
of punishment.
A.
RELEASE ON ADMONITION
In the Criminal Procedure Code,
an 'admonition' refers
to a warning or reprimand
given by the court to the accused
person in certain
cases, instead of imposing a sentence or punishment. The concept
of admonition is dealt with under Section 360 of the
CrPC.
Section
360 of the CrPC empowers the court to release an accused person on admonition
in certain cases, where the accused
appears to have committed an offence punishable with imprisonment for not more than two years, or with a fine, or with both. The court may, after
11 Sec 2(33)
of, Act 2 of 2016.
12 Sec 2(33)
of, Act 2 of 2016.
13 Chapter VIII of Act 2
of 2016.
considering
the age, character, antecedents, and other circumstances of the accused person, release
the accused person
on admonition, provided
the accused person has not been previously convicted. Azar Khan v. State of Uttar Pradesh14.
The Supreme Court held that the power to release
an accused person on admonition under Section 360 of the CrPC should be
exercised with caution and only in exceptional cases, where the court is satisfied that the accused
person is not likely to commit any further offence.
Section
3 of PROBATION OF OFFENDERS ACT, 1958 defines power of court to release certain
offenders after Admonition:
“When any person is found guilty of having committed
an offence punishable under section
379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence
punishable with imprisonment for not more than
two years, or with fine,or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then,
notwithstanding anything contained in any other law for the time being in force, the court may, instead of
sentencing him to any punishment or releasing him on probation of good conduct under
section 4, release
him after due admonition”
In
Babloo
Sharma v. State of Rajasthan 15, the Rajasthan High Court held that the power to release an accused person on admonition
should be exercised only in cases where the accused person has committed a minor offence and is unlikely
to commit any further
offence.
It
is pertinent to note that in the State of Maharashtra v. Sayyed Maheboob 16,
The Bombay High Court held that the power
to release an accused person
on admonition should
be exercised with
caution and only in exceptional cases, where the court is satisfied that the accused
person has realized
the mistake and is unlikely to commit any further offence.
14 AIR 1999 CLJ 3989.
15 AIR 2008 CLJ 2897.
16 AIR 2010 CLJ 4579.
B.
PROBATION
Probation is a form of extra-mural form of treatment i.e. treatment outside
the four walls of the prison.17 The concept of
probation is provided under the Code of Criminal Procedure (CrPC) through Sections 360, 361, and 362.
Probation is a system of releasing an offender on certain conditions instead of sending them to jail, with the aim
of reforming and rehabilitating them.
Section
360 of the CrPC deals with the release of an accused person on probation of
good conduct. The court may, after considering the age, character, antecedents, and other circumstances of the accused
person, release the accused person
on probation of good conduct
instead of sentencing them to imprisonment or fine, provided the accused
person has not been previously
convicted and the offence is punishable with imprisonment for not more than two years or with a fine or with both. In Madan
Lal v. State of Punjab18, the Supreme Court held that the power
to release an accused person
on probation should
be exercised with caution and only in exceptional cases, considering the age, character, and antecedents of the accused
person, as well as
the nature and circumstances
of the offence.
Section
361 of the CrPC provides for the manner of dealing with convicted individuals
who are released on probation.
Section 362 of the CrPC deals with the provisions for dealing with individuals who fail to observe the conditions of their
bond or probation.
In
the case of Abdul Qayyum v. State of Bihar19, the court noted
that if the offender was eighteen
years old, in good physical and mental health, showed interest in his work, and
his father had reasonable control
over him and if there was no record of the offender's character or evidence of a prior conviction he was entitled to be released on Probation.
Offenders
who have committed minor crimes for the first time may be subject to these procedures under THE PROBATION OF OFFENDERS ACT, 1958. Under
the supervision of probation officers, they may be released on probation. If offenders swear to behave
properly, they may be
released on probation without the oversight of probation officers. There is
also a restriction on imprisonment of
offenders under 21 years of age, if they have not committed an offence
punishable with life imprisonment. Such an offender
must be released
either on
17 James B. Moore, Treatment & Supervision of Probated Felons, Journal of Employment Counselling, Vol. 16, 1979.
18 AIR 1970 SC 1963.
19 AIR 1972 SCC 214.
admonition
or probation unless there are reasons to be recorded having regard to the
nature of offence and character of offender.
C.
COMMUNITY BASED SERVICES
There is no mention of the word or any definition of Community services
in the Indian Penal Code, 1860. However,
in Bharatiya Nyaya Sanhita20, 2023 defines ‘COMMUNITY SERVICE’ as a type of punishment under section 4(f) of the Sanhita.
Community-based services
as an alternative to punishment have been gaining
traction in recent
years as a more restorative and rehabilitative approach
to addressing criminal
behaviour. These services aim to divert
individuals away from the traditional criminal justice system
and provide them with the necessary support
and resources to address the underlying issues that led to their actions. Some of the Community Services as an alternative to punishments are
1. Rehabilitation and support services:
These services typically
provide access to counseling,
substance abuse treatment, educational and vocational training, mental health services, and other supportive programs
designed to address the root causes of criminal behavior and equip individuals with the tool to
make positive changes in their lives.
2. Community involvement: Community-based services
often involve collaboration between various stakeholders, including law enforcement, social service providers, community organizations, and victims. This approach fosters
a sense of community ownership and accountability in
addressing criminal behavior and its impacts.
3. Cost-effectiveness: In many cases,
community-based services can be more cost-effective than incarceration, as they avoid the high costs associated with
maintaining prisons and provide opportunities for individuals to become productive members of society.
4. Diversion programs: These services often take
the form of diversion programs, which allow
eligible individuals to avoid formal criminal charges or convictions by completing specific
requirements, such as treatment, counseling, or community
service.
While
community-based services are not suitable for all types of offenses or
individuals, they offer a promising alternative to traditional punishment for certain cases, focusing on rehabilitation, accountability, and community involvement.
20 Act 45 of 2023.
D.
RESTORATIVE JUSTICE:
Restorative justice is an approach that focuses on repairing the harm
caused by criminal behavior and
addressing the needs of both the victim and the offender, rather than solely punishing the offender. It has gained
increasing recognition as an alternative to traditional punitive measures in the
criminal justice system.
Restorative
justice is an emerging approach that prioritizes repairing the harm caused by criminal behaviour over solely punishing
offenders. It involves facilitated dialogues between victims, offenders, and community members, allowing victims to
voice the crime's impact while
offenders take accountability and make amends through restitution, community
service, or agreed-upon measures. Offenders gain access to counselling, education, and support services
to address underlying factors contributing to their actions. This
community-involved process aims to
promote victim healing, offender rehabilitation, and successful reintegration.
By focusing on harm reparation,
accountability, and support, restorative justice programs have demonstrated effectiveness in reducing
recidivism rates compared
to traditional punitive
measures. While not suitable for all crimes, this alternative offers a
more holistic, victim- centered
approach toward achieving meaningful outcomes for those impacted and fostering positive
behavior change.
Traditional Practices: India has a rich tradition
of community-based conflict
resolution mechanisms, such as
panchayats (village councils), which have been used for centuries to resolve disputes and restore harmony
within communities. These practices often involve mediation and
reconciliation, which align with the principles of
restorative justice.
Legislative Framework: In recent years,
there have been efforts to integrate restorative justice principles
into India's legal system. The Criminal Procedure Code (CrPC) was amended in 2009 to introduce provisions for
victim-offender mediation and plea bargaining, which are considered forms of restorative justice.
Rehabilitation
and support: Restorative justice programs often provide offenders with
access to counseling, education, job
training, and other support services to address the underlying factors that contributed to their criminal
behavior and facilitate their successful reintegration into the community.
E.
COMPENSATION TO VICTIMS
Courts may order criminals to pay appropriate compensation for any damage
or harm caused to any person as a
result of their offenses under Sections 357 to 359 of the Cr.P.C., 1973. In addition
to any other further penalty,
the courts award compensation. It is not a stand-
alone sentence substitute for
a brief jail sentence.
Chapter XXVII, Section 357A21
of Criminal Procedure Code, 1973 provides provision for the Victim Compensation scheme for the welfare and
rehabilitation of the victim.
In 2009, the central government gave directions to every state to prepare
a scheme that has to be in agreement
with the center’s scheme for victim compensation under Section-357A of CrPC. The primary purpose of this scheme
is to provide fund to compensate the victim or his dependents who have suffered any loss or injury as a result
of the crime and need rehabilitation. Section
357B
and 357C 22 was inserted by the
Criminal Procedure (Amendment) Act, 2013
·
According to Section
357A, each State Government must develop a plan in consultation with the Central
Government to provide
funds for compensating victims or their dependents who have experienced loss or injury and need rehabilitation.
·
Section-357B, the State Government's payment of
compensation under Section- 357A must
be made in addition to the victim's payment of a fine under Sections 326A, 376AB,
376D, and 376DB of the IPC, 1860.
·
Section 357C, all hospitals either
public or private,
that are operated
by the Central government or
state governments or local governments, or any persons must give victims of crimes covered by Sections
326A, 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB, or Section-376E of the Indian Penal Code first aid or medical treatment without charge as soon
as possible. They must also notify the police of the
incident right away.
21 Amendment to Act 5 of 2009 (w.e.f.
31-12-2009).
22 Amendment to Act 13 of 2013
(w.e.f. 03-02-2013).
3. POST-SENTENCING
A.
PAROLE
The
Code of Criminal Procedure does not explicitly define Parole However, Section
432 of the CrPC empowers the
appropriate government to commute a sentence or suspend its operation for a specific period. (CrPC),
parole is a temporary release of a prisoner from jail or prison for a specific period of time. It is a concession
granted to convicts as a matter of favor and
not as a matter of right. The provisions related to parole are contained in
various state prison manuals
and model prison manuals.
The Supreme Court case of Smt.
Poonam Lata v. Waden23 provides insight into the history of parole,
since it established that the notion
originated in military
law and pertains to the release of prisoners of war on the condition of
their return. This means that all fixed-term sentences that last longer than 18 months are subject to license release,
which means that they can be released after serving out one-third of their
sentence.
The
Prison act of 1894 and Prisoners Act of 1900 set forth regulations that governs
the Parole system in India Every
State has slightly different regulations in this regard. In India, parole decisions are made in accordance with the
Prison Act of 1894 and the Prisoners Act of 1900. The Prisons Act, 1984, Section 59(5), which grants the government
the authority to enact regulations, was used to justify the release of the Prisons
(Bombay Furlough and Parole) Rules,
1959.
Eligibility for Parole
·
A convicted person must have spent a minimum of one in
jail, not including any time spent
in remission.
·
The prisoner had to
behave well at all times.
·
If parole was already granted, the offender should not
have committed any offenses during that time.
·
The convicted party wasn't supposed to have
disregarded any of the conditions and limitations of their prior release.
·
A minimum of six months should
have passed since
the previous parole
was terminated.
23 AIR 1987 SC 1383.
In Suresh Chandra v. State of Gujarat 24 it was stated
that Parole is regarded as an innovation in penology and has resulted in reforming the offender thereby
stopping him from doing the same offence again.
In
Dharambir
and Another v. State Of U.P It
was directed by the Apex Court that such prisoners
who are serving long time in jail be given two weeks once a year throughout
their period of imprisonment.
B.
PARDON
Since offences are committed against the State, the Indian law does not
permit the victim to grant pardon.
The power to grant pardon or executive clemency is vested to the Head of the State. In India, the power to grant
pardons is vested in the President of India under Article 72 of the Constitution of India. This power
allows the President to grant pardons, reprieves, respites, or
remissions of punishment to individuals convicted of certain offenses.
Pardoning power of President
Article 72 of the Constitution of India provides power to the President
to grant emission to a convict has to
be exercised on the advice of the Council of Ministers Union of India vs Sriharan (2016)
Ø Punishment or sentence is for an offense against a Union Law or the offense made under Concurrent List.
Ø Punishment or sentence is by a court martial
(military court); and
Ø The sentence
is a sentence of death
Pardoning power of Governor
Article 161 of Constitution of India provide
power to the Governor of State to tender a Pardon.
Ø The Governor
does not have the authority to pardon court-martial penalties; instead, the President
may pardon sentences from military
courts.
24 2016 (7) SCC 1.
Ø The
governor is not permitted to commute a death sentence, but the president may. Even in cases
when a state statute specifies
the death penalty,
the President, not the governor, has the authority to pardon.
Nonetheless, the governor can choose to commute,
remit, or suspend a death sentence. Stated differently, the authority to suspend, remit, or commute a death
sentence is shared by the governor and the president.
Process Of Grant of Pardon
a) The mercy
petition is filed
by the concerned person to the President under Article 72
b) Such petition
is transferred to Ministry of Home affairs
for consideration
c) The above petition was discussed by the Ministry
of Home Affairs
in consultation with concerned
state Government.
d) After the consultation, recommendation made by the Home Minister
and send them
back to the President.
The power of pardon is considered a constitutional safeguard to correct judicial
errors or to show leniency
in appropriate cases. However, it's important to note that the power
to pardon is discretionary and is usually
exercised based on the advice of the government. Typically, requests for pardons
are thoroughly reviewed
by the President or relevant
authorities before a decision
is made.
C.
OPEN PRISON SYSTEM
India has a long history of using open prisons in one form or another.
There are 26 open prisons in India,
with a total capacity of 4353. For a variety of reasons, open jails have fared better in some Indian states than in
others. Inmates serving life sentences are moved to open prisons due to their good behaviour. Various steps have been
taken in several Indian states to open
prisons. Through the instillation of a sense of responsibility, the Open
Prisons help individuals regain
their dignity and develop a sense of self-confidence and self-reliance. There
are similar open prisons in several
Indian states.
According to the Merriam Webster Dictionary, an open jail is one where inmates are allowed
freedom as opposed to a regular prison. The Rajasthan Prisoners
Open Air Camp Rules,
Section 2(A), defines an open jail as
"a place declared for the detention of prisoners to be an Open Air
Camp,"25 or, in simple
words "prisons without
walls, bars, and locks.
Ø Open
prisons or open-air camps do exist in several states like Rajasthan, Delhi, Maharashtra etc. These allow selected
inmates to live with minimal supervision and
engage in paid employment or vocational programs outside.
Ø Open
prisons aim to aid rehabilitation and prepare inmates for reintegration into society
after release through semi-open
environments.
In
State of Karnataka v. Rama Murthy (1997), a petition in form of letter
was addressed to Chief Justice India
over the subject of inmates' wages not being paid for their labor. It was mandated that the Bangalore District Judge
visit the Central Jail and provide a report with specific suggestions,
including:
a. PWD maintains
the structure in an appropriate manner.
b. Better sanitation is required.
c. Adding at least two additional doctors with specialized
training to the jail population.
d. Schedule routine
house visits for inmates on a periodic basis.
INTERNATIONAL FRAMEWORK
ON ALTERNATIVES TO PUNISHMENT
The international community has recognized the need to explore alternatives to imprisonment, particularly for non-violent offenses, as
part of broader efforts to reform criminal justice systems and promote more humane, effective, and sustainable
approaches to addressing crime and fostering
public safety. Several
international frameworks and initiatives have been developed to encourage and guide countries
in adopting and implementing non-custodial measures as alternatives to traditional punitive approaches.
1. One of the most significant international instruments in this regard
is the United Nations Standard Minimum
Rules for Non-custodial Measures, also known as the Tokyo Rules, adopted
in 1990. There are several
international frameworks and initiatives that promote
alternatives to imprisonment and punitive approaches to justice, particularly for non-violent
offenses.
25 Rajastan Prisoners open Air
Camp rules, 1972.
2. United
Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules): Adopted
in 1990, these rules provide
a set of guidelines for promoting the use of non-custodial measures
and alternatives to imprisonment, such as community
service, probation, and restorative justice programs.
3.
United Nations Rules for the Treatment of Women Prisoners
and Non-custodial Measures for Women Offenders (The Bangkok Rules): Adopted in 2010,
these rules supplement the Tokyo
Rules and provide specific guidance on developing gender- sensitive
alternatives to imprisonment
for women offenders.
4.
United
Nations Office on Drugs and Crime (UNODC) Criminal Justice Reform initiatives: The UNODC has been actively
promoting criminal justice
reform, including the use of alternatives to imprisonment,
as part of its work on crime prevention and criminal justice.
5.
Council of Europe Recommendations and Resolutions: The
Council of Europe has adopted several
recommendations and resolutions encouraging member states to develop and implement alternatives to
imprisonment, such as probation, electronic monitoring, and community service.
6.
European Union initiatives: The EU has funded various
projects and initiatives aimed at
promoting the use of alternatives to imprisonment, particularly for non-violent offenses,
such as the European Union
Criminal Justice Programme.
7.
Non-Governmental Organizations (NGOs):
Several international NGOs, such as Penal Reform
International (PRI) and the International Centre for Prison
Studies (ICPS), have been
actively advocating for the use of alternatives to imprisonment and providing technical
assistance to countries in developing
and implementing such measures.
These international frameworks and initiatives recognize the potential
negative impacts of imprisonment,
particularly on vulnerable groups, and the potential benefits of alternative measures in terms of reducing recidivism,
promoting rehabilitation, and reducing the social and economic costs
associated with incarceration.
CONCLUSION
In conclusion, there are several effective alternatives to punitive
approaches that can promote positive behavior
change and accountability without the harmful
effects of punishment. Restorative justice practices like victim-offender dialogues,
community conferencing, and peace-making
circles allow offenders to take responsibility, understand the impacts of their actions, and make amends. Rehabilitation
programs focused on counseling, education, job
training, and addressing root causes like mental illness
or substance abuse can reduce recidivism
rates. Positive reinforcement techniques that provide incentives and rewards
for good behavior have also shown success,
especially for youth. While punishment may seem like
a straightforward solution,
these alternative approaches grounded in restoration, prevention and behavior change represent a more humane
and effective path forward for
creating safer communities long-term. By prioritizing accountability, support services, and addressing underlying issues, society can break cycles
of crime and violence.
REFERENCES:
Article Information
ALTERNATIVE TO PUNISHMENTS IN INDIAN JUDICIARY
Authors: UDAYANIDHI P
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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