Author:
The author of this article is Varsha S.S a fourth year B. Com LL. B (hons) law student of Government Law College Ernakulam. This article analyses the probation policy and protocols adopted and followed in India.
“If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him. And men are not improved by injuries.” ~ George Bernard Shaw
Introduction
Probation is a privilege granted by the court to a person convicted of a criminal offense to remain in the community instead of actually going to prison. It is an alternative to imprisonment as a form of punishment. Probation is suspension of sentence of an offender by the court and releasing him/her on certain conditions to live in the community with or without the supervision of a probation officer. The practice of probation law averts the stigma of jail life and reduces the ostracism faced by the convict and their family in the society. It is also a solution for the overcrowding in the jail which leads to dehumanizing conditions. Probation ensures that the offender is reformed and reintegrated into the society. This inturn would protect the society from further criminal acts from the offender.
Role of probation officers in reforming the offender is paramount to the safety of the society. Only an insightful and caring officer can change the behaviour of an offender. The success of probation law greatly depends upon the hard work of the probation officer. They have to work closely with various stakeholders such as magistrates, police officers, prison authorities and NGOs for the smooth functioning of the probation system.
Probation policies and protocols main focus is on reforming the offender instead of imprisoning them. This approach might not settle well with the victims of the crime. The crime committed might have severely impacted their emotional, physical, psychological and even financial wellbeing. As part of strengthening the victim support services in the State of Kerala , the Department of Social Justice has started a novel initiative called ‘Jeevanam’ which provides financial aid to the dependents as well as victims of crime. Such programs would greatly help the victims and their family. It would instill a sense of justice in the society while simultaneously reforming the offender.
Types of Probation in Kerala
There are three types of probation systems in Kerala. They are as follows:-
Judicial Probation
As per Prevention of Offenders Act 1958, under the probation wing of the Social Justice Department.
Executive Probation
As per Kerala Jail Rules 2014 and Kerala Borstal Schools Act 1961 under the probation wing of the Social Justice Department.
Juvenile Probation
Juvenile Probation services provide information to judges, monitor Court ordered conditions and services for children and their families to increase the chances of successful rehabilitation of juveniles.
Programs introduced by Government of Kerala in regard to probation policies
There are three projects established by the Government of Kerala in regard to probation laws for the welfare of the offender, victim and children in conflict with law. They are as follows :-
Nervazhi
It is a non – institutional treatment and rehabilitation of offenders in Kerala. It works for rejuvenating and modernizing the probation system in Kerala. It aims to protect the society from crime by reforming and rehabilitating the offender.
The beneficial target group under this project are offenders between age group 18 and 21 who have not committed serious offences, under trial prisoner, remand prisoner, young offenders released on bail, first accused between 18 to 25 years, ex-prisoners and family,Borstal school residents and family members, children of prisoners.
Jeevanam
It is a victim rehabilitation project. The aim of this project is to identify eligible victims to provide livelihood, social-psycho treatment, medical care and legal aid on time. Its aim is to provide financial assistance to dependents of deceased victims and victims affected by grievous hurt to start self employment programs.
Kaaval
A systematic and structured methodology is developed in the state to support children in conflict with law thereby reducing the potential danger of being labelled and isolated from society. This reduces the chances of the child being absorbed into antisocial gangs and causing potential harm to society. Identifying children at high risk at a young age and supporting them by providing holistic care through psychosocial intervention would help children to keep away from unlawful activities.
Probation Policy & Protocols
Section S.562 of the Code of 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. This section deals with release on probation in good behavior of any person not under twenty-one years of age convicted of an offence punishable with fine only or with imprisonment for 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, with regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed. The Court may, instead of sentencing him or her at once to any punishment, direct that he or she be released on his or her 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.
In 1958 the Legislature enacted the Probation of Offenders Act, to provide for release of offenders on probation or after due admonition. It 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 their probation.
In exercise of power conferred by section 17 of Probation of Offenders Act 1958,the Government of Kerala enacted The Kerala Probation Of Offenders Rules 1960.
The Kerala State Protocol On Probation Services is a protocol enacted by the Government of Kerala as per the Probation of Offenders Act 1958 and Kerala Prison Rules 2014. The vision of this protocol is “less crime, more peace”. It’s mission is to ensure :
(i) reduction in prison population
(ii) reduce recidivism
(iii) crime free society
(iv) victim support system
It also deals with major roles and responsibilities of the judiciary, police, prison, social justice department – probation wing, L. S. G, NGOs and community based organizations. The protocol highlights the duties of the stakeholders mentioned above in pre-trial, trial and post trial stages. Kerala Borstal School Act 1961, is an act to make provision for the establishment and regulation of borstal schools for the detention and training of adolescent offenders.
Drawbacks
Protocols and policies are futile if they are not implemented properly. There is a lack of vision or a clear mission for the probation system. The weak awareness about the benefits of effective probation by many stakeholders and the public is a hurdle for reaping its benefits. The Probation Of Offenders Act 1958 and The Kerala Probation Of Offenders Rules 1960 are based on outdated concepts of control. There is a dire need for updates of probation policies and protocols in our nation. Weak inter-departmental synergy between key stakeholders such as judicial officers, probation officers, prison administrators, prosecutors, advocates and police is fatal to the implementation of policies and protocols. Currently there exists no mechanism to classify the offenders benefited under probation. There is also a lack of a high powered body available to monitor, supervise and oversee probation activities. There is a lack of proper implementation of probation policies in our country. There are ample judicial precedents set by the Supreme Court in regard to granting probation according to probation laws and policies. These are not duly followed by the judicial officers while sentencing the offender.
Judicial Precedents Highlighting Importance of Probation Law
1). Ratan Lal v. State of Punjab (Supreme Court of India), 1965 AIR 444, 1964 SCR(7) 676
Both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act. It is true that the appellant did not bring the provisions of the Act to notice of the court till after the disposition of the revision petition, but that does not absolve the court from discharging its duty under the Act.
2). Ram Singh v. State of Haryana 1971(3) SCC 914
Section 4 and section 6 of the Act indicate the procedure requiring the court to call for a report from the P. O and consideration of the report and any other information available relating to the character, physical and mental condition of the offender. These facts are of primary importance before the court can pass an order under the P. O Act.
3) Mysore v. Saib Gunda (1964) Cr. L. J460.
It was laid down that in the absence of a report from the Probation officer , the court has no authority to release the accused on probation.
4) R. Mahalingam v. G Padmavathi and Another (Supreme Court of India ) 1978 LW (Crl)182
Before deciding to act under S4(1) also, it is mandatory on the part of the court to consider the report of the Probation Officer and if such report is received, it is mandatory on the part of the court to consider the report.
5) Musadhan v. State of Maharashtra (AIR 1976 SC 2566)
The effective use of probation is an integral part of the criminal justice system.
6) Mohammad Giasuddin vs State Of Andhra Pradesh 1977(3) SCC 287;AIR 1977 SC 1926
The Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals mental and moral – is the key to the pathology of delinquency and therapeutic role of punishment. The whole man is a healthy man, and every man is born good. Criminality is curable deviance. If every saint has a past, every sinner has a future, and it is the role of law to remind both of this.
Challenges
1)Lack of proper infrastructure and funding.
2) Lack of use of modern technology in the probation system.
3) Offenders are released on probation without a probation report.
4) Lack of adequate time to submit a probation report.
5) Offenders released on probation without the supervision of a probationary officer.
6) Overburden on probationary officers
7) Probation policies would be useless if the probation officers are not interested in social reform.
8) Weak inter-linking between various stakeholders.
9) Offenders lack knowledge about probation, plea bargaining and parole.
10) Victims could feel a sense of injustice.
11) Lack of community awareness and acceptance
12) Lack of NGOs and other support system
Solutions
1)Programs such as Nervazhi, Jeevanam and Kaval face fund crunch. Hence implementation of such schemes becomes difficult. NGOs and other social welfare committees largely contribute to the cause. The Government should increase the funding for such programs and ensure there are necessary infrastructure facilities.
2) It is high time that our judicial and legislative system use modern technology for the smooth functioning of probation policies and protocols. Systems like GPS tracking would enable the probationary officer to closely supervise the probationers. It would help in reducing the chances of probationers leaving the state without prior permission.
3) Probation report should be made mandatory for all cases in which an offender can be given probation. The judge could ask the probation officer to prepare the report while the trial is going on. Releasing an offender without knowing their antecedents, personality and mental attitudes might lead to recidivism because many of them might not favorably respond to this reformatory mode of treatment.
4) In many cases it is difficult to ascertain whether the delinquent is a first offender or a habitual one. Probation officers should be given adequate time for submitting a probation report. They should be specifically trained to write probation reports.
5) It is detrimental to the welfare of the society, the victim and the offender themselves to release an offender on probation without the supervision of the probationary officer. The object of probation laws is to reform the offender. Without proper supervision of an offender it is not fruitful. There would be high chances of re-offending by the offenders released on probation without supervision of a probationary officer.
6) A probationary officer can only deal with a limited number of probationers. They are overburdened with ever increasing crimes. This is due to the lack of an adequate number of probationary officers in service . Even though there is provision in the statute to appoint honorary probation officers, it has not been implemented.
7) The lack of proper training programmes for Probation Officers is a serious pitfall in executing probation policy. It is important to appoint probationary officers who are keen on servicing the society. They should be interested in reforming the offenders. Persons who are experts in social work, law and psychology should be appointed as probationary officers . It would be detrimental to the welfare of the society if the probationary officer does not have the capacity or interest in reforming the offender. There would be high chances of recidivism if the offenders are not reformed and reintegrated into the society.
8) Granting probation would be a tedious process without proper coordination on the part of various stakeholders such as magistrates, police officers, prison authorities, probationary officers and NGOs. They should ensure that all persons eligible for probation are released on probation. This would help in reducing the prison population and it would significantly reduce the cost borne by the Government for maintenance of prisons.
9) The offenders often are unaware about provisions such as probation, plea bargaining and parole. It is the duty of the advocate representing them to make them aware of such provisions. In most cases advocates do not advise the offenders about such provisions. Hence it becomes the duty of probationary officers to inform and make them aware about such provisions.
10) The probation policies and protocols mainly focus on reforming the offenders and their welfare. This approach could give the victims a sense of injustice. Victim rehabilitation should be given equal importance as rehabilitation of offenders. The project Jeevanam does an excellent job at this. The victim of crime should be compensated monetarily in all cases possible. They should be made aware about the importance of reforming the offender rather than imprisoning them. The victims should be counseled and should be made to understand that justice is not about retribution rather it’s about amending the faults done by the offender.
11) Release of offenders on probation is not fruitful if the society doesn’t accept them wholeheartedly. The community has mixed feelings about release of offenders on probation and parole. They fear that the offender would commit offences again. This leads to ostracism of the probationer in the society. To curb this problem awareness programs should be conducted on the importance of reforming the offender and giving them a space in the community to rehabilitate and reintegrate into the society. Engaging the probationers in community services would hugely reduce the stigma faced by them in the community.
12) NGOs help in speeding community awareness about the importance of reforming the offender and their reintegration into the society. Sadly there’s only a handful of NGOs in India that work towards reforming the offenders. With more awareness, there would hopefully be more support systems to help probationary officers.
Conclusion
The success of probation policies and protocols depends upon the overall functioning of various stakeholders such as magistrates, police officers, prison authorities, probationary officers and NGOs. Society should be welcoming of the idea of reformation of offenders. Community awareness and acceptance is the key to the success of probation reforms. The offenders should be willing to accept their fault and make good of the crime committed by them. They should have the moral vision to reform in order to ensure the safety of the society they live in. Finally, the victims of the crime should be duly compensated in accordance with the crime committed against them. They should be given support to live peacefully in the society with dignity. The family or the dependents of the victim and as well as the offender should be taken care of. The projects such as nervazhi, jeevanam and kaaval should be effectively conducted in order to ensure justice in the society. The state may also incorporate programs such as Pattam and Paravai implemented by the state government of Tamil Nadu for probation related aspects. It is the duty of the judiciary to follow the precedents relating to probation laws. They should ensure that all persons eligible for probation are released on probation in accordance with the rules and regulations.
Nelson Mandela rightly said,”No one is born a criminal, it is the circumstances that make one so “. And it is imperative to change the circumstances that lead them to the crime. This is where the probation policies and protocols come in force. Tackling crime is not about punishing the offender rather it’s about healing and reforming them. Probation reforms aim at reforming the offender. Reintegration of offenders into society would ensure reduction in recidivism rate. It would increase the safety of the community and would in turn strengthen the community. The offender is given the opportunity to make good of his or her faults . Certainly there are pitfalls in the probation system. Through proper policy making and correct implementation of protocol these drawbacks could be eliminated.
References
- Directorate of women and child development https://old.wcd.kerala.gov.in/kaval
- The Hindu, Jeevanam Scheme to be extended across Kerala, August 08, 2020, 07:22 IST https://www.thehindu.com/news/national/kerala/jeevanam-scheme-to-be-extended-across-kerala/article32301339.ece/amp/
- Social Justice Department, Nervazhi Modernization and Strengthening of Probation System http://swd.kerala.gov.in/scheme-info.php?scheme_id=MTYwc1Y4dXFSI3Z5
- Sreelakshmi. S, Probation : Best practices in Kerala, LJRF VOICE,
- The Probation of Offenders Act, 1958, NO. 20 of Acts of Parliament, 1958 (India)
