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Probation Law Reforms
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A single doorway to know Probation and the related works done by LJRF in 2021

The author of this article is Praveena. C a member of LJRF Palakkad chapter. She has completed her Graduation and Post Graduation in Law from Government Law College, Thrissur. Currently, she is working as a Research Assistant in the High court of Kerala.

Through this work, she has tried to give a comprehensive idea on the basic concept and legal framework with respect to Probation. Along with that, the works ljrfvoice.com had published on this topic in the year of 2021 are enlisted.

Introduction

The origin of probation can be traced to the English criminal law of the Middle Ages. Harsh punishments were imposed on adults and children alike for offenses that were not always of a serious nature. Sentences such as branding, flogging, mutilation, and execution were common. During the time of King Henry VIII, for instance, no less than 200 crimes were punishable by death, many of which were minor offenses.

This harshness eventually led to discontent in certain progressive segments of English society that were concerned with the evolution of the justice system. Slowly but resolutely, in an effort to mitigate these inhumane punishments, a variety of measures were devised and adopted. Royal pardons could be purchased by the accused; activist judges could refrain from applying statutes or opt for a lenient interpretation of them; stolen property could be devalued by the court so that offenders could be charged with a lesser crime. Also, methods such as the benefit of clergy, judicial reprieve, sanctuary, and abjuration offered offenders a degree of protection from the enactment of harsh sentences.

‘Good aberrance’ or ‘Security for good behaviour’

Eventually, the courts began the practice of “binding over for good behavior,” a form of temporary release during which offenders could take measures to secure pardons or lesser sentences. Controversially, certain courts began suspending sentences.

In the United States, particularly in Massachusetts, different practices were being developed. “Security for good behaviour,” also known as “good aberrance,” was much like modern bail: the accused paid a fee as collateral for good behavior. The filing was also practiced in cases that did not demand an immediate sentence. Using this procedure, indictments were “laid on file” or held in abeyance. To mitigate unreasonable mandatory penalties, judges often granted a motion to quash based upon minor technicalities or errors in the proceedings. Although these American practices were precursors to probation, it is the early use of recognizance and suspended sentences that are directly related to modern probation.

John Augustus- ‘The Father of Probation’

John Augustus, the “Father of Probation,” is recognized as the first true probation officer. Augustus was born in Woburn, Massachusetts in 1785. By 1829, he was a permanent resident of Boston and the owner of a successful boot-making business. It was undoubtedly his membership in the Washington Total Abstinence Society that led him to the Boston courts. Washingtonians abstained from alcohol themselves and were convinced that abusers of alcohol could be rehabilitated through understanding, kindness, and sustained moral suasion, rather than through conviction and jail sentences.

In 1841, John Augustus attended police court to bail out a “common drunkard,” the first probationer. The offender was ordered to appear in court three weeks later for sentencing. He returned to court a sober man, accompanied by Augustus. To the astonishment of all in attendance, his appearance and demeanor had dramatically changed.

Augustus thus began an 18-year career as a volunteer probation officer. Not all of the offenders helped by Augustus were alcohol abusers, nor were all prospective probationers taken under his wing. Close attention was paid to evaluating whether or not a candidate would likely prove to be a successful subject for probation. The offender’s character, age, and the people, places, and things apt to influence him or her were all considered.

Augustus was subsequently credited with founding the investigations process, one of three main concepts of modern probation, the other two being intake and supervision. Augustus, who kept detailed notes on his activities, was also the first to apply the term “probation” to his method of treating offenders.

By 1858, John Augustus had provided bail for 1,946 men and women. Reportedly, only 10 of this number forfeited their bond, a remarkable accomplishment when measured against any standard. His reformer’s zeal and dogged persistence won him the opposition of certain segments of Boston society as well as the devotion and aid of many Boston philanthropists and organizations. The first probation statute, enacted in Massachusetts shortly after this death in 1859, was widely attributed to his efforts.

Following the passage of that first statute, probation spread gradually throughout the United States. The juvenile court movement contributed greatly to the development of probation as a legally-recognized method of dealing with offenders. The first juvenile court was established in Chicago in 1899. Formalization of the intake process is credited to the founders of the Illinois juvenile court. Soon after, 30 states introduced probation as a part of the juvenile court procedure. Today, all states offer both juvenile and adult probation.

Law of Probation In India

Section S.562 of the Code of Criminal Procedure, 1898, was the earliest provision to have dealt with probation. After the 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.

Probation of Offenders Act, 1958.

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.

Salient features of the Act

  • The Probation of Offenders Act of 1958 is aimed at modifying novice prisoners by rehabilitating them in society and avoiding the progression of juvenile offenders into obdurate criminals under environmental control by locking them in prison with hardened criminals.
  • This seeks to release first offenders, following proper admonition or notice with advice who are suspected to have committed an offence punishable under Section 379, Section 380, Section 381, Section 404, or Section 420 of the Indian Penal Code and even in case of any crime punishable with incarceration for not more than two years, or with fine, or both.
  • The Act demands that the Court can order such compensation and the costs of the prosecution for reimbursement by the accused as it finds fair for the damage or injury to the victim.
  • This Act empowers the Court to free those prisoners on probation in good behaviour if the crime supposedly perpetrated is not punishable by death or imprisonment for life. He will, therefore, be kept under control.
  • The Act gives the Judge the right to modify the terms of the bail after a prisoner is placed on probation with good behaviour and to prolong the probation period not to exceed three years from the date of the initial order.
  • The Act offers extra protection for people under the age of twenty-one to prevent sentencing him to prison. However, a person found guilty of a crime punishable by life imprisonment can not have this clause.
  • The Act empowers the Court to grant a warrant of arrest or summons to him and his guarantees compelling them to appear before the Court on the date and time stated in the summons if the defendant placed on bail refuses to comply with the terms of the bond.
  • Under the terms of this Act, the Act empowers the Judge to try and sentence the defendant to jail. The High Court or any other Court may even make such an order when the case is put before it on appeal or in revision.
  • The Act offers a significant function for probation officers to support the Court and oversee the probationers under its supervision and to guide and support them in seeking appropriate work.
  • The Act applies to India as a whole except for Jammu State and Kashmir. This Act shall come into force in a State on such date as the Government of the State may designate, by notice in the Official Gazette. It also gives state governments the right to put the Act into force on multiple dates in different parts of the State.

‘Less Crime, More Peace’

As a part of the Government of Kerala Project; of which, the vision is to mainly focus on “Less Crime, More Peace” and particularly to enhance facilities for rehabilitation in an appropriate manner and also to follow the Reformative pathway, promotion of restorative justice while working with the new aspect or perspective of Correctional centres. The Mission focused to reduce the prison population, reduce recidivism, crime-free society, and victim support services.

Restorative Justice in Probation Service

Restorative Justice is a new movement in the field of Victimology and Criminology. They become central to the criminal justice process; involving all parties- often in face-to-face meetings is a powerful way of addressing not only the material and physical injuries caused by crime, but the social, psychological, and relational injuries as well. It emphasizes repairing the harm caused by criminal behaviour. This can lead to the transformation of people, relationships and communities; It also focused to reduce future harm through Crime prevention. It seeks redress for victims by way of recompense by offenders and reintegration of both within the community. Restorative Justice can be often treated as an extension of the Probation Service. Government and Community play a significant role here; So, the system requires a cooperative effort by communities and the government.

Probation is a less well-known branch of our justice system, compared with, say, police and prisons, but that doesn’t make it any less important. Hundreds of thousands of offenders each year are rehabilitated back into society by probation, which is crucial for the public’s safety.

Schemes & best practices in Kerala :-

  1. Jeevanam self-employment scheme to dependents of Crime victims.
  2. Marriage assistance to daughters of prisoners.
  3. Rehabilitation of cured mentally ill prisoners.
  4. Thanalidam probation home.
  5. Nervazhi – Modernization, and strengthening of the probation system.(For more information, click here)
  6. Educational assistance for children of victims of crime.
  7. Financial assistance to Ex-convicts, probationers, and Ex- pupils.
  8. Educational assistance to children of prisoners (pursuing professional Course).
  9. Self- Employment scheme for dependents of prisoners.
  10. Educational assistance to children of prisoners.
  11. Life Skills Training programs for young offenders or Juveniles through various NGOs working in collaboration with Social Justice Department.
  12. Prevention and Control of Juvenile delinquency.
  13. Probation services & Prison Welfare Services.
  14. Anti- beggary programs.
  15. After-care and rehabilitation of convicts.
  16. Correctional training and research.
  17. Reformation and Revival of Nervazhi and Jeevanam project in accordance with transformation.
  18. System of “Child Probation System” is there in the content, but the implementation is not done yet; So, promotion of the same is also highlighted; and working for the Same.
  19. Providing supervision to ensure that cases are properly reported; in order to reduce chances for further criminal intentions, checking the background of the case and if curable; then to heal it from the first instance.
  20. Providing mechanisms for psycho-social behavioural development of offenders or inmates of jail, observation homes, and Juveniles, etc.
  21. Promotion of pretrial services.
  22. Ensuring proper care & protection through de-addiction centres; counselling and psycho-social intervention and providing support to develop career capabilities by diverting from their behavioural or mental disorders.

Please click here to visit the Official Website of the Social Justice Department, Kerala for more information regarding the schemes and best practices of Probation in Kerala.

Limitations of the schemes

Even though there are several schemes for their protection and upliftment they suffer from the following limitations:-

1. The lack of a vision or a clear mission for the probation system.

2. Weak awareness of the benefits of effective probation by many stakeholders and the public.

3. Lack of an updated probation of offenders act, 1958 and the 1960 state rules are based on outdated concepts of control.

4. Weak inter-departmental synergy between key factors such as Judicial officers, probation officers, prison administrators, prosecutors, advocates. and the police.

5. No high-powered body ( from judiciary) available to monitor, supervise and oversee the probation activities.

Role played by Law and Justice Research Foundation

The Law and Justice Research Foundation (LJRF) is a society registered under the Travancore-Cochin Literary Scientific & Charitable Societies Registration Act and also an entity registered under NITI Aayog, Government of India.

What does LJRF do?

  1. Promotion of Literary Programmes on Legal Education Probation Services
  2. Creation of efficient Probation support team.
  3. Assistance is provided to those eligible for the benefit of probation of offenders act.
  4. Free legal aid Services through DLSA;
  5. Organized & conducted Probation Fortnight Celebrations and Justice V. R. KRISHNA IYER Memorial Lecture; on Probation Day – November 15; in which respected personalities contributed and gave support namely Kumari Chelsasini V. IAS ( Asst. Collector, Pathanamthitta); Shri. S. Sreejith IPS (Inspector General Of police, Crime Branch) ; Shri. T. K. Ramesh Kumar ( District & Sessions Judge, Pathanamthitta); Probation Day message conveyed by Shri. K. G. Simon IPS ( District Police Chief); Justice V. R. Memorial Lecture by Prof. G. Mohan Gopal ( Former Director, National Judicial Academy); Besides several other Mentors and Support Team Members.
  6. Providing a common platform for Right-Based Justice Administration and fair and reasonable implementation of the schemes of criminal justice administration and related awareness sessions.
  7. Activities in association with Government Law Colleges; Law Institutes; Judicial & Quasi-Judicial Authorities; Police Department & Social Justice Department etc.
  8. Strengthening the Capacity of Probation Support Team; and Probation Services and research on its scope and betterment of Psycho-social scenario of young offenders, Juveniles and their family, etc.
  9. Deliverance of a right- based support system and proper assistance.

Articles on Probation published in LJRF Voice.

LJRF Centre for Probation Reforms and Literacy

The objective of the Centre is to create awareness among law and social work students about the Criminal Justice System, the importance of the Probation of Offenders Act, and the benefits of Probation. It is aimed at the formation of a community support group to help offenders for a better reintegration process. LJRF Centre for Probation Reforms works in association with District Probation Offices Law colleges and Social Work Colleges with the support of the Social Justice Department, Govt. of Kerala. 

Objectives of LJRF Centre for Probation Reforms:

• Deliverance of a right-based support system and proper assistance in the field of Probation;

• Promotion of Literary Programmes on Legal Education Probation Services;• Creation of efficient Probation support team; 

• Assistance to those eligible for the benefit of Probation of Offender’s Act;

• Free legal aid Services through DLSA

To join the WhatsApp Group of the LJRF Probation Support Team, please click the link.

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