Justice V.R. Krishna Iyer on probation of offenders

Introduction

The word ‘Probation’ is derived from a Latin word ‘Probo¹’ which means “I prove my worth” and ‘Probatio’ which means “Test of approval” to examine whether a person can live in the society without breaking the law. Thus, probation means the act of proving the worth and building a character worthy to be released. It is a procedure by which a convicted person is released or sent to juvenile homes by the Court without imprisonment subject to conditions imposed by the court. This concept has developed gradually and unconsciously. The origin of probation is traced to be the “benefit of clergy”, “judicial reprieve” and “recognizance” during the middle ages for avoiding or postponement of sentences. It has also its antecedents to the 12th century when the king in England began to pardon the criminals & wipe out punishment awarded to them. 

Earlier, the offenders, irrespective of their backgrounds, were given harsh punishments and sent to jails where they undergo inhuman treatment and become hardened criminals. The criminal justice system thus churn out a dangerous criminal harmful for the society out of a person who had potential to repent and become useful for the society. It is seen that the convicts face a tough time tuning into the general public after detainment and it likewise has certain unfortunate consequences for the convict which are grave to shake off in their lives from there on. Because of alteration of the criminal equity framework, the idea of probation is treated as a mingled correctional gadget what began thriving in the late nineteenth century. Probation began from the particular conventions of the normal and common law. Notwithstanding, the recorded improvement of the idea of probation was exceptionally impacted by the presentation of the adolescent equity framework and the idea of ‘positivism’ in criminal law. The English and American courts rehearsed a contingent delivery known as ‘Release on recognizance’ which permitted the convicts to be delivered on specific conditions as recommended by the courts and anticipate their trial. In 1929, the Wickersham Commission report (U.S.A) stated that, “Probation must be considered as the most important step we have taken in the individualization of the treatment of the offender,” and that “no man should be sent to a penal institution until it is definitely determined that he is not a fit person for probation.”  

The concept of probation was brought to modern India by the British through their laws for India. Section 562 of the Code of Criminal Procedure, 1898 expressed that any convict not younger than 21 years punishable with imprisonment of 7 years or less or, any convict younger than 21 years or any lady not punishable with life imprisonment or capital punishment, can be acquitted on probation on good conduct. The Children’s Act of 1908 permitted courts to release children on probation upon good conduct. Resulting to the Indian Jails Committee Report, the Government of India arranged a Draft Probation of Offenders bill in 1931 which could not be handled by the commonplace governments. Because of the suggestions of the prison board, the public authority of India chose to draft complete enactment waiting on the probation of wrongdoers. The Bill was passed by the Lok Sabha however not by the Rajya Sabha. Henceforth, a Joint Committee was framed for this reason. The Joint Committee gave over its report to the Lok Sabha and the bill was presented in the Parliament on 25th February 1958 along these lines, bringing about the authorization of Probation of Offenders Act, 1958. The Probation of Offenders Act, 1958 depends on the individualistic way to deal with the convicts and managing young wrongdoers in a neighbourly way. It is accepted that youthful wrongdoers can be halted from turning out to be ongoing guilty parties if probation is permitted to them. The Act intends to accommodate the arrival of guilty parties waiting on the probation or upon due exhortation and all the issues associated therewith.

It is widely recognised that eminent Jurist V R Krishna Iyer (1915-2014), used his capacity as a Supreme Court Judge in championing the cause of correctional sentencing and humane treatment of the offenders². championed the cause of the downtrodden throughout his life, while pioneering judicial activism in India. He even served jail terms for the cause of his poor and underprivileged clients during his early years of career as a lawyer. As a legislator, he initiated legal-aid to the poor, jail reforms incorporating the rights of prisoners, and set up more courts and rescue homes for women and children. He vehemently advocated for the reformation of criminal justice system as a Jurist. As a member of the Law Commission of India from 1971 to 1973, his comprehensive report led to the legal-aid movement in the country³. Eminent authors in Law opine that Justice Krishna Iyer’s experience—a former politician, legislator, administrator, one-time minister, judge of the High Court of Kerala, member of the Law Commission of India—seems to come vibrantly alive in his Supreme Court judgments⁴. This study project aims to understand the contributions of this noted Jurist in reforming the Criminal Justice system of the country with special reference to Probation of Offenders Act, 1958 and its implementation in the State of Kerala.

Hypothesis 

Justice Krishna Iyer’s contributions as a jurist and legal expert in the development of the probation concept in India was significant and that his landmark judgments changed how the judiciary treated young and first time offenders for the better ever since.

Objectives of the study project 

To verify the hypothesis by:

1. Understanding how the concept of ‘probation’ as a form of correctional sentencing

2. Understanding the significant contributions by Justice Krishna Iyer in the evolution of probation concept in Indian Criminal Justice System

3. Analyzing the impact of Justice Iyer’s contribution in the contemporary environment of the Indian Criminal Justice System

Theory behind probation of offenders

The legal concept of probation is “conditional suspension of sentence.”It is a procedure by which a convicted person is released by the Court without imprisonment subject to conditions imposed by the court. Thus, probation is part of the decision-making process of judges at the time of sentencing so that the ultimate re-establishment of the offender in the community is achieved. This brings the law breaker and anti-social person into willing cooperation with the community of which he is a member. Derived from the latin word probatus, the word ‘probation’ means ‘I prove my worth’ meaning ‘tested’ or ‘proved’⁵. The Black’s Law Dictionary⁶ defines Probation as “Allowing a person convicted of some minor offence to go at large, under a suspension of sentence during good behaviour and generally under the supervision or guardianship of a probation officer.” 

N. K. Chakrabarti⁷ cites the differentiation of crimes as mala in se and mala prohibita by Edwin M. Schur. Mala in se refers to acts that are intrinsically evil – such as murder, rape, theft, dacoity, etc. Mala prohibita refer to acts that are merely defined by a given society as unlawful – customs regulations, restriction on hoarding of essential commodites, restraint of trade etc. are for example. Mala prohibita also cover acts sometimes defined as “victimless crimes” – examples of this category of offences are violation of traffic regulations, drug abuse, adultery, homosexuality, gambling, etc. The law of probation mainly deals with mala prohibita – particularly ‘ victimless crimes’ and ‘accidental behaviours’. In such situations the penological prescription is to give more attention to the criminal than to the crime committed as the offenders are deemed as victims of socio-economic conditions. A therapeutic approach to punishment; therefore, developed for dealing with certain type of offenders, called as diseased persons who need humane treatment to help them return to normal life.

Howard Abadinsky describes the three theories of probation:⁸

i. Grade Theory – probation is a conditional privilege, an act of mercy by the judge. If any condition of this privilege is violated, then it can be revoked.

ii. Contract Theory – the probationer signs a stipulation agreeing to certain terms in return for conditional freedom. As in any contractual situation, a breach of contract can result in penalties, in this case revocation of probation.

iii. Custody theory – the probationer is in the legal custody of the court and is thus a quasi- prisoner with his or her constitutional rights being limited accordingly.

The reformative theory suggests that punishment is only justifiable if it looks to the future and not to the past. It should not be regarded “as setting an old account but rather as opening a new one”. Hardened and professional offenders hardly respond favorably to reformative ideology because they are incorrigible offenders with whom crime is not so much a bad habit but it is an ineradicable instinct in them. For such offenders, deterrent punishment is perhaps the only alternative.

Even if criminals are treated as patients some of the hardened criminals are incurably bad. If prisons are turned into a comfortable place, the prison might turn into dwelling place, at least for poor people. Even with the application of the theory crime rate is ever increasing. Salmond says that “the application of the purely reformative theory leads to astonishing and inadmissible results”.

Reformatory theory of punishment has very limited application. Psychologists say that behaviour which comes under the domain of habit cannot be changed so easily. Moreover, this theory cannot be applied in every society. It is contrary to principles of Natural Justice, the aggrieved may not be rewarded but the guilty person must not go unpunished. It is wrong to prescribe that punishment has any one single objective.

Origin of Probation

The origin of probation can be traced to 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 benefit of clergy, judicial reprieve, sanctuary, and abjuration offered

offenders a degree of protection from the enactment of harsh sentences. 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.

Mandatory Conditions of Probation

• Attend court as and when directed to so

• Keep the peace and be of good, behavior

• Any other condition which the judge believes to be reasonable and will assist the offender in

changing their behavior, examples:

• Fulfill all social and legal obligations

• Abstain from alcohol or drugs

• Find employment within a specified period of time. 

• Avoid contact or involvement with certain persons (usually named)

Merits and Demerits of Probation:

Merits

1. In probation system the matter of shame or stigma if not completely removed are reduced to a certain extent.

2. As the probationer is, left in the society, his family could put some reasonable restriction.

3. The community will have the benefit of manpower. 

4. Probation is less costly and as such the Community is financially profited.

5. Probation in fact is an opportunity to an offender to struggle to recapture self- respect.

Demerits

1. The system devotes too much attention on the offender and in the zeal of his reformation the interests of the person injured by the offender’s delinquent act are completely lost sight of this obviously is against the accepted norms of justice.

2. Admitting all young offenders and first offenders to probation regardless of their antecedents, personality and mental attitudes might lead to recidivism because many of them might not favorably respond to this reformatory mode of treatment.

3. In many cases it is difficult to ascertain whether the delinquent is the first offender or a habitual one. Therefore, there is there are more chances that an offender who is a recidivist might be admitted to probation.

4. Lack of interest for social work among the probation officers presents real difficulty in selecting right persons for this mode of treatment. Ghute attributes lack of qualification, lack of proper supervision and excessive burden of casework as the three causes of inefficiency among the probation staff. Particularly in India, probation is reduced to mere farce. This laborious correctional task is handled by persons who are mostly inexperienced and inadequately trained for this job.

Types of Probation

1. Supervised Probation

• The probationer must see a probation officer.

• The probationer must also fulfill certain other conditions as set by the judge or instructions issued by the probation officer usually include the conditions specified by the probation officer and the court.

2. Unsupervised Probation

• The probationer is not required to see a probation officer.

• The probationer is believed to have learned their lesson and is capable of correcting their own behavior.

Revocation of Probation

Probation along with other alternative sanctions is increasingly being used, to alleviate the strain on correctional institutions. As more correctional facilities are filled to capacity, more and more offenders are receiving sentences of probation, and hence serving their sentence in the community. However, the effect of probation violations negates the idea that beds are freed up by the use of alternative sanctions. Several issues have been raised about probation per se, and specifically about increasing probation populations. Foremost is revocation of probation. This is important because it has implications both to public safety and to the effectiveness of probation itself as an alternative sanction. Probation revocation occurs due to violation of probation order, or a new conviction. A judge who sentences an offender to probation is taking the chance he will stay out of trouble. If he violates the rules of probation or is rearrested for new crimes, sanctions are imposed, and the termination of probation and reinstatement of a jail sentence takes place. While a probation officer has some discretion and each county and state is unique, there are certain violations that typically trigger a violation of probation hearing and revocation. 

Several factors associated with probation revocation, most notably, past problem behavior. In particular, offenders with previous military disciplinary problems or a juvenile or adult record were more likely to have their probation revoked. Also noted was the more likely revocation of the socially disadvantaged, specifically probationers with lower education and lower socio-economic status. Instability in marriage and jobs was also reported as associated with probation revocation, and property offenders were noted to be more likely to have their probation revoked. Furthermore, it is reported that the imposition of special conditions and longer sentences increase the likelihood of probation revocation. Repeatedly reported are some socio-demographic characteristics and crime attributes of probationers that made them more likely to become recidivist. Among these, though reported at varying degrees of importance are characteristics such as age, sex, ethnicity, prior records, and type of offence, educational level, and drug and alcohol use. The some other factors of revocation of probation is

➢ New Criminal Charges

A new arrest during the period of probation that results in a criminal conviction will almost always result in a judge revoking the underlying probation.

➢ Positive Urinalysis for Drugs or Breath Test for Alcohol

Substance abuse testing is a required condition of probation when the probationer has a history of alcohol or drug abuse or if there is reasonable suspicion of illegal use.

➢ Missed Appointments

Probationers, who disappear, miss scheduled appointments, lie about their work or school schedules or who travel out of state without permission, will not last long on probation in most jurisdictions.

➢ Possession of Weapons

Probationers are not permitted to possess weapons on probation. Having or carrying a weapon while on probation is a serious offense, and a probation officer will typically recommend that the probation be revoked. In some cases, possession of a firearm by a felon or other convicted person might be a new and separate crime, depending upon the law in the jurisdiction. In either case, it is a violation of conditions serious enough to result in probation revocation.

➢ Violation of Special Conditions

Certain special conditions might apply to a probationer. These might include having no contact with the victim of the offense, having no contact with children or attending an anger management course. These special conditions apply to specific individuals when ordered by the sentencing judge. Judges do not typically have patience for a probationer who disobeys these court-imposed special conditions. 

Statutory Provisions relating to Probation

The statutory provisions in India regarding probation is given in the Code of Criminal Procedure Code and the Probation of Offenders Act. 

Code of Criminal Procedure 

Section 562 of the Code of Criminal Procedure,1898 was replaced by Section 360 of the Code of Criminal Procedure, 1973, which dealt with probation of offenders. This Section says that:

➢ If any person who is not below twenty-one years and is convicted of a crime for which the

punishment is imprisonment for seven years or is convicted for an offence punishable with fine,

➢ Or any person who is below twenty-one years or if any women convicted of an offence not punishable with imprisonment of life or death and no previous conviction is proved against the offender,

➢ And appears before the court, regardless of the circumstances in which he has committed the offence, the court might release the offender on the promise of good conduct.

The Court might release him on entering the bond for good conduct and peace instead of punishing the offender with imprisonment. 

Probation of Offenders Act, 1958

The object of Probation of Offenders Act, 1958 is to treat the offender not so much as a criminal but as a sick man who is capable of being reclaimed and restored to society as a useful and reasonable citizen⁹. The assumption is that most men commit crimes because of their environment and special circumstances and that in suitable cases it is possible to change the conditions which led to a man’s fall from proper standards and reclaim him as a sound normal citizen. The sole intention of the legislature in passing probation law is to give a particular type of offenders a chance of reformation which they would not get if sent to prisons. 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 criminality¹⁰. The Act means to give a reformative arrangement of change of wrongdoers and convert them into helpful and decent residents of the country. 

The Probation of Offenders Act, 1958 is enacted with an aim to yield a mechanism where the amateur and first-time offenders are able to reform and are kept away from the negative influence of the jails and hardened criminals. The salient features of the act are as follows¹¹

➢ Provides for the release of first-time offenders after due admonition for convicts punishable under Section 379, Section 380, Section 381, Section 404 and Section 420 of Code of Criminal Procedure and also to those who are punishable for imprisonment of 2 years or with fine or both.

➢ Authorizes the release of offenders on probation based on good conduct, provided the offence alleged to have been committed by the offenders is not punishable with life imprisonment or the death penalty.

➢ Empowers the Court to give orders for payment of a reasonable sum to the victim for the injury caused to him and the cost of the proceedings by the offender.

➢ Protects those offenders who are below the age of 21 years from the sentence of imprisonment. However, this rule does not apply to those who are offenders punishable with life imprisonment.

➢ Empowers the Courts to set the conditions in the bond for a person released on probation and to extend the period of probation not exceeding 3 years from the original order.

➢ Entrusts the probation officers to supervise the probationers assigned to him and help them in reformation and employment. Section 3 to Section 12 of the Probation of the Offender Act, 1958 deals with the procedures of the court to deal with the release of the offenders. The important aspects of the provisions are discussed in five ways:

Admonition

Section 3 of the Probation of the Offenders Act,1958 deals with the power of court to release the offender after admonition. An Admonition, in literal terms, means a firm warning or reprimand. Section 3 says how the offender is benefited on the basis of admonition after satisfying the following conditions:

➢ When any person is found guilty of committing an offence under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code,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

➢ An offender should not previously be convicted for the same offence.

➢ The Court considers the nature of the offence and the character of the offender.

➢ The Court may release the offender on probation of good conduct applying Section 4 of the Act, instead of sentencing him and,

➢ The Court may release the offender after due admonition, instead of sentencing him.

Probation on good conduct Section 4 of the Probation of the Offenders Act,1958 talks about the release of the offender on the basis of good conduct. It is a very important Section of the Act. The important points that must be remembered for the application of this Section are:

➢ Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or imprisonment for life.

➢ The Court has to consider the circumstances of the case including the nature of the offence and the character of the offender.

➢ The Court may pass a supervision order to release the offender on probation of good conduct. The supervisory period is not to be shorter than one year. The probation officer must supervise the individual for such a span in such a situation. In the supervisory order, the name of the probation officer should be listed.

➢ The Court can direct the offender to execute a bond, with or without sureties, to appear and receive sentence when called upon during such period which should not exceed a period of three years. The court may release the offender on good behavior.

➢ The Court may put appropriate conditions in the supervision order and the court making a

supervision order explain to the offender the terms and conditions of the order. Such supervision order should forthwith be furnished to the offender.

➢ Probation officer’s report is not compulsory to enforce this rule, but if the information is required on record, the Court shall take into account the probation officer’s information before granting a probation order for good behavior. 

Offenders under 21 years of age 

Section 6 of the Probation of the Offenders Act,1958 talks about the restriction on the imprisonment of offenders under twenty-one years of age. This provision says that offenders who are under 21 years of age are not sent to prison where the offence is not so serious as to warrant imprisonment for life or death. Important points to be remembered before the application of Section 6:

➢ In cases where the accused is below 21 years of age, the Court shall call for the report of the Probation Officer. If the court’s opinion is not desirable with offender either on the ground of admonition (Section 3) or on the ground of release on probation of good conduct (Section 4), the Court can pass sentence of imprisonment on the offender who is under 21 of years ago but the Court cannot sentence him without recording reasons for doing so. The Court has an obligation to see whether Section 3 or 4 of the Act applies or not. For this purpose, the Court must call for the report of the Probation Officer. Therefore, the report of the Probation Officer is mandatory when the offender is under 21 years of age.

➢ The court considers the nature of the offence and the character, physical and mental condition of the offender before making any decision.

➢ It is difficult for the court to come to a conclusion whether Section 3 or Section 4 applies or not unless the Court considers the report of the Probation Officer, therefore, the report of the Probation Officer is mandatory under Section 6 of the Act.

➢ On receiving a report, the Court peruses it and decides whether the offender can be released on admonition or probation of good conduct or not. 

➢ After receiving the report, if the court orders that the offender shall not be released, applying Section 3 or Section 4 of the Act, the Court can pass sentence to the offender recording the reasons for doing so.

Report of probation officers

Section 7 of the Probation of the Offenders Act 1958 deals with the clause that the report of the probating officer is kept confidential. No Probation Officer’s report is necessary to apply Section 4 of the Probation of Offenders Act but such report is must under Section 6 of Probation of Offenders Act if the offender is under 21 years of age. However, if such a report is available on the record, under Section 4 of the Act, the Court shall not ignore it and that the Court shall take the report into consideration.

Pit-falls in Probation System in India

It is difficult in many situations to determine whether the criminal is a first offender or a recidivist. There is, therefore, a possibility that an offender who is otherwise recurrent may be admitted to probation and may not react favorably to this technique of correction. Section 4 of the Probation of Offenders Act, a main provision of the Act, does not make it compulsory to supervise a person released on probation unless the court orders release a person on probation after entering into a bond with or without immunity. This is not in line with the probation philosophy which considers supervision important to the offender’s interests Section 6 of the Act allows the court to take into account the report of the probation officer when it is appropriate to take a decision to grant or deny probation to an offender under the age of 21, but many times court decisions are made without any report. Again, this goes against the spirit of morality that is enshrined in the Probation Act. This is basically because of the poor judiciary system. The lack of proper training programmes for Probation Officers is another lacuna. 

Probably because of such pitfalls, Justice Krishna Iyer wrote in 1976 about the traditional theory of harsh deterrence writ large in the Indian Penal Code and the Criminal Procedure Code drafted by committees led by Lord Macauley:

“The ghosts of Macauley and men of his ilk haunt our criminal courts still, so much so, that probation fares ill in the law courts. Twenty-five years of freedom have not freed our judiciary from the obsolescent British Indian ideology bearing on suppression of crime.”¹²

In the next section, some landmark judgments related to probation of offenders by visionary jurists like Justice Iyer are discussed. 

Indian Judiciary and Probation

Krishna Iyer, J. was a jurist who advocated strongly for orienting towards reformative treatment of prisoners. In all his judgments he tried to incorporate reformative values into the prison administration. Justice Iyer was a pioneer Jurist in emphasizing correctional treatment of young offenders, invoking the provisions of the Probation of Offenders Act, 1958. He believed that ‘legislative innovations’ like Probation of Offenders Act have hardly made a nation-wide impact because the Bench and the Bar have not shown enlightened interest in these humane programmes and sentencing practices¹³. Justice Iyer advocated for the development of a new sentencing culture, harmonizing the needs of crime prevention and humanization in accordance with the ‘constitutional mercy.’ He acted not simply to improve the Court’s image, but, rather, to give strength to the rule of law.¹⁴ The concept of crime was also redefined by the judges of his time. Here are some landmark judgments that changes the course of how the Indian Judiciary treated the offenders:

Mohammed Giasuddin v. State of Andhra Pradesh¹⁵

It was observed in this judgment that Reformation should be the objective of punishment:

“Crime is a pathological aberration that the criminal can ordinarily be redeemed that the state has to rehabilitates rather than avenge. The sub-culture that leads to anti- social behavior has to be countered not by undue cruelty but by re-colorization. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times.”

The above judgment conveys the right influence of international human rights doctrine over the Indian judiciary. The Court in the Giasuddin emphasized on the Gandhian approach of treating offenders as patients and therapeutic role of punishment. Krishna Iyer, J. delivering the judgment also pointed out that the judge must use a wide range of powers in reformatting the criminal before him. Thus the concept of reformation was planted even out of the four walls of prison by this judgment.

Ramji Missar v. State of Bihar¹⁶

Spelling out the object of the release of offenders on probation, the Supreme Court observed in this case:

“The purpose of release of youthful offenders on probation is to stop their conversion into stubborn criminals as a result of their association with a hardened criminal of mature age. Modern Criminal Jurisprudence recognizes that no one is born criminal & that a good many crimes are the result of the socio-economic milieu. Although not much can be done for hardened criminals, yet a considerable emphasis has been laid on bringing about reform of juveniles who are not guilty of very serious offenses by preventing their association with mature criminals.”

Charles Sobraj v The Superintendent, Central Jail, Tihar, New Delhi¹⁷

In this Supreme Court case, the Honourable Justice Krishna Iyer held that imprisonment does not spell farewell to fundamental rights, However, by a realistic re-appraisal, Courts will refuse to recognize the full armour of Part III(i.e. Fundamental Rights) enjoyed by a free citizen. He also emphasized the fact that imprisonment of a prisoner is not merely deterrence but also rehabilitation. 

Sunil Batra v. Delhi Administration¹⁸

How criminal justice system ought function, according to Justice Iyer, is illustrated in the landmark judgment Sunil Batra v. Delhi Administration¹⁹:

“Prison laws, now in bad shape, need rehabilitation; prison staff, soaked in the Raj past, need reorientation; prison houses and practices, a hangover of the die-hard retributive ethos, need reconstruction; prisoners, these noiseless, voiceless human heaps cry for therapeutic technology; and prison justice, after long jurisprudential gestation, must now be re-born through judicial midwifery, if need be. No longer can the Constitution be curtained off from the incarcerated community since pervasive social justice is a fighting faith with Indian humanity.”

The petitioner, a convict under a death sentence sent a letter to one of the Judges of this Court complaining about the torture which is being faced by prisoners by the Police authorities and other inmates inside the jail. The letter stated the concerns for the prisoners well -being and the exercise of brutality on them. At a later stage, the letter was being converted into a “Writ of Habeas Corpus” proceeding in front of this Court under Article 32 of the Constitution. Following were the Issues considered in this judgment:

➢ Whether the court has jurisdiction to consider the prisoners grievance? 

➢ What are the wide shapes of the Fundamental Rights, particularly Article 14, 19, 21 which have a place with a prisoner condemned by Court? 

➢ What legal cures can be allowed to forestall and punish their infringement and to give admittance to individual equity? 

➢ What practicable remedies bearing on jail practices can be drawn up by the Court reliably with the current arrangements of the Prisons Act, and Rules adapted to shape to adjust to part III? 

➢ What jail reform points of view and methodologies ought to be received to reinforce, over the long haul, the Constitutional commands and common freedoms objectives? 

Under Article 32 and Article 226, the Court has the ability to intercede and ease the prisoners whose fundamental rights are grabbed away. Consequently, the Court confirms that where the privileges of the prisoner either under the Constitution or under other law are abused, the writ force of the Court should rush to his salvage. The Apex Court held that Prem Chand, the detainee has been tormented wrongfully and the Superintendent can’t exonerate himself from duty despite the fact that he may not be straightforwardly a gathering. 

It was held that legal advisors selected by the District Magistrate, Session Judge, High Court and Supreme Court will be given all offices for interviews visit and private correspondence with detainees subject to train and security contemplations. It is additionally important that the Jail Authority ought to advise the Session Judge of any corrective activity taken against a prisoner within 2 days of such activity. An assertion by the Session Judge with respect to his visits, enquiries made and activity taken subsequently will be submitted occasionally to the High Court to familiarize it with the condition winning in the detainment facilities inside the locale of the High Court. The State will find a way to plan in Hindi, a detainee’s handbook and circle duplicates to bring legitimate mindfulness among the prisoners. 

The Honourable Judges likewise indicated their anxiety for detainee change and execution of important arrangements to empower the detainees with the offices where they can raise their protests and complaints in regards to the encroachment of their major rights. In this way, the appeal was permitted guiding writ to issue including the consistence of all orders as given by the Apex Court. 

This case put forward numerous concepts²⁰ such as:-

➢ Interpretation of Article 14, 19 and 21 to be read in a combined manner rather than

independently.

➢ Jurisdiction of the Court under Article 32 and Article 226 concerning prisoner’s right.

➢ Recommendations of various guidelines to be followed to keep a check on the well-being of the prisoners.

➢ Implied Duty of Superintendent towards the offence committed inside the premises of jail even if he is not directly or indirectly involved.

➢ A necessity for bringing the protection law for the prisoners such as adequate medical care, right to complain about the prison condition and access to the Court, right to be treated with dignity and right to an adequate standard of living.

In the judgment, Justice Krishna Iyer wrote:

“No prisoner can be personally subjected to deprivations not necessitated by… incarceration …  All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.”

Lingala Vijay Kumar v. Public Prosecutor, Andhra Pradesh,²¹

Justice Iyer stated the need to keep young accused separate from sadistic adults in this case.

Report of the Expert Committee on Legal Aid

In the Report of the Expert Committee on Legal Aid, (1973), drafted by Justice Iyer, he proposed that the criminal justice system make better use of ‘legislative landmarks’ like Probation of Offenders Act:

“The Probation of Offenders Act, 1958 places restrictions on the imprisonment of young offenders below twenty-one years of age. However, the judiciaryis not often aware of the beneficial provisions and operate with a punitive approach against the spirit of the law. The formalities before sending a juvenile or adolescent to jail, of a pre-sentence investigation report from the probation officer and recording the reasons in writing why a young person is sent to imprisonment are sometimes disregarded by the judiciary. The baneful effects of such imprisonment on children can be imagined. Section 11 of the Probation of Offenders Act, 1958 gives a right to such young offenders, or to probation officers to challenge the order. Free legal aid for such a purpose will be greatly helpful in achieving the objectives of the probation law.”²²

The Constitution of India authorizes reasonable discrimination to children having regard to the need for moral and material nurturing at that tender age. Justice Iyer found it crucial to have a concerted effect of all functionaries of the criminal justice system to achieve the object of this constitutional mandate.

However, there are also some criticisms on Justice Iyer’s enthusiasm to show leniency on young offenders. In V.C. Rangadurai v. D. Gopalan²³, involving a case of grave professional misconduct by a lawyer who would have been disbarred by the State Bar Council (instead of suspension from practice for six years) but for his young age—and whose suspension was further reduced by the Bar Council of India to one year, Justice Krishna Iyer reinstated his right to practise on an “understanding to serve the poor” by participating in a legal aid scheme operating in Tamil Nadu. Authors like K. M. Sharma, however, criticized this judgment as “an unrealistically lenient view” that instead of deterring professional misconduct and improving the public trust in the legal profession, such a direction was statutorily suspect.

Another “inconsistent rationalisation” by Justice Iyer as K. M. Sharma describes²⁴ it is in one rape case, Phul Singh v. State of Haryana²⁵, in which the sentence of imprisonment of five years had been reduced to two years b because of contrition and forgiveness on the part of the accused and the prosecutrix’s family. The learned Judge blamed ‘the present-day decadent social environment,” not the “libidinous brahmachari” but he was hopeful that the “aphrodisiac overflow” and “erotic aberration” of this “philanderer of 22 … overpowered by sex stress in excess” will wither away as a result of meditation therapy rather than punitive sanctions. 

Implementation of Probation system now: Example of Kerala 

The Probation system in Kerala attempts to achieve the goal of offender free Kerala. Such attempts are carried out by the Social Justice Department. Adoption of ‘Smart probation’ is one of the initiatives by the Department. Aims of Smart Probation are:

➢ Modernization of probation and introduction of new schemes for First Offenders (except heinous crimes)

➢ Developing a system for victim support and rehabilitation and state policy

➢ Awareness about plea bargaining

➢ Act on community service of offenders

Types of Probation in Kerala

➢ Judicial Probation

As per Prevention of Offenders Act 1958, under probation wing of Social Justice Department.

➢ Executive Probation

As per Kerala Jail Rules 2014 and Kerala Borstal Schools Act 1961 under probation wing of 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. 

➢ Schemes Under Probation

Various schemes have been introduced by the state government under probation. One such

programme is the Nervazhi Programme.

➢ Nervazhi Programme 

The Nervazhi Project is implemented in the State to rejuvenate and modernize the probation

system in Kerala. It aims for regular and better identification of offenders eligible for probation, to undertake comprehensive investigative reports to ascertain whether they are amenable to correction, to provide necessary psychological treatment when necessary and to ensure effective supervision to enhance the likelihood that the probationers will be integrated back into society.

Beneficiary Target Groups:

1. Offenders between age group 18 and 21 who have not committed serious offences.

2. Under trial prisoners

3. Remand prisoners

4. Young offenders released on bail

5. First accused between 18 to 25 years

6. Ex-Prisoners and family

7. Borstal school residents and family members

8. Children of prisoners

The way in which the offenders and convicts are treated in India changed over the years, and it continues to evolve. Projects like ‘Nervazhi’ by the Kerla Government is an example of the attitudinal change towards offenders. This lights upon the importance of the interventions by visionaries like Justice V. R. Krishna Iyer that surely changed the way the criminal justice system treated young and first time offenders.

Conclusion

Despite the provisions laid down in the Probation of Offenders Act, 1958, the judiciary of the independent India still refused to inculcate a reformatory orientation in the treatment of offenders and convicts. Judgment in Sunil Batra²⁶, delivered by Justice Krishna Iyer stood for securing the fundamental rights of prisoners. It gave a wake- up call to the judiciary for a need of implementing the reforms which do justification with the fundamental rights of prisoners. The Indian system of prison administration was restructured and modified by the judiciary. Many of the rights assured to prisoners were incorporated into the Indian legal system by the judiciary. Justice Iyer’s judgments in the Indian Supreme Court largely belonged to class of jurisprudence that defined the limits of executive discretion in favor of the fundamental rights of the citizens. As an individual judge, Justice Krishna Iyer’s personal commitment of social justice and liberal jurisprudence was aligned with the Indian Supreme Court’s commitment for the same objectives. He was able to transfer these objectives into policy trails through his judgments. He was also able to exhort the system to go beyond what was duty to a broader area of social commitment. His judgments brought the human interests and socio-economic issues underlying the crime and punishment to the forefront. It also helped to build positive views towards prisoners and expanded the role of enforcing criminal justice beyond standard sentencing.

¹www.ipleaders.in,Shruthui Kulsheshthra,(22:00) 27/01/2021

²Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155, 30-08-1978; Lingala Vijay Kumar v. Public Prosecutor, Andhra Pradesh, (1978) 4 SCC 196, 203-04; and V.C. Rangadurai v. D. Gopalan, (1979) 1 SCC 308 are some examples

³Processual Justice to People: Report of the Expert Committee in Legal Aid (1973). Ministry of Law, Justice & Company Affairs, Department of Legal Affairs, Governemnt of India

⁴Sarma, K. M (201) The Judicial Universe of Justice V. R. Krishana Iyer, Supreme Court Cases (1981) 4 SCC J-38,
Eastern Book Company, reproduced in https://www.scconline.com/blog/post/2020/11/15/the-judicial-universe-of-
mr-justice-krishna-iyer/

⁵N. K. Chakrabarti, Probation System in the Administration of Criminal Justice 29-31 (1995)

⁶Black’s Law Dictionary 435 (9th ed. 2009).Mar 23, 2017

⁷http://14.139.60.114:8080/jspui/bitstream/123456789/17663/1/042_Legal%20Decision%20Affecting%20Probation
%20(524-534).pdf, accessed on 30/01/2021

⁸Probation and Parole : Theory and Practice 130-1 (1977)

⁹

Joint Parliamentary Committee Report, Minutes of Dissent : submitted by R.P. Sinha, J.A. Washi. Y.N. Jadhav, A.R.
Khan, S. Nayar, Y.S. Parmer dt. 19-2-1958. Ibid. Gazette oflndia, Extraor-dinary, 25-2-1952

¹⁰http://www.legalserviceindia.com/legal/article-453-the-probation-of-offenders-act-an-analysis.html accessed on
30/01/2021

¹¹www.ipleaders.in,Shruthui Kulsheshthra,(22:10) 27/01/2021

¹²V.R. Krishna Iyer, Social Mission of Law 96-7 (1976)

¹³Supra 2

¹⁴Supra 3

¹⁵A.I.R. 1977 S.C.1926

¹⁶AIR 1963 SC 1088

¹⁷1978 AIR 1514 1979 SCR (1) 512 1978 SCC (4) 104

¹⁸Sunil Batra v. Delhi Administration 1978 AIR 1675, 1979 SCR (1) 392

¹⁹(1978) 4 SCC 494 : 1979 SCC (Cri) 155, 30-08-1978

²⁰indianlawportal.co.in,Garima Sisodia, (22:340) 27/01/2021

²¹(1978) 4 SCC 196, 203-04

²²Supra 2

²³(1979) 1 SCC 308

²⁴Supra 3

²⁵(1979) 4 SCC 413

²⁶(1978) 4 SCC 494 : 1979 SCC (Cri) 155, 30-08-1978

__________________

Authors:
Bebancy N. Rasal, Rosemary Varkey M, and Vishakh Vijay Nambiar
Internees, Law and Justice Research Foundation
Supervisor:
Ved Prakash