About the Author
Ms. Navia Sebastian is the Convenor for Centre for Probation Reforms.
INTRODUCTION
In Ved Prakash Vs. State of Haryana, AIR 1981 SC 643, Justice V. R. Krishna Iyer commented:
“Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting as a hunch. The social background and the personal factors of the crime-doer are very relevant, although in practice, criminal courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 of the Criminal Procedure Code is not attached, it is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The Bench must fulfil the humanizing mission of sentencing implicit in such enactment as the Probation of Offenders Act.”
Probation is a privilege granted by the court to a person convicted of a criminal offense to remain in the community instead of going to prison. It is an alternative to imprisonment as a form of punishment. Probation is a suspension of the 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 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 in turn would protect the society from further criminal acts from the offender.
The role of probation officers in reforming the offender is paramount to the safety of society. Only an insightful and caring officer can change the behaviour of an offender. The success of probation law greatly depends on 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 prima facie focus on reforming the offender instead of imprisoning them. This approach might not settle well with the victims of crime. The crime committed might have severely impacted their emotional, physical, psychological, and even financial well-being. As part of strengthening the victim support services in the State of Kerala, the Department of Social Justice has started a novel initiative ‘Jeevanam’ which provides financial aid to the dependents as well as victims of crime. Such programs would greatly benefit the victims and their families. It would instill a sense of justice in the society while reforming the offender simultaneously.
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 the NITI Aayog, Government of India. The organization provides a common platform for Right-based justice administration and fair and reasonable implementation of the schemes of criminal justice administration through awareness programs. It has associations with Government Law Colleges, Law Institutes, judicial and quasi-judicial authorities, Social Work Colleges, Police Department & Social Justice Departments, etc. The major projects include strengthening the capacity of the Probation Services Support Team and research.
LJRF has conducted various programs in association with the Department of Social Justice during Probation Fortnight Celebrations and Justice V R Krishna Iyer Memorial Lecture on Probation Day in 2022 and 2021. We were also a part of the Pan India Awareness and Outreach Program from 2nd October 2021 to 14th November 2021 in association with ‘Azadi ka Amrit Mahotsav’ and Legal Services Week under the aegis of NALSA District Legal Services Authority, Thiruvananthapuram, District Probation Office, Thiruvananthapuram.
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 Reform
- Deliverance of a right-based support system and proper assistance in the field of Probation;
- Promotion of Literary Programs on Legal Education Probation Services;
- Creation of an efficient Probation support team;
- Assistance to those eligible for the benefit of the Probation of Offender’s Act;
- Free legal aid services through DLSA
LEGAL AWARENESS AT CORRECTIONAL HOME BY LJRF PROBATION RESOURCE PERSONS
District Probation Office, Alappuzha in association with LJRF Centre for Probation Reforms and Correctional Home Department, Alappuzha conducted a legal awareness program for imparting knowledge regarding the Probation of Offenders Act. Awareness regarding best services under schemes of the Social Justice Department and relating rules and procedures to assist or consult respective authorities to avail these benefits for prisoners was provided from March 14th to 16th, 2022. The program was inaugurated by Smt. Jalajarani M.T, Secretary and Sub Judge, District Legal Services Authority, Alappuzha. The program was presided over by Mr. Shajahan S, District Probation Officer Grade 1, Alappuzha and welcome address was delivered by the Superintendent of the District Jail Sri. R. Sreekumar. Felicitation for the inaugural program was delivered by Ms. Renitta Manuel, Convenor LJRF Centre for Probation Reforms, and a vote of thanks was rendered by Sri. Santhosh, Additional District Probation Officer, Alappuzha. Renitta Manuel, Sreelakshmi S., Arya V. Nair, Aksha Raj, Litty Mon M.S and Annie Rachael Joseph led the lecture sessions on topics: –
- Probation, Nervazhi & Jeevanam projects;
- Probation of Offender’s Act & other services and schemes of social justice department for convicts, ex- convicts and probationers, victims and their families;
- Prison rules and rights of prisoners;
- Plea bargaining and parole, premature release and home leave, etc.;
- Personality defects, personality development techniques, and motivation stories (related to jail);
- Addiction assessment, modern trends in addiction, stages, and impact of addiction.
Sessions focused on making them aware of the rights of inmates as human beings and not as criminals. It also conveyed how they can achieve the benefits of this act of probation and can again, revive with their family and society. The program also comprised some practical sessions which gave peace and taught how to control the present situation and to get out of the dilemma of a name board as a ‘Criminal’. They actively participated and cooperated with each of us four persons who led the sessions and gave happy ending feedback. Giving them proper aid, a hand of love, care, assistance to fulfill basic fundamental human rights can reform them and can create a lot of transformations in societal perspective in the field of Probation Reforms.
Legal Awareness Classes for jail inmates at Special Sub Jail, Thiruvananthapuram and Sub Jail, Neyattinkara was taken by LJRF Resource Persons Adv. Sreelakshmi S and Adv. Aksha Raj B. These sessions were organized under the aegis of the Social Justice Department and District Probation Office, Thiruvananthapuram. Blue Point Org, an NGO in Thiruvananthapuram, and Dale View, a social developmental agency in Thiruvananthapuram associated with LJRF for providing awareness classes. These classes were broadly on:
- Probation of Offenders Act
- Rights of Prisoners
- Parole & Plea Bargaining
- Legal Aid Services
PROJECT WORK BY PROBATION SERVICE SUPPORT TEAM MEMBERS
The following members of the LJRF Probation Service Support Team members have successfully completed their project work ‘Haq Humara Bhai @ 75’ at Central Prison, Poojapura in collaboration with DLSA, Trivandrum.
- MEEENA P
- JYOTHIKA JAYADEVAN
- ASHIFAA SAHEED
- CUCKOO ALBERT
- VIVEK NAMBOOTHIRI C H
- AYSHA RAHMATH
The project work was part of the Pan India Campaign initiated by DLSA, Thiruvananthapuram under the aegis of NALSA, aimed at bridging the gap between the institution and the underprivileged by spreading legal awareness and ensuring the delivery of legal entitlement of eligible beneficiaries.
KERALA STATE PROBATION LITERACY MISSION
The LJRF Centre for Probation Reforms in association with various NGOs operating in the sphere of probation, proposes to flag a new mission names ‘Kerala State Probation Literacy Mission’ to raise awareness mainly among the under- trial prisoners, social workers, and legal fraternity about the core concepts of probation, various provisions of the Probation of Offenders Act of 1958 and the interrelation between probation and the criminal justice system. As an organization, that has been playing an active role in this regard, by conducting awareness classes for under-trial prisoners at several prisons, throughout the state, LJRF Centre for Probation Reforms has a glorious legacy of spreading probation literacy and awareness in society. The Centre for Probation Reforms is now set to upload content videos related to the fundamental ideas of probation on the Law and Justice Research Foundation YouTube Channel with the help of law students, who joined as new active members have been provided with various topics that form the root of probation policy. They are told to create a one-minute video on their respective topic, focusing on basic ideas, to be uploaded to the channel. Through these initiatives, the Centre dreams of providing pro bono legal services to the larger community outside.
STUMBLING BLOCKS
Protocols and policies are futile if they are not implemented properly. Lack of vision is apparent in the whole of the probation system. The weal awareness about the benefits of effective probation among the major stakeholders and the public is a hurdle to reaping its benefits. There is a dire need for updates on probation policies and protocols in our nation. The Probation of Offenders Act 1958 and The Kerala Probation of Offenders Rules 1960 are based on outdated concepts of control. Currently, there exists no mechanism to classify the offenders who benefitted under the probation. There is also a lack of a highly strengthened mechanism available to monitor, supervise, and oversee probation activities. There is a lack of proper implementation of probation policies in our country. Weak inter-departmental synergy between key stakeholders such as judicial officers, probation officers, prison administrators, prosecutors, advocates, and police are fatal to the implementation of policies and protocols. There are ample judicial precedents set by the Supreme Court regarding granting probation according to probation laws and policies. Even these are not duly followed by the judicial officers while sentencing the offender.
MEASURES THAT NEED TO BE TAKEN IN 2024 – 2025
▪ As there is a high rate of illiteracy among the persons released on probation, those who need it should be admitted to the Kerala Literacy Mission for training to induce self-worth. Probationers always get biased in the society, and to reduce that, rehabilitation measures with shelter and employment should be provided by taking ideas from ‘Good Lives Model Components’.
▪ Given the severity of the circumstances, positions for Chief Probation Superintendent and Regional Probational Officers should be filled as soon as possible in accordance with the guidelines. It is to be noted that many probationers face various mental health crises due to a lack of safe space outside the jail and increasing animosity, which may have been faced by them in their day-to-day lives. A clinical psychologist solely focused on probationers will be a great addition.
▪ A probation report on every person who has scope for probation should be made mandatory. Probation officers should be provided with enough time to prepare a detailed and foolproof one. A probation support team consisting of students who are employed via paid internships in every district can be used to help the probation officer with these tasks, and this opportunity will be great for students in their learning as well.
▪ A research center in memory of the great luminary Justice V R Krishna Iyer, which can simultaneously act as an appellate authority, should be established. Under the Centre, a student legal aid clinic can be introduced in jails Monday- Friday.
▪ A public-private partnership is ideal and necessary for a system like probation. There should be institutionalization between research centers, NGOs, medical colleges, LLB and MSW students that can be utilized in the growth of the probation system.
▪ Community service has always been overlooked, and the systematic functioning of it can be helpful for probationers who are trying to lead a normal life and mingle with society. The Act has to be interpreted accordingly to expand its applications and advantages, and interventions by the Kerala Legal Services Authority and DLSA should be made.
▪ The probation system has to work hand in hand in hand and collaborate with many other departments for a coordinating function. The primary link for such collaboration is the police station where an investigation is begun, and it should be extended to the judiciary, legislation, and execution.
▪ The digitization of data is a need of the hour. To design organized information about the offenders, a database has to be created by classifying the offenders based on their gender and marital status. An MoU with a digital university leading to the design of cataloged judgements and records will facilitate research scholars as well as academicians working in association with probation.
▪ The financial crunch of various initiatives like Nervazhi and Jeevanam by the government for the rehabilitation and upliftment of probationers should be met accordingly for the necessary developments.
▪ It is our understanding that changing the general qualification from any degree from a qualified institution as provided in the latest special rules for probation-related posts to specific degrees like LLB, MSW, Criminology, Sociology, Psychology, etc. will be better, as when it comes to a probation officer, it is necessary to have skills and extensive knowledge about interpersonal relationships, psychological wellbeing, and the ability to carry out reforms that enhance the day-to-day life of a probationer.
OTHER SUGGESTIONS
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 systems use modern technology for the smooth functioning of probation policies and protocols. Systems like GPS tracking would enable the probation officer to closely supervise the probationers. It would help in reducing the chances of probationers leaving the state without prior permission.
3. Probation reports 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. Ideally right from the time of arrest an independent authority like a probation officer should evaluate the accused and there should be reports that can be considered for bail. But there should be a quality control mechanism for probation reports also. Because as of now there is no mechanism to counter-check the probation officer’s assessment. But for that, there should be a sufficient number of Probation Officers and a quality check of Probation reports by an independent authority.
5. 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 to submit a probation report. They should be specifically trained to write probation reports.
6. It is detrimental to the welfare of society, the victim, and the offender themselves to release an offender on probation without the supervision of the probation 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 the supervision of a probation officer.
7. A probation 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 probation officers in service. Even though there is a provision in the statute to appoint honorary probation officers, it has not been implemented.
8. The lack of proper training programs for Probation Officers is a serious pitfall in executing probation policy. It is important to appoint probation 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 probation officers. It would be detrimental to the welfare of society if the probation officer does not have the capacity or interest in reforming the offender. There would be a high chance of recidivism if the offenders are not reformed and reintegrated into the society.
9. Granting probation would be a tedious process without proper coordination on the part of various stakeholders such as magistrates, police officers, prison authorities, probation 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 the maintenance of prisons.
10. The offenders often are unaware of 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 probation officers to inform and make them aware of such provisions.
11. 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 of 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.
12. Release of offenders on probation is not fruitful if society doesn’t accept them wholeheartedly. The community has mixed feelings about the release of offenders on probation and parole. They fear that the offender will commit offenses 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 society. Engaging the probationers in community services would hugely reduce the stigma faced by them in the community.
13. NGOs help speed community awareness about the importance of reforming the offender and their reintegration into society. Sadly, there are 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 probation officers. Moreover, to execute de-addiction services in prisons Manpower is required. It necessitates the presence of NGOs in this field.
14. Among the people released on probation, many experience deep mental trauma in terms of various social elements. So, our probation reform mechanisms and NGOs should work in the direction of providing proper counseling to such offenders. If required, they should be rehabilitated in mental asylums under the Government.
15. Proper schemes should be there to give vocational or technical training to the people released on probation. The Government should also provide them with enough financial aid to set up their self-employment ventures. It boosts their level of self-esteem which enables them to live a dignified life in society.
16. The Government should be keener on organizing probation literacy classes in schools, Government offices and in such other places in the same way Constitutional literacy classes are conducted. Hence, the general public shall become more aware of these unnoticed subjects and it is likely to change people’s outlook towards those released on probation.
17. The Government of Kerala has been honoring various NGOs working in other fields under the Social Justice Department as a mark of recognition for their remarkable contributions. The NGOs working in the field of probation also have to be awarded in such a way so that it inspires many NGOs to come up to work for the cause of probation reforms.
18. There exists a giant gap between the date of happening of the crime and the day of the deliverance of its judgment. This often leads to the isolation of an offender when he/she lives in a community. Proper steps have to be adopted in this regard.
19. Making the Offenders themselves to give awareness of other Offenders is an essential practice to be followed in our correctional centers. It may come out as an effective reformative approach.
20. Implementation of plea bargaining has to be commenced as soon as possible in the Courts of Kerala.
DEMANDS BEFORE COMPETENT AUTHORITY
▪ Legal advisors and experts in the field of probation reforms should be appointed in every correctional administration paid by the government and the jurisdiction to attend cases coming within the ambit of the same should be given only to such expert advocates.
▪ Any information regarding the infringement of basic human rights of prison inmates and remand prisoners should be taken into consideration immediately. Besides legal support and proper steps should be taken to remove the same according to the order passed by the competent legal authority to correctional authorities.
▪ Probation officers and other officials must not be overburdened with duties. Vacancies must be satisfied as per the statute and proper division of labour should be ensured for the smooth running of the mechanism.
▪ NGOs, research scholars, legal students, and social workers in the field should be given competency to check the veracity of matters connected with the same as well as follow up regarding the implementation of the order passed by competent legal authority.
▪ Probation legal experts must be appointed in each district in every correctional institution as deemed fit by the competent judicial authority.
▪ Should take sufficient steps to eradicate any chances that provide an opportunity to use drugs or any other illegal and unhealthy practices inside the jail. Proper guidelines must be issued on the same.
▪ There are some ambiguities prevailing regarding the structure of Probation officers being appointed in our state. Some posts such as Clerk and Clerk typists have to be retained and reintroduced. Although there is a mention of regional Probation Officers in the statute it has not been implemented to date. In short, additional posts have to be adequately created retaining the existing ones.
▪ As of now, the Probation of Offenders Act is not a right-based law. The same is the thing with Kerala Probation Rules. But these statutes ought to be shaped as a right-based law within the limited lines. It is the necessity of the hour to propose amendments to the existing statutes. For Example: At present, the age of an offender is determined based on conviction. So, it hinders the application of Section 6 of the Probation of Offenders Act. Thus, Section 6 has to be amended.
CONCLUSION
Promoting probation internationally is a long process of research, training, and networking; including communication and dissemination of information. It is in the latter context that this report finds its raison d’être. The debate on criminal law has always been characterized by a shift from absolute to relative theories of penology. Indeed, punishment should not be an end in itself, and that would be tantamount to advocating revenge. In the past, growing skepticism toward these ideas paved the way for developing alternative ideas to imprisonment. There is no doubt that a proportion of prisoners are beyond restoration, whatever is done to rehabilitate them, would be in vain. However, there is no doubt that the great majority of offenders can change and become responsible and productive citizens. Even today imprisonment is considered the most appropriate sentence for several crimes and offenders. Experiences in countries where probation is an option have indeed demonstrated that it is far less costly and far more humane than imprisonment. Non-custodial sanctions remain an area of interest and hope for a more rehabilitative, less punitive, and less costly way of controlling and preventing crime.
Probation presents such a promising and exciting alternative. A well-thought-out court probation plan can, in many instances, do more to protect the public than committing the offender to prison. It should be clearly understood, on the other hand, that the granting of probation must remain within the sole discretion of the court. However, the working relationship between the courts and the probation officer is also significant. For this purpose, there must be trust and frequent communication between the two sides.
Probation is not the only answer to the crime problem, but it is an integral part of the whole solution. There are several reasons why probation is to be viewed favorably: over-population of prisoners is one of them, sanitary reasons, age, and social conditions, are other reasons; it also dramatically reduces the financial costs to the public treasury for an effective control system. It affirmatively promotes the rehabilitation of the offender and offers them an opportunity to redress the community from the harm done by the offense.
CONVENORS
- Adv. Sreelakshmi S – 7736388305
- Navia Sebastian – 9562804773
