PROBATION AS A FORM OF PUNISHMENT
Maharashtra National Law University, Mumbai
Civilization and diversity have always moved hand in hand. There are various facets to everything that can be perceived by the human mind. There is right and wrong, good and evil. Although such binary opposites carry different meanings when held in different perspectives, they are not immune to fresh interpretations themselves. As society has moved forward, it has carried, conserved, modified and at times preserved these outlooks of good and bad. Today we generally classify certain sets of wrongs as civil and criminal, with criminal ones being more against individuals and hence perceived to be comparatively more serious. Owing to the same, criminal offences have a fairly stricter fashion of assessment as well as punishment.
Criminal law has gone through many phases of exploring different mechanisms for providing due punishment to offenders, which are now known as ‘Theories of Punishment’. Via trial and error, we have evolved from a primal sense of justice to a more pragmatic and progressive one. As such, it has helped us move from a mere retributive form of punishment to a reformative one.
But, mere imprisonment of offenders, although simplistic, failed to effectively deter commission of offences. The main problem has been related to prison overcrowding. Prisons all over the world have continually faced problems with accommodation and care of an ever-increasing number of inmates. This has led to even more neglect of the offenders in need of supervision and reformation. Such prison overcrowding adversely affects the justice system and has repercussions on the safety and health of society as a whole.
Hence, as we increased our understanding of criminality and it various avenues, we came to the realization that to preserve the humanity in offenders is worth much more in the longer run than simply deterring future offences by heavily penalizing present ones. Thus, picking up the idea of reformative punishment, criminal law evolved the idea of probation of offenders.
Probation, in its simplest terms, refers to the release of an offender from detention, subject to a period of good behavior under supervision. It is one of the most effective non-custodial measures which are designed to work for early reformation and re-socialization of criminals while they remain in the communities as ordinary citizens by subjecting them to certain conditions with which they must comply. In essence, probation by itself can serve as a form of punishment that allows offenders to be placed back into society on specific conditions.
Section 360 (earlier S.562) of the Code of Criminal Procedure, 1898, is one of the foremost provisions that talks about the concept of probation. 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 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, 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 behavior.’
Further, the legislature also came up with the Probation of Offenders Act, 1958 to deal with matters of excessive incarceration. Under the provisions of Probation of offenders Act, 1958, supervisory measures can be applied to offenders who have committed minor crimes for the first time. They can be released on probation with the supervision of probation officers. Offenders may also be released on probation without the supervision of probation officers provided that they promise to conduct themselves in an appropriate manner. There is also a restriction on the imprisonment of offenders less than 21 years of age if they haven’t committed any offence that is punishable by life imprisonment or death. Such an offender must be released unless there are reasons to be recorded having regard to the nature of offence and character of offender.
Probation becomes a very necessary form of punishment because it helps the offender to let go of their criminal life and restart the process as a common citizen. Such treatment of offenders allows them to try and ease back into a regular and civilized form of life. In our society, undergoing a trail and being imprisoned carries with it an immense amount of pressure and stigma. It is very difficult for a person having undergone a prison sentence to be easily accepted back into society. Such a situation makes their rehabilitation next to impossible. Hence, a fair reception of such offenders into society gives them a sense of hope towards reforming themselves while preventing them from having a retributive attitude towards it. The fear of punishment also helps deter future offences as a second chance at a free life is something that no one will easily give up.
Hence, although there are several strict means of punishment that are indeed vital to the effective maintenance of law and order in our world, it is also equally important to understand that a reformative attitude proves much more beneficial as it produces many more functioning citizens and helps society move forward with a sense of continued mutual understanding.