1. A rational penal policy should aim at protecting the society from crimes and reclaim criminals by removing imperfections in the penal law of the country. Greater emphasis should be on prevention rather than cure. All necessary steps should be taken to ensure that people do not get any opportunity to commit crime rather than trying to reform them after they have indulged into criminality. The law must provide scope for adjustment of punishment according to variations in culpability.
2. Expressing concern for the efficacy of punishment. Bentham, the eminent English law reformer commented that penal policy must be in conformity with the principle of hedonism, that is, the utilitarian doctrine of pain and pleasure. The pleasure or benefit derived from criminal act must not outweigh the pain inflicted by way of punishment; otherwise the punishment is bound to lose its significance. That apart, punishment to be effective, should be proportionate to the gravity of the offence.
3. It is an accepted fact that delay defeats justice and therefore, inordinate delay in sentencing negates its deterrent effect. As such, it is desired that punishment must follow the crime. Elimination of delay in awarding punishment is perhaps the most fundamental requirement of an ideal penal programme. It must be noted that inordinate delay in disposal of cases by courts is causing untold miseries to poor litigants, particularly in India, as a result of which people are losing faith in these institutions of justice.
4. Punishment connotes society’s disapprobation for a particular human conduct and penal sanctions act as a threat to the aggressor to refrain from committing such forbidden acts of violence. Thus the ultimate object of punishment is to protect society against law-breakers. As Beccaria puts it, the purpose of punishment is ‘to make crime an ill-bargain for the offender’.
5. Experience has shown that the principle of equal punishment for similar offences does not prove effective for all types of criminals. The young and the first offenders must be treated differently than the recidivists and habitual offenders. The justification for this differential treatment lies in the fact that the effect of punishment varies from criminal to criminal depending on his age, sex, intellect, mental depravity, responsive attitude and social circumstances. It is for this reason that classification of criminals into different categories is deemed necessary so that they could be reformed through adequate correctional measures.
6. It is significant to note that efficacy of punishment essentially depends on the proper functioning of agencies which administer criminal justice. These agencies must command respect among the public. Everyone including the criminal himself should feel convinced that justice has been done to him.
Disproportionate and unduly harsh punishment shall make the members of community feel that their life is unsafe and insecure in the hands of criminal law administrators and their distrust for law and penal institutions shall jeopardise the cause of criminal justice. Unfortunately, the position in India in this regard is far from satisfactory. Particularly, the functioning of the police and prisons needs improvement so that people regain their lost faith in these august institutions of law and justice.
7. Reformation of criminals should be the Object of punishment while ‘individualisation’ the method of it. Reformation in case of juveniles, first offenders and women offenders and deterrence for hardened criminals and recidivists should be the ultimate object of penal policy.
Emphasising on the reformative aspect of penal justice, the Supreme Court in Mohd. Giasuddin v. State of A.P, held that the State has to rehabilitate the offender rather than avenge him. Mr. Justice Krishna Iyer further observed, “Sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturialisation”.
The punishment to be efficacious must include the combination of deterrence, prevention and reformation so that it prevents a future wrong besides bringing a change in the attitude of the offender through reformative measures during the period of his incarceration.
8. While appreciating the need for reformative approach towards criminals, a word of caution as to the extent to which the principle is to be applied, seems necessary. It is generally observed that in their enthusiasm to reform the criminals, the authorities associated with penal institutions such as prisons and reformatories convert these institutions into an earthly paradise providing all sorts of comforts to inmates.
Consequently, inmates often take the institution as an easy resort to spend their life comfortably without shouldering any responsibilities. This obviously defeats the very object of reformation. It is therefore, desired that life in these institutions must involve certain degree of hardship and rigour so that the inmate is always reminded of his bitter experiences of institutional life after his release.
It will also help in keeping him away from repetition of criminal acts. The penal system should be designed so as to ensure that offenders improve by suffering for their offences. Unfortunately, the trend of judicial sentencing in India is towards excessive reformation with the result punishment is losing all its effect and consequently there is steep rise in crime rate.
9. The authorities concerned with the criminal justice administration should refrain from projecting the image of offenders as “big shot”. It must be remembered that punishment fails when it raises the status of the convicted offender in his group. This is particularly true with criminal gangs.
The rewards so often announced by the Government on the heads of notorious murderers, dacoits and criminals seem to undermine this aspect of penal policy. To cite a concrete illustration, Mr. Kalyan Mukherjee in his Book entitled, ‘The Story of Bandit King’ describes dacoit Malkhan as “a man who wove terror and pity to create a legend”.
Again, the making of a film on the Bandit Queen Phoolan Devi by film director Shekhar Kapoor and its clearance by the Censor Board in September 1995 had projected this women-dacoit as a great Indian personality forgetting all about her past murderous deeds.
The patronage extended to her by certain political parties further indicates how this fundamental principle of penal justice has been flouted with impunity. Far from being punished for her criminal acts, she was elected as the President of the Aklauya Sena, an off-shoot of Bahujan Samaj Party and also a Member of Parliament (M.P.) for the 11th and 12th Loksabha.
To cite yet another illustration, the manner in which the governments of Karnataka and Tamil Nadu were held to ransom by the sandalwood jungle dacoit Veerappan has shaken the conscience of the nation. It was rather disgusting to note that the official emissary R.R. Gopal set out to meet the outlaw four times during August-September, 2000 to secure the release of noted Kannad film Star Dr. Raj Kumar who was held as hostage by Veerappan, but both the State Governments of Tamil Nadu and Karnataka were unable to arrest the bandit.
On the contrary, they surrendered to his threats and released on bail several hard-core TADA detenues who had committed murders. During all this time Veerappan moved in and out of the forest, and R.R. Gopal, the emissary kept returning with interviews and video tapes of his meeting with the bandit. The prevailing situation was indeed a sad reflection on our criminal justice delivery system which drew strictures from the Supreme Court.
10. Most of the modem penologists are opposed to retention of capital punishment on humanitarian ground. They argue that killing of man is inhumane. That apart, if an innocent person is executed due to erroneous justice, that will do irreparable harm. Some argue that putting an offender to death virtually amounts to a cold-blooded murder which serves no useful purpose.
The real object of punishment being reformation and not destruction of the criminal, death sentence hardly serves any purpose. This enlightened view is averse to the retention of capital punishment since it is grossly unjust and against the principles of humanity.
But it must also be pointed out that despite growing disinclination for awarding death penalty, there is a growing reluctance to abolish it. It is so because of a general feeling that threat of infliction of death sentence itself proves as an effective deterrent. Therefore, the ideal policy is to retain capital punishment in the Statute Book to be used in ‘rarest of rare’ cases.
It is true that the test of ‘rarest of rare cases’ has not been acceptable to many because of the fact that what may appear to be a rarest of rare case to one Judge may not necessarily appear to be so to another Judge. The principle has, however, been incorporated in the judicial process by Section 235(2) of the Code of Criminal Procedure, 1973 which provides that when a court awards death sentence by choosing between it and any other alternative punishment permissible under the law, then the reasons for doing so must be recorded by the Court.
11. Punishment should include both compensation as well as imprisonment. As a matter of general policy, it would be ideal to prescribe reparation or payment of compensation for offences relating to property while penal sentence with or without fine may be awarded for crimes against person, particularly for crimes against women and children.
12. The efficacy of punishment, by and large, depends on its impartiality. The penal policy should therefore, be completely free from considerations as to the caste, creed, religion or status of the offender. It would be pertinent to note in this context that the failure of criminal justice during Moghul-rule in India was solely due to the discriminatory nature of Muslim law of crimes and evidence.
Where the offender happened to be a Muslim, he could be awarded capital punishment on the evidence of an infidel, that is, the non-believer in the Muslim faith. Further, the evidence of one Mohammedan witness was equivalent to two Hindus and evidentiary value of two female witnesses was equal to one male witness under the Muslim law of crime. A thief could be convicted only on the evidence of two men. This amply evinces irrationality of the Muslim criminal law and the bias which it carried against Hindus and women.
13. As a sound principle of criminal justice, it is for the legislature to prescribe maximum limit of punishment for every offence in the Penal Code without laying down any minimum limit. This will enable law courts to award punishment according to the requirements of individual offender thus infusing an element of discretion in judicial sentencing which is sine qua non for individualised treatment model.
14. The system of solitary confinement has now become obsolete and outdated. It is discarded because it is torturous and imposes excessive suffering on the offender. Modern penologists treat solitary confinement as a method of putting offenders to death without bloodshed.
Confining convicts in isolated prison-cells without any work makes them idle and aggressive and they return to society as more dangerous and aggressive criminals after their release. The torture of solitude and isolation is so painful that it completely destroys the personality of the offender and he turns hostile and indifferent to the community.
15. Punishment should always serve as a measure of social defence. This in other words, means that elimination of incorrigibles and rehabilitation of corrigibles should be the ultimate object of penal justice. An ideal penal policy should have enough elasticity so as to mold itself with the changing needs of time and place.
The above generalisations with regard to punishment amply suggest that no single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes. Some socialist countries have explicitly mentioned in their criminal codes the aims of sentencing the offender. This is indeed a welcome step which other countries should take note of while formulating their penal policy.
More recently, British and American penologist have shown considerable concern for plight of the ‘victims’ by focusing their attention on the diverse aspects of victimology. This relatively new concept covers within its ambit not only the victims of individual criminality, but also those of the abuse of criminal process and administration of justice.
For this purpose it is necessary to develop human rights consciousness among the law-enforcement personnel particularly, the police and jail authorities. Undoubtedly, the setting up of the National Human Rights Commission in 1993 in India is a welcome step in this direction.