CORRECTIONAL METHODS FOR

REHABILITATION OF OFFENDERS IN INDIA

Dissertation submitted in part fulfillment for the requirement of

the Degree of

LL.M.

Submitted by Supervised by

NIDHI MEENA DR. JASPER VIKAS GEORGE

National Law University

Delhi (India)

2019
I
 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Correctional Methods for Rehabilitation
of Offenders in India” submitted at is the outcome of my own carried out under the
supervision of Dr. Jasper Vikas George, Assistant Professor.

I further declare that to the best of my knowledge the dissertation does not contain any
part of work, which has not been submitted for the award of any degree either in this
university or any other institutions without proper citation.

(Nidhi Meena & 53LLM18)

Place: New Delhi National Law University, Delhi
Date:
 CERTIFICATE BY SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation entitles “Correctional
Methods for Rehabilitation of Offenders in India”, submitted by Nidhi Meena at
National Law University, Delhi is a bonafide record of her original work carried out
under my supervision. To the best of my knowledge and belief, the dissertation: (i)
embodied the work of the candidate herself; (ii) has duly been completed; and (iii) is up
to the standard both in respect of contents and language for being referred to the
examiner.

(Dr. Jasper Vikas George)

Place: New Delhi Assistant Professor (LL.M)
Date:
 ACKNOWLEDGEMENT

I feel proud to acknowledge the able guidance of my esteemed supervisor Dr. Jasper
Vikas George, National Law University, Delhi, who helped me to complete my
dissertation successfully. His mentorship is paramount in the successful completion of
my work. His continues encouragement, patient guidance, friendly support and valued
suggestions are greatly appreciated for which my mere expression of thanks does not
suffice.

I further wish to express my gratitude to entire NLU, Delhi family especially Prof. (Dr.) Ranbir
Singh (VC of NLU, Delhi) and Prof. G.S. Bajpai (Registrar of NLU, Delhi) for providing all the
infrastructure and facilities.

I acknowledge with pleasure to thank the library and paramount staff of the National Law
University, Delhi for their assistance and support. This research work bears active
encouragement and guidance of my friends and it would never have been possible to
complete this study without an untiring support from my family.

I am greatly indebted to the various writers, jurists and all of others from whose writings
and literature I have taken help to complete this dissertation.

Regards,

Nidhi Meena
 LIST OF ACRONYMS AND ABBREVIATION

AIR All India Report

Art. Article

A.D. After Christ

CBI Central Bureau of Investigation

Cr.L.J. Criminal Law Journal

CrPC The Code of Criminal Procedure

C.M.L.J. Civil and Military Law Journal.

Dr. Doctor

Ed. Edition

Etc Et Cetera (other things)

Govt. Government

GLR Gujarat Law Reporter

HP Himachal Pradesh

HTTP Hyper Text Transfer Protocol

i.e. that is

IGNOU The Indira Gandhi National Open University.

Inc. Incorporated

IPC Indian Penal Code

IT Information Technology

JCC Journal of Criminal Cases

JCC (SC) Journal of Criminal Cases (SC)

JILI Journal of Indian Law Institute.

JJ Juvenile Justice

NCT National Capital Territory

p. Page Number

PDF Portable Document Format

Prof. Professor

RNR Risk-Need-Responsivity Model

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

Sh. Shree

V. Versus

Vol. Volume

UP Uttar Pradesh

UOI Union of India

USA United Sates of America

 LIST OF CASES

1. Dadu Tulsidas v. The State of Maharashtra, AIR (2000) 8 SCC 437.

2. DBM Patnak v. State of Andhra Pradesh, AIR 1974 SC 2092.
3. Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633.
4. Kharak Singh v. State of UP, AIR 1963 SC 1295.
5. Koyabhai v. The State of Gujarat, AIR 2000 Cr.L.J. 664.
6. K.M. Nanavati v. Sate of Bombay, AIR 1961 SC 112.
7. K. Pandurangan v. SSR Velusamy, (2003) 11 ILD 306 (SC).
8. Maganbhai Prasangbhai v. The State of Gujrat, AIR 1994 (2) GLR 977: 1994 (2)
GCD 201.
9. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
10. Motisingh Kesar Singh v. The State of Gujrat, AIR 1994 (1) GCD 822.
11. Poonam Lata v. M.L. Wadhwan, AIR 1987 SC 1383.
12. Rakesh Kaushik v. B.L. Vig, Superintendent Central Jail, New Delhi, AIR 1981
SC 1767.
13. State of Himachal Pradesh v. Lat Singh, 1990 Cr.LJ 723 (HP).
14. State of Maharashtra and another v. Suresh Pandurang Darvekar, AIR 1999 (9)
SC 513.
15. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
16. Sunil Fulchand Shah v. Union of India, AIR (2000) 3 SCC 488.
17. Sate (Govt. of NCT Delhi) v. Prem Raj, (2003) 9 ILD 359 (SC).
 TABLE OF CONTENTS

TITLES PAGE NO.

DECLARATION BY THE CANDIDATE II

SUPERVISOR’S CERTIFICATE III

ACKNOWLEDMENTS IV

LIST OF ACRONYMS AND ABBREVIATION V

LIST OF CASES VII

CHAPTER I 1-8

INTRODUCTION 1

1.1 LITERATURE REVIEW 5

1.2 STATEMENT OF PROBLEM 7

1.3 OBJECTIVES 8

1.4 HYPOTHESIS 8

1.5 RESEARCH METHODOLOGY 8

CHAPTER II 9-22

UNDERSTANDING THE CONCEPT OF CRIME

AND CRIMINOLOGY 9
2.1 THE CONCEPT OF CRIME
9

2.2 THE EARLY CONCEPT OF CRIME

10
2.3 CRIME DEFINATION
12
2.4 CRIMINOLOGY
12

2.2.1. DEFINATION OF CRIMINOLOGY

14

2.2.2.ITS NATURE AND SCOPE

15
2.2.3. ITS OBJECTIVES
20
2.2.4.ITS IMPORTANCE
20

CHAPTER III 23-29

CORRECTION OF THE OFFENDER 23

3.1 THE CONCEPTUAL FRAMEWORK

23
3.2 DEVELOPMENT OF CORRECTIONAL PHILOSOPHY
25

3.3 REFORMATIVE THEORY OF PUNISHMENT

26
3.4 REHABILITATION AS APRIMARY OBJECTIVE
29

CHAPTER IV 30-58

CORRECTIONAL INSTITUION IN INDIA 30

4.1 INTRODUCTION
30
4.2 CORRECTIONAL INSTITUITONS IN INDIA
31
4.2.1. PRISON
32
4.2.2. OPEN PRISONS
35
4.2.3. FINE
37

4.2.4. PARDON
37
4.2.5. SUSPENSION, REMISSION OR COMMUTATION OF
38
SENTENCE

4.2.5.1. SUSPENSION OR REMISSION OF SENTENCE 38

4.2.5.2. COMMUTATION OF SENTENCE 38

4.2.6. FURLOUGH 39

4.2.7. OBSERVATION HOMES 42

4.2.8. SPECIAL HOMES 43

4.2.9. CHILDRENS HOME 43

4.2.10. AFTER CARE SERVICE 45

4.2.11. PROBATION 48

4.2.12. PAROLE 54

CHAPTER V 59-62

CONCLUSION AND SUGGESTIONS 59

BIBLIOGRAPHY 63-67

Books 63

Statutes 65

Reports 65

Articles 66

Websites 66
 CHAPTER I
INTRODUCTION

With the advancement of time, crimes are growing more and more advanced. It is,
hence, essential that if the authorities who have to match the challenges of crime
are to prove equivalent to the task, they must keep up-to-date of and acquire the
techniques of handling and checking such crimes.

The administration of criminal justice all across the world looks to be led by one
cherished principle, i.e. the protection of rights of the accused moreover it is to be
secured at all costs while a criminal justice system circumscribing liabilities. This
is the cause for which the intact criminal jurisprudence has been dedicated thereon
and the overabundances of criminal laws have been set with the changing social
attitudes towards crimes and criminals. When any crime has been committed the
offender is apprehended, tried, punished or acquitted or even in some situations he
is released on probation when the reformative slogan dominates the floor of the
court, even if, he is found guilty. The whole criminal justice system is involving
1
more in defending the rights of the accused than applying punishment. The
quality of justice determines the quality of society and governance. Exactly as
pollution poisons, the natural atmosphere, the ineffective justice system poisons
the social atmosphere. Just and equitable justice is the representation of any
civilized society. The degree of justice in any advanced society depends on a
considerable measure of the quality of judges plus lawyers.2

The administration of justice is a device adopted by the modern civilized

community by replacing the archaic practice of weakening private retribution and
violent self-help. Salmond notes, in his inimitable style, that one of the most
essential elements in the shift from the natural to the civil state is the substitution

1
See, H.D. Mondal, Crime Victims and Their Treatment in the Administration of Criminal Justice, Central
Indian
2
Law Quarterly, 32, Jan. – March, (2001).
See, Subhash Chandra Singh, Criminal Justice System: An Overview, Cr.L.J., 44, March (1999).
1
 of the force of the organized community for the force of individuals, as the
instrument of the redress and punishment of injuries. Private vengeance is
transmuted into the administration of criminal justice, while civil justice takes the
place of violent self-help3.

The expression ‘administration of justice’ can be interpreted in a narrow as well

as wider sense. The narrow meaning flows the dictionary meaning of the
expression. Justice is administered in a case after its institution till the
pronouncement of judgments and execution of the decree, judgment or order 4. In
the wider sense, the expression shall include all the aspects connected with the
administration of justice. In this sense, it means the application of the state of the
sanction of physical force to the rule of justice. It is the forcible defence of rights
and suppression of wrongs. The administration of justice properly so called
therefore, involves in every case two parties, the plaintiff and the defendant, a
right claimed or a wrong complained of by the former as against the latter, a
judgment in favour of the one or the other and the execution of this judgment by
the power of the state. It includes all the functions of the court of justice, whether
they conform to the foregoing type or not. It is to administer justice in the strict
sense that the tribunals of the state are established and is by reference to this
essential purpose that they are found to be a useful instrument, by virtue of their
constitution, procedure, authority or special knowledge for the fulfilment of other
more or less analogous functions. To these secondary and non-essential activities
of the courts, no less than to their primary and essential functions, the term
administration of justice has been extended. They are miscellaneous and
indeterminate in character and number and tend to increase with the advancing
complexity of modern civilization.

Every government whatever is its form, must uphold the law and maintain order
in the society which it governs. There are the basic functions, which any

3
See, K. Madhava, The Criminal Justice System, CBI Bulletin, 4-5, July (1992).
4
Ibid.
 government out to perform. This is essentially done through what is called a
‘criminal justice system’. The system as the very term suggests consists of all the
functionaries, who are concerned with the basic functions of the state, i.e.
maintenance of law and order. As per the Oxford Dictionary, the term ‘system’
means “set of connected things or parts”, set of organs in the body with common
structure or functions.” The various functionaries involved in the process of
maintenance of law and order are governmental functionaries, such as police,
prosecution, judiciary and prison 5 . All these functionaries though perform its
functions independently are its totality. The issue is to achieve the goal of the
system, which is to ensure justice, punishment to the criminal and compensation
to innocent involved in the process.

The criminal justice system may be considered of at least three perspectives. First,
it can be recognized as a normative system that comprises a body of legal rules
stating social values through prohibitions upheld by penal sanctions against
conduct seen as seriously wrong or harmful. Secondly, the criminal justice system
can be regarded as an administration system. This view comprehends the official
apparatus for enforcing the criminal law, including the police and other frontline
enforcement agencies, prosecutorial authorities, the judiciary, and penal and
correctional facilities and services6. A third view of the criminal justice system is
that if the social system. In this perspective, defining and responding to criminal
conduct includes not only the penal law enacted by the legislature but also the
way in which these provisions are interpreted by the citizens at all level. These
three aspects of the criminal justice system may be integrated into examining the
system as a whole7. Criminal justice system as a whole result from the interaction
between legal rules, administrative practice, and social attitudes and behaviour.

5
P.J. FITZGERALD, SALMOMD ON JURISPRUDENCE 104-105 (12th Ed.2016).
6
SEE, SANFORD H. KADISH, ENCYCLOPEDIA OF CRIME AND JUSTICE, 450 (1983).
7
Ibid.
 The criminal justice process in its broader sense begins in social disorganization
and ends in the rehabilitation of criminals in society. The law as an instrument of
social solidarity and cohesion initiates the process by defining and identifying
anti-social behaviour which approximates to the notion of criminal conduct. All
governments in civilized societies of the world owe it to their people to defend
them against these criminal advances of the socially undesirable and mentally
diseased persons8. Because lawbreaking by such person is a normal and highly
dangerous phenomenon, the Government or the law-makers create law
enforcement agencies to identify and wean out those who indulge in law-breaking
and need to be punished by way of removal from social intercourse.

Suppression of crime essentially requires certain agencies to detect and apprehend

the criminals, to adjudicate upon their guilt or innocence and if convicted, subject
them to punishment through various penal institutions. These multiple functions
of detection, trial and administration of punishment are discharged by different
agencies of justice, viz. the police, the criminal law courts and correctional
institutions like prisons where the offender is kept after his conviction9. The
police are primarily concerned with the detection of crimes, apprehension of the
criminals and to bring them to a criminal court for trial. On the other hand, the
criminal courts conduct the trial of the accused on the basis of the evidence
available and decide whether he is guilty or innocent under the existing law. It
also awards different punishments to the convicted persons for the offences
committed by them. After conviction the offender is sent to institutions like the
prison, jail, reformatory institutions, etc. to undergo his term of the sentence.
Therefore, it is evident that the police, the criminal courts and the prison are the
main agencies of criminal justice administration. Besides these, the system of
parole and probation are yet two agencies of justice which seek to reform the

8 P.D. SHARMA, POLICE AND CRIMINAL JUSTICE ADMINISTRATION IN INDIA 33(1985).

9 N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, Vol.
2 (1999).
4
corrigible and young offenders during the term of their sentence and return them
to normal society as a law-abiding citizen.

1.1. LITERATURE REVIEW

Philip J. Cook (1974), “THE CORRECTIONAL CARROT: BETTER JOBS

FOR PAROLEES” discusses that how can men who have been released from
prison be precluded from returning to crime. He says that the present
“correctional system does not correct the prisoner and mostly experiments with
innovative rehabilitation techniques on them, which have reached negative
conclusions. He further said that the most promising avenue for future research is
job creation and the job training programs for released prisoners. In the end, he
has given a result of an empirical characterization of the labour market
confronting parolees and demonstrates that job satisfaction is associated with
parole success.

Farrokh Anklesaria and Scott T. Lary (1992), “A NEW APPROACH TO

OFFENDER REHABILITATION: MAHARISHI’S INTEGRATED SYSTEM
OF REHABILITATION”, in this article the author explains about the Maharishi’s
Integrated System of Rehabilitation which includes the Transcendental Meditation
and offers a uniquely effective approach to correctional education. He says that
studies the inmate’s positive changes in mind, body and behaviour of participating
inmates and staff. He has outlined a theoretical basis of the program which shows
a close alignment with the correctional education mission to deal with the whole
prison. He has also shown some additional evidence of exceptional result from
Senegal, Africa which includes where the entire prison system accepted the
Transcendental Meditation technique on all levels over a two year period. The
result in decreased of prison violence, medical needs and recidivism are also seen
significantly.

Dae H. Chang and Jerome McKean (1981), “CRIMINOLOGY,

DELINQUENCY AND CORRECTIONS” in this article the author has discus
5
about the criminology in the United States has traditionally been the province of
sociology, but the study of crime nine delinquency and corrections has intrigued
scholars from a variety of background. The author discusses the story of growth
and conflict that have characterized criminology. He also discusses the conflict
and consensus approaches in criminological theory, treatment and deterrence as
goals of the criminal justice system and policy analysis as an alternative to causal
analysis in the study of crime. He further also deals with the future of criminology
and the emerging discipline of criminal justice.

N. Prabha Unnithav, “CRIME AND JUSTICE IN INDIA” in this book the

author has attempted to examine India’s crime problem in detail and document if
and how criminal justice system has responded to emerging challenges and
opportunities. The objective is to move beyond mere observations and thoughtful
opinions and make contributions that are next steps in the development of
empirical or evidence-based criminology and criminal justice on this vast country,
by focusing on research that is both balanced and precise. The author has studied
all organizational components or sectors of the criminal justice system are police,
courts and corrections in a balanced approach. In this book, the author has
brought together a diverse set of academics from India, the United States and the
United Kingdom.

Shiv Kumar Dogra (2009), “CRIMINAL JUSTICE ADMINISTRATION IN

INDIA” in this book the author has covered important current issues regarding the
Criminal Justice Administration in India and has also discussed about its
introductory concepts and development. He has studied and also examined the
philosophical goals and theoretical principals of Criminal Justice Administration
in India. The author has defined the concept of crime and compared the criminal
justice administration of India with the US and UK. He has also highlighted the
working system and provisions of present criminal administration and its
drawback also. The book also provides new insight into the working of the police
which is the most important component of criminal justice administration.
Stephen Livingstone (2003), “PRISON LAW” in this the author has offered
comprehensive coverage of the law and the remedies available to prisoners
including a complaints procedure, civil claims, judicial review and claims under
the Human Right Act. The author has discussed both domestic and international
venus of redress in detail. The book covers all aspects of prison life, from
categorization and allocation to living conditions, access to the outside world,
transfer and repatriation, discipline and the procedures governing the release of
fixed prisoners and those serving life sentences. The Prison Rules 1999 are
explained and analysed by the author in this book.

1.2. STATEMENT OF PROBLEM

The Indian criminal justice system has two main responsibilities, i.e. prevention
and control of crime and the protection of civil rights. The most important factor
of preventing and determining crime is the certainty of punishment the efficiency
with which who commits a crime is arrested, prosecuted, convicted and punished.
Efforts should be made to improve the management of prosecution in order to
increase the certainty of conviction and punishment for most serious offenders
and repeaters. For better administration of criminal justice, recidivists, habitual
offenders and violent offenders need to be prosecuted expeditiously in a selective
manner, because these offenders pose a serious threat to the society.

In India, the police, the courts and other correctional agencies tend to be isolated
from each as well as from other communities groups, welfare agencies and
human-rights institutions. It appears that the administration of police, courts,
prisons and probation services tend to maintain their status-quo. As agents and
organs of the government, the police and courts conform to traditional practices
and often have relatively little latitude in which and how to operate. The primary
goals of the criminal justice system can best be secured only through proper co-
ordination between the different wings of criminal justice agencies.
1.3. OBJECTIVES

1. To study the philosophy of correctional administration in India and provisions

relating to it.
2. To study, development and reformation in correctional institutions.
3. To find out the laws applicable to correctional institutions and judicial
precedents relating to it.
4. To study and compare all type of correctional institutions.
5. To examine the present correctional programmes and suggest changes.

1.4. HYPOTHESIS

The present research has determined the following hypothesis to achieve the
objectives.

1. Whether institutional programmes are reformative and rehabilitative in its

application?
2. Whether present correctional institutions are sufficient for the future?
3. Judiciary has recognized many rights of offender whether they are
implemented in correctional institutions?
4. Is there any need for change in the present system of correctional
administration?

1.5. RESEARCH METHODOLOGY

The researcher has adopted doctrinal research method which implies the use of
secondary sources while making the paper. Various books, articles and journals
have been researched sand evaluation of the same was done while writing this
research. Further reference of the landmark judgments was taken however not all
the cases regarding this topic. Other sources like the internet have been used and
total analysis of all the sources was done.
 CHAPTER II

UNDERSTANDING THE CONCEPT OF CRIME AND

CRIMINOLOGY

2.1. CONCEPT OF CRIME

It is a myth to think of a crimeless society. In fact, it is impossible to think of a

society without the problem of crime and criminals. The concept of crime is
primarily concerned with social order. It is well known that men’s interests are
best protected as a member of the community. Everyone in society owes certain
duties to his fellow-men and at the same time has certain rights and privileges
which he expects others to ensure for him.

Aforementioned thought of mutual respect and trust for the rights of others
regulates the conduct of the members of society inter se. Although most people
believe in “live and let live” principle yet there are few who, for some reason or
the other, deviate from this normal behavioural pattern and associate themselves
with anti-social elements. This obviously imposes an obligation on the State to
maintain normalcy in society. The difficult task of protecting the law-abiding
citizens and punishing the lawbreaker's vests with the state which administers it
through the assistance of the law. 1 It is for this reason Salmond has defined law as
a ‘rule of action’ governing the conduct of people in society. The conducts which
are prohibited by the law in force at a given time and place are known as wrongful
acts or crime whereas those which are permissible under the law are treated as
lawful. The wrongdoer committing a crime is punished for his guilt under the law
of crime.2

1
N.K. CHAKRABARTI, SOCIAL DEFENCE IN THE ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL
C
2
ORRECTION Vol. 5(1999).
Ibid.
 2.1.1. EARLY CONCEPT OF CRIME

Eternally considering the dawn of human civilization crime has been a baffling
problem. There is only any society which is not besieged with the problem of
crime. Reflecting on this appearance of the crime problem, Emile Durkheim in his
monograph “crime as a normal phenomenon” says, “A society formed of persons
with divine qualities would not be unfettered from violations of the norms of that
society”. In reality, crime is a progressive concept of every society as it is a
significant condition of the social organization. 3 Many groups have variable and
often contradictory interests in the society which give rise to conflicts ultimately
resulting in the occurrence of crime.

Historically, the idea of crime appears to have always been evolving with the
shifts in social conditions during the evolutionary stages of human society. That
can be explained by the fact that early English society during the 12th and
13thcenturies included only those acts as a crime which was committed against the
State or the religion. Therefore, treason, rape and blasphemy were treated as
crime whereas ‘murder’ was not treated as a crime.4

Primitive society didn’t recognize any distinction between the law of crime and
tort but only knew the law of wrongs. Commenting on this point, Frederick
Pollack and Maitland observed that the English society prior to the tenth century
confused crimes with torts because the bond of family was far stronger than that
of the community,5 the injured party has kindred could avenge the wrong by
private vengeance and self-redress. Throughout this period, resort to legal remedy
was studied merely an optional alternative to self-redress. The wrongdoer was
considered to offer compensation to the person wronged, the quantum of which
depended on the extent of the wrong caused and the status of the sufferer. This
payment of compensation known as ‘bot’ washed away the guilt of the wrongdoer

3
DONALD R. TAFT, CRIMINOLOGY (2nd Ed.1964).
4
See, Oppenhimer on “Rationale of Punishment.”
5
RADCLIFFE AND CROSS, THE ENGLISH LEGAL SYSTEM 6(6th Ed.1977).
10
 and transferred him to a position as if he had done no wrong. The early Anglo-
Saxon laws included particular details of compensation (bot) which was payable
for different wrongs with a view to helping the person wronged in seeking
redress.”

Another characteristics feature of this period (1000 to 1200 A.D.) in the history of
crime was the preponderance of the system of ordeals by fire or by water 6 to
establish the guilt or innocence of the accused. This was perhaps due to the
dominance of religion in the early days and superstitions of the people who
believed that their social relations were governed by some supernatural power
which they regarded omnipotent.

According to Dharamsastra writer’s ordeal was a living institution in India.

Epigraphic and legal studies show that ordeal was practised rigorously according
to the Dharammstra rules since times immemorial in Indian history. Ancient
writers have pointed to the ordeals as divine methods with various names such as
Samayakriya, Sapatha, Divya or Pariksha. Ordeals were treated as a divine means
of proof about the guilt or innocence of the accused. The two main aspects of
ordeals were: (i) they indicated the divine aspect of the trial, and (ii) the basic idea
underlying this method of trial was the need of divine intrusion at a crucial
moment in administering justice. Hence, the ordeal was an antique institution, a
deeply rooted custom, practised by the people in ancient India. In Yajnavalkya
five kinds of ordeals are mention, they are Balance, Fire, Water, Poison and
Kosa.7

By the pace of time, human reasoning changed and the king considered greater
responsibility for apprehending offenders, a duty which was previously the sole
concern of the injured party. The diversity in civilization, culture and

6
In the ordeal by fire the accused was to carry a red hot iron to a distance of nine feet. Thereafter, his hands
were bound up unbandaged. After three days, if the wound was healed up, he was considered to be
innocent. In ordeal by water, the accused was bound and lowered in a pool, if he sank a certain distance, he
was innocent otherwise he was considered to be guilty and punished.
7 DR. S. N. PENDSE, OATH AND ORDEALS IN DHARAMSASTRA 24 (1985).
11
 advancement of scientific knowledge also induced a change in the concept of
crime which eventually led to the emergence of criminology as an independent
branch of knowledge.

2.1.2. CRIME DEFINATION

A definite definition of ‘crime’ is by no means an easy job. Usually, almost all

societies have some norms, beliefs, customs and traditions which are implicitly
endured by its members as an accessory to their well being and healthy
development. Infringement of these cherished norms and customs is condemned
as anti-social behaviour. Thus, many writers have defined ‘crime’ as anti-social,
immoral or sinful conduct which is declared to be socially harmful in a state and
as such forbidden by law under pain of some punishment. Hence, Tappan has
described crime as “an intentional act or omission in violation of criminal law
committed without any defence or justification and penalized by the law as crime
or misconduct.”8

Austin prefers a procedural definition of law and stated that a wrong which is
pursued at the discretion of the injured and his representatives is a civil
injury(tort), but a wrong which is pursued by the sovereign or his subordinates is
a crime which results in punishment.

Halsbury defines crime as an unlawful act which is an offence against the public
and the perpetrator of that act is liable to legal punishment.

2.2. CRIMINOLOGY

Enrico Ferri, the noted Italian criminologist once observed that most of the
progressive countries today are engaged in safeguarding the interests of their
people by adopting a policy which can best protect the society from crime and
criminals. Obviously, the success in eliminating crimes from a society which is

8TAPPAN PAUL W: CRIME JUSTICE AND CORRECTION 8 (1960).

12
 otherwise known as Social Defense largely depends on the efficacy of criminal
law administered in a particular country. That is the reason why the past few
decades have witnessed revolutionary changes in criminologists are engaged in
working out a common penal programme which could be uniformly acceptable to
all countries of the world. The ultimate object is to minimize the incidence of
crime by an effective administration of criminal justice through agencies such as
the court, police, prison, reformatories and other modern correctional institutions.9

The problem of crime control essentially includes the need for a study of the
forces administering behind the incidence of crime and a variety of co-related
factors affecting the personality of the offender. This has eventually led to the
development of modern criminology during the preceding two centuries. The
purpose of the study of this branch of knowledge is to analyze different aspects of
crime and device effective measures for treatment of criminals to bring about their
socialisation and rehabilitation in the community.10 Therefore, criminology as a
branch of philosophy has a practical utility insofar as it aims at bringing about the
well-being of the community as a whole. The principles of criminology serve as
effective guidelines for the formulation of penal policy. These present clinical
techniques and the reformatory measures such as probation, parole, indeterminate
sentence, open prisons and other correctional institutions are significantly an
outcome of intensive criminological researches during the 20th century. These
measures have sufficiently demonstrated the futility of dumping offenders inside
the prison cells and infliction of barbaric punishments.

Prof. Gillin has aptly observed that it is not the humanity within the criminal but
the criminality within the human being which needs to be curbed through
effective administration of criminal justice. Moreover, recently, criminologists
and penologists seem to have agreed that “individualization of the offender should

9
See, supra note 1.
10
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, Vol. 2
(1999).
 be the ultimate object of punishment while treatment methods, the medians to
achieve this end”.11 The study of crime and criminals must proceed on a scientific
basis by carefully analyzing various aspects associated therewith and must
necessarily suggest measures proposed to suppress criminality. It must be added
that with new crimes emerging in modern complexities of life, we seem
increasingly concerned about the problem of crime. Today adverse acts of
terrorist activities, white-collar crimes, cyber crimes, criminalization of policies,
hijacking, tec., are steadily increasing which have posted a positive danger to
human life, liberty and property. Modern criminologist, hence, seems to be
severely concerned with the problem of crime to protect the society from anti-
social activities of criminals. It is for this reason that the two relative branches of
criminal science, namely, criminology and penology, should work hand in hand to
acknowledge the problem of criminality12 in its proper outlook.

2.2.1. DEFINATION OF CRIMINOLOGY

The term ‘criminologist’ is derived from the combination of two Latin words
crimen and Greek word logia. Etymologically, it stands for ‘scientific study of the
nature, extent, causes and control of criminal behaviour’. According to Coleman
and Norris, criminology is the study of the nature of the crime, the perpetrators of
crime, the causes of crime, the formulation of criminal laws and law
implementation, and the means in which that crime can be controlled13.

Donald Taft preferred a simplistic definition of criminology and observed that it

includes a scientific analysis and observation of crime and criminals whereas
penology is concerned with the punishment and treatment of offenders. He
pointed out that the development of criminology has been much later than that of
penology because, in early periods, the emphasis was on punishment and

11
See, supra note 1.
12
See, supra note 10.
13
COLEMAN AND CLIVE NORRIS: INTRODUCING CRIMINOLOGY 10 (2000).
14
 treatment of offenders rather than a scientific investigation into the causation of
crime.14
Sutherland has come out with a more comprehensive definition of criminology.
He determined criminology as “the body of knowledge regarding delinquency and
crime as a social phenomenon and it includes within it, the process of making
laws, breaking laws, and of reacting toward the breaking of laws. The objective of
criminology is the development of a body of general and verified principles and
other types of knowledge regarding this process of law, crime and reaction to
crime”.15

2.2.2. NATURE AND SCOPE OF CRIMINOLOGY

Criminology deals with the legal psychiatric aspect or the medico-psychological,

biological or sociological aspect of criminality and factors related therewith.16 It,
therefore, follows that criminology and criminal policy are interdependent and
mutually support one another. Thus, criminology seeks to analyze the aspect of
criminality in its entirety. The science of criminology may further be split into
two, namely, (1) theoretical or pure criminology; and (2) applied or practical
criminology.

Prof. W.A. Bonger preferred to study theoretical criminology under with the
following subheads:-

1. Criminal Anthropology – it seeks to understand the personality of the offenders

in physical terms. Cesare Lombroso was the first to propound this view which
eventually led to the origin of modern criminology. He was first in point of time
to explain criminal behaviour in terms of physical characteristics of the offender
and emphasized that criminals were different physically from normal persons and

14
DONALD R. TAFT, CRIMINOLOGY 4-7 (2nd Ed.1964).
15 EDWIN HARDIN SUTHERLAND, DONALD RAY CRESSEY AND DAVID F. LUCKENBILL, PRINCIPLES OF
CRIMINOLOGY 3 (11th Ed.1948).
16 DR STEPHEN HURT WITZ, CRIMINOLOGY 427(1948).

15
 possessed inferior physical characteristics. Though this view is no longer
supported by modern criminologists it does have its theoretical importance.
2. Criminal Sociology – It is based on Sutherland’s theory of ‘differential
association’ which explains criminal behaviour as a process of learning through
association with other criminals. However, this theory does not adequately take
into account the personality traits or psychological variables in criminal
behaviour.

3. Criminal Psychology – It seeks to correlate criminality to the emotional aspect

of human nature. French psychologist Alfred Binet and Prof. Jerman of USA are
the main propounders of this view. Dr. Arnold and Dr. E.A. Hooton carried
further researches on this aspect of criminal behaviour.

4. Criminal Psycho-neuro-pathology – This branch of criminology attributes

criminality to functional deviations and mental conflicts in the personality of the
offender. The constituents such as inferiority complex, frustration, despair,
anxiety, etc. may drive a person to commit crimes. Dr. Glueck and Freud are the
main exponents of this view.

5. Penology – it concerns itself with the various aspects of punishments and penal
policies. The various mechanisms of punishing the offenders are also studied
under penology.

Applied criminology, on the other hand, includes the study of criminal hygiene
and criminal policy which is founded on solid derivative conclusions.17

Besides these two, there is yet another branch of criminology called criminalistics
which connotes the police techniques of crime investigation and detection. It
provides very useful material for study and understanding of criminal justice
administration from the point of view of field officers whose main pre-occupation

17
See, supra note 1.
 is to deal with the law and procedure relating to investigation and prosecution of
criminal cases.

Dr. Kenny opines that criminology is a branch of criminal science which deals
with crime causation, analysis and prevention of crimes.

Criminology as a part of science is concerned with those particular conducts of

human behaviour which are restrained by society. It is, therefore, a socio-legal
study which seeks to discover the causes of criminality and suggests remedies to
reduce crimes. Sociologists, however, differ in their view about criminology. In
their opinion, every anti-social act emanates from some criminogenic tendency
which needs to be cured by society. 18 Thus, they attempt to correlate the concept
of crime with other sociological and environmental factors. However, the judicial
approach to criminology suggests that an act to become a crime must conform to
two cardinal principles of criminal liability, namely:-

(i) Nullum crimen sine lege,

(ii Nulla poena sine lege.

According to the first principle, no one is held criminally liable unless he has
done an act which is expressly forbidden under the existing criminal law of the
land and has a guilty state of mind to do it. The second principle suggests that
none can be punished for an act unless it is made punishable under the law. Thus,
it is doubtful whether a swimmer who keeps on watching a child drowning in a
pond but makes no effort to save the life can be punished under the criminal law
for the omission to rescue the child.

As stated earlier, a universally acceptable definition of criminology seems to be

rather difficult. Criminologists have always differed in their views about the
approach to this subject. A legalistic approach to criminology is altogether
different from that of sociologists, psychologists, biologists. Legalists tackle the

18
See, supra note 16.
17
 issue from the criminality standpoint though they cannot afford to completely
overlook its sociological aspect because of which entails punishment and is
essentially concerned with society as such.

Some authorities suggest that criminology deals with the discoursal study of all
anti-social acts which are disapproved by society. But it may be pointed out that
the term ‘anti-social’ itself is very comprehensive and wide in its scope. There are
several conditions which may ultimately contribute to the incidence of crime. In
the case of juvenile delinquency, a child left without proper care and attention is
often not able to adjust himself or herself to the accused norms of society. It is,
therefore, the concern of a sociologist to find out as to what conditions or factors
have really contributed to the delinquent nature of the child. Here again, purely
sociological approach shall not serve the desired purpose unless other personality
traits of the delinquent are also taken into consideration to determine his/her
guilt.19

This was earlier believed that some persons inherit devilish leaning by birth. They
were, since, known as born criminals or criminals by nature and were regarded
incorrigibles. The only way to keep them off was their complete elimination from
society. Later, by mid-eighteenth century Beccaria, the pioneer of modern
criminology advocated his classical theory of criminal behaviour which was
founded on ‘free will’ of the individual. Through a series of systematic researches
he successfully exploded the theory of born criminals and established that
everyone is master of his own self and is free to act as he wants. Thus, a man
resorts to criminal act out of his own intelligence and free will.

Beccaria’s ‘free will’ theory was, however, subsequently challenged by

positivists, notably Lombroso and Tarde who suggested that man is not self-
determining agent free to act as he likes but is fundamentally a biological
organism. It is, therefore, the biological consideration which determines his acts

19
GILLIN, J.L., CRIMINOLOGY AND PENOLOGY (3rd Ed.).
18
 and behaviour. Every person, as a biological creature tries to adjust himself to a
social environment. It is with this pre-supposition that sociologists precipitated the
theory of ‘Differential Association’ by correlating crime to the environment. With
the advance of knowledge and development of criminal science, it was gradually
realized that no one is born criminal but it is the circumstances that make him so;
not because he wants to be a criminal but he is rather forced to lend into
criminality.
Later, the sociologists started gauging with misconception eyes the real cause of
crime which may be etiological, psychological, economic, political, cultural or
social. Thus, it cannot be denied that the environment plays a vital role in crime
causation. To illustrate the point further, it may be mentioned that
industrialization has led to the disintegration of the joint family system which in
turn, has given impetus to women employment and this has finally slackened the
control of parents over their wards. Consequently, there has been a considerable
increase in juvenile delinquency in recent years. The liberalized legislation on
divorce and legalizing abortion in certain cases has led to the multiplicity of sex
offences. The unethical political activities during the post-independence era have
led to enormous political crimes.20 More recently, criminalization of politics has
reached alarming dimensions leading to incidents of violence including rape,
murder, mass killings, etc. White collar crimes such as hoarding, smuggling,
black-marketing, monopolies, etc. have virtually paralyzed India’s economic
stability. In short, the problem of crimes has assumed new dimensions and needs
to be tackled effectively. It is for this reason that noted criminologist Donald Traft
has rightly pointed out that criminology is behavioural science dealing with those
actions of the individual which do not have the approbation of society.

Prof. Sutherland characterized crime as a symptom of social disorganization. In

his view, just as the pain in the human body is the notification of disorganization
of some organ of the human body, so is the crime with society. Considered from

20
See, supra note 19.
19
 this standpoint, it is no exaggeration to say that workers strikes are moral holidays
for them.

It shall be erroneous to think that the scope of criminology is confined only to the
integrated theory of crime causation and the policies of crime control. It also takes
notes of certain non-criminal behaviours within the purview of its study. For
example, an investigation into the causes of juvenile delinquents reveals that they
lend into delinquency because their energies are not properly channelized. Thus,
modern criminologists are more realistic in their approach to crime and criminals
than their predecessors. They lay greater emphasis on multiple causations because
they are convinced that crime is a social phenomenon, the political society
reacting to it through punishment, treatment or preventive measures and this
sequence of interaction is the ultimate object of criminology.21

2.2.3. OBJECTIVE OF CRIMINOLOGY

The primary object of criminology is to study the sequence of lawmaking, law-

breaking and reaction to lawbreaking from the point of view of the efficacy of law
as a measure of crime control. It focuses on causation of crime various factors that
lead a person to criminality and prevention of crime and criminals. It is a field of
study, which is related to a variety of branches of social sciences such as
sociology, economics, biology, psychology, topography, political set up, statistics,
etc. and therefore, essentially inter-disciplinary in nature. The ultimate objective
of criminological studies is to “curb criminality within the human being by
effective administration of criminal justice and not the humanity within the
criminal”22.

2.2.4. IMPORTANCE OF CRIMINOLOGY

The need for study of criminal science (which includes criminology, penology,
and criminal law) essentially emanates out of the psychological apprehension

21
22 See, supra
GILLIN note
, J.L., 16.
CRIMINOLOGY AND PENOLOGY 14 (3rd Ed.).
20
about the insecurity of life, liberty and property of the people. It is the lust for
wealth, the satisfaction of baser urges, hatred or suspicion of one another that
tends people to follow criminal behaviour and lends them to commit a crime. The
science of criminology, therefore, aims at taking up the case to a case study of
different crimes and suggests measures so as to infuse the feeling of mutual
confidence, respect and co-operation among the offenders. The new penological
reforms have attained considerable success in this course. The criminal law has
been adequately modified to adapt itself to the modern reformative policies.
Liberalization of punishment for granting greater chances to the rehabilitation of
offenders by intensive aftercare programmes has been considered as the ultimate
object of penal justice. Some of the vital attributes of criminology are noted
below:

(i) The most significant aspect of criminology is its concern for crime and
criminals. It presupposes the study of criminal with the basic assumption that no
one is born criminal. This reviews reformation as the ultimate object of
punishment while individualization one method of it. Utmost criminologists and
penologists usually agree that every criminal is corrigible if given adequate
opportunities by treatment methods.

(ii) As Donald Traft rightly puts it, the study of criminology also offers a
background for the profession and an opportunity for social workers. The police,
the lawyers, attorneys, judges, jurors, probation officers, detectives and additional
specialists such as psychologists, psychiatrists and sociologists, etc., need a
distinct understanding of criminology including administrative machinery for
criminal justice system for their professional pursuits.

(iii) Criminology also seeks to create conditions conducive to social solidarity

inasmuch as it tries to point out what behaviours are obnoxious and anti-social. It
tries to convince the offenders through punitive sanction that antisocial conduct
on their part is bound to entail them punishment, misery, misfortune and disrepute
 in society. The reformative approach offered to first offenders, juvenile
delinquents and insane criminals is aimed to reform them as law-abiding members
of society. Several correctional methods are devised to accomplish this purpose.
The final object is to render a crime free society as far as probable with a sense to
attaining social unity.23

(iv) It is further to be noted that with the advance of scientific knowledge and
technology the complexities of life have also considerably multiplied. This has
directed to an immense increase in crime rate and many distinct crimes which
were formerly altogether foreign have emerged. Thus, thefts of automobiles,
shoplifting, smuggling, financial scams, bank robberies, scandals, terrorist
activities, etc., have become too common these days. Again, white collar crime 24
has attracted the attention of criminologists in recent years. This, in change, has
led criminal law administrators to devise novel methods and techniques to tackle
these problems by intense scientific researches. The modern computer-related
crimes have cast new challenges before criminal law administrators throughout
the world. Besides internet gambling, online pornography, the menace of drug-
trafficking through computer-shopping and illegal downloading of money in
transit25 is some of the cyber-crimes which are coming to light in recent years.
Thus, modern criminologists keep themselves acquainted with new criminological
development and work out strategies to tackle these intricate problems for the
protection of society.

23 LINNET DOLINEN-GAHAR, HANDBOOK ON INSTITUTIONAL CORRECTION, (2013).

24
The example of 2G spectrum (2010).
25
This is termed as ‘ Money laundering’.
 CHAPTER III
CORRECTION OF THE OFFENDER
3.1. THE CONCEPTUAL FRAMEWORK

Correctional machinery is an integral part of the criminal justice system. If the

purpose of the system is to achieve prevention of crimes the system cannot afford
to leave the correctional and rehabilitation aspect unattended.

The term ‘correction’ is more aptly to refer to the rehabilitation of the offender. It
is a generic term which applies to correct, amend or put right the criminal
behaviour. It is the concept of “self engineering chain” where the person is an
actor as well as reactor an active participant in the development of self and some
believes that it is a revolving door.

Rehabilitation is said to be based on consequentialism approach of punishment.

The consequentialism approach postulates the consequence of a sentence.
Rehabilitation is the one expect deterrence and incapacitation. It has also one
major limitation that it can be resorted to only after going through the whole
process of the criminal justice system.

1
Rehabilitation finds theoretical justification on the premise that offender
commits crime because of unfavourable social circumstances. Hence it is an
obligation of the society to intervene and right of the offender to take help from
the society. Another justification is based on the utilitarianism of Bentham. That
way should be adopted which produces the greatest happiness of the greatest
number of people. The rehabilitation theory also advances the concept of
restorative justice.2

1
TRAVIS C. PRATT, JACINTA M. GAUET.AL., KEY IDEAS IN CRIMINOLOGY AND CRIMINAL JUSTICE (2011).
2
LINNET DOLINEN-GAHAR, HANDBOOK ON INSTITUTIONAL CORRECTION, (2013).

23
 Jeremy Bentham, in his book, Principles of Legislation, said that a penal system
ought not to be brought cruel because it includes a great variety of the
punishment. The multiplicity and the variety of punishment prove the industry
and the cares of the legislature. The more we study the nature of offences and of
motives, the more we examine the diversity of characters and circumstances, the
more we shall feel the necessity of employing different means to counteract them.
Variety in punishments is one of the perfections of a penal code.

A burden shared is a burden lessened is the philosophy behind the rehabilitation

of the offender in the community. Rob White in his writing 3 has discussed the
conceptual foundation of rehabilitation in great detail. He also discussed various
correctional and rehabilitative techniques. He was if the view that rehabilitation is
based on two approaches i.e. justice approach and welfare approach. Punishment
in most of the countries derives its philosophy from either of these two
approaches. The third approaches of rehabilitation inmates somewhere between
these two and emphasize on restorative justice.

D.A. Andrews and J. Bonta developed the Risk-Need-Responsivity (RNR) Model

which first emerged out of Canada in 1980s, during the heyday of the “nothing
4
work” pessimism around rehabilitation. In the criminal justice process, risk
assessment is the process of determining an individual’s potential for harmful
behaviour toward himself or others. They further classified risk as a static and
dynamic risk. The concept of “need” is related to “risk” in the sense that
individuals whose needs are not met might be said to be a risk of harm of some
sort. Need are categorized as criminogenic and non-criminogenic needs. Further,
the responsivity principle states how the offender responds to the treatment meted
out to him. It also says that treatment or correctional method should be applied
after assessing the risks and needs associated with the offender in question as to
maximize the effect of the applied correctional method. It is the basic concept in

3
See, Rob white, “Community Corrections and Restorative Justice”, 16 Current Issues in Criminal Justice.
4
See, Jan Looman & Jeffery Abracen, “The Risk Need Responsivity Model of Offender Rehabilitation: Is
There Really a Need for a Paradigm Shift?” 8IJBCT34 (2013).
 corrective and rehabilitative techniques. They also developed an assessment tool
for this purpose.

3.2. DEVELOPMENT OF CORRECTIONAL PHILOSOPHY

Man’s approach to criminals can be conveniently summarized as a succession of
four R’s.
1. Revenge
2. Restraint
3. Reformation
4. Reintegration.

With the addition of each R important changes were made in the correctional
process. Until about the middle of the 18th century, Revenge was the primary
response to crime. A correction was motivated principally by punishment and
retribution. Banishment and corporal and capital punishment were techniques
employed on offenders for their transgressions. It was also believed that corporal
punishments and execution would punish and execute the evil spirits that were
seen as the cause of a person’s criminal tendencies, thereby preventing harm and
contamination of the innocent.5

In the late 18th century and early 19thcenturies, an important revolution in

correctional philosophy took place by the growth of western democracy and the
influence of contemporary rational philosophers and legal scholars. Criminals
began to be heeded not as possessed by evil simply as persons who had
intentionally decided to break the law because it proffered them pleasure or profit.

The need for a rational and equitable correctional system was felt in the
18thcentury. Under such a view, reactions to crime should be rationally based on a
pleasure-pain principle. Less punishment for less severe crimes and harsh
punishments for serious crimes was the motto. Then, correctional institutions

5
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, Vol. 2
(1999).
 become places for “reflection in solitude leading to repentance and redemption”. 6
Thus, Restraint became the correctional philosophy during this period and
correctional institutions were introduced for the application of this philosophy.

The Reformation was introduced in the 19 th century and early 20thcentury. The
American prison association known as the American Correctional Association
established its goal was “reformation, not vindictive suffering is the purpose of
penal treatment”. Treatment rather than punishment was called for professional
and specialization rather than a generalized response came to be accepted. The
Reformation movement thus introduced a complex approach to corrections
extending far beyond just confinement and punishment. Many of today’s
correctional systems and programmes are the product of the Reformation era,
although there are varying degrees of sophistication in their practices. However,
reformation is still part of the present approach in corrections, although it does not
constitute the ultimate goal.

However, now another revolution has cropped up i.e. the concept of

Reintegration. The general feeling is that focus only upon reforming the offender
is inadequate and restrictive. Successful rehabilitation is a two-sided coin,
including reformation on one side and reintegration on the other. Corrections must
develop approaches which prepare the offender to deal with social, economic,
educational pressures etc. that are exerted upon a person living in a particular
society. This would help such offenders to become part of the society once again
thereby removing the crime and not the criminal.

3.3. REFORMATIVE THEORY OF PUNISHMENT

With the passage of time, development in the field of criminal science brought a
radical change in criminological thinking. There stood a new appearance to the

6
DONALD T. SHANAHAN, THE ADMINISTRATION OF JUSTICE: AN INTRODUCTION 317-318. CITED IN S.P.
SINGH MAKKAR, “CORRECTIONAL OBJECTIVES OF PRISON: A CRITIQUE ON JUSTICE KRISHNA IYER’S
CORRECTIONAL MEDIATION” 39 Pulr 143 (1992).
problem of crime and criminals. Individualized treatment becomes the cardinal
principle for the reformation of offenders. This view found expression in the
reformative theory of punishment.
While abreast deterrent, retributive plus preventive justice, the reformative
method to punishment attempts to bring about a shift in the nature of the offender
so as to reform him as a law-abiding part of society. Punishment is used as a
measure to reclaim the offender and not to torture of harasses him. Reformative
theory condemns all kinds of corporal punishments. The major emphasis of the
reformist movement in the rehabilitation of inmates in penal-correctional
institutions so that they are transformed into law-abiding citizens. Those
correctional institutions beget either maximum or least protection methods. The
reformists advocate humane treatment of inmates inside the prison institutions.
They also suggest that prisoners should be properly trained to adjust themselves to
free life in society after their release from the institutions. The agencies such as
parole and probation are recommended as the best measures to reclaim offenders
to society as a reformed person.7

The reformative view of penology suggests that punishment is only justifiable if it

looks to the future and not to the past. “It should not be regarded as settling an old
account but rather as opening a new one”. Therefore, the followers of this view
support prisonisation not only for the purpose of separating criminals and
deporting them from society but to begin about a shift in their rational vision by
adequate means of reformation during the course of their sentence.

Unquestionably, modern penologists reaffirm their belief in reformative justice

yet they firmly feel that it should not be pulled too far. The reformative
approaches have shown beneficial in cases of juvenile delinquents, women
including the first offender. Sex psychopaths also seem to respond favourably to
the individualized treatment model of punishment. However, the recidivists and
hardened criminals do not respond favourably to the reformist ideology. It is for
7
See,supra note 6.
 this reason that Salmond has observed that though general substitution of
reformation for deterrence may seem disastrous, it is necessary in certain cases
especially for abnormal and degenerates who have diminished responsibility. 8 It,
therefore, follows that punishments should not be regarded as an end in itself nut
only as a means the end being the social security and rehabilitation of the offender
in society.

Some penologists hold condemned ‘rehabilitative ideal’ rather the ‘reformist

ideology’ underlying individualized practice model because in work they are
more penal, unfair and inhumane than retribution or deterrence. Writing about the
condition of prisons in Russia and France, Peter Kropotkin observed, “prisons are
seen as symbols of our hypocrisy regarding rehabilitation, our intolerance for
deviants or our refusal to deal with the root causes of crime such as poverty,
discrimination, unemployment, ignorance, over-crowding”9 and so on.

The authors of an American study criticized reformist ideology stating that “it
never commended more than lip service from most of its more powerful
adherents. Prison officials, who comprised the rehabilitative model, have made so
because it enhanced their power above inmates”10.

It is a known fact that punishment always carries with it a stigma in as much as it

fetters the normal liberty of the individual. It has become an integral part of law
enforcement for securing social control. Punishments are inevitable for recidivists
who are habitual law-breakers. The tendency among recidivists to repeat crime is
due to their inability to conform to the accepted norms recidivists to repeat crime
is due to their inability to conform to the accepted norms of society. Investigative
researches reveal that it is the mental depravity of the offenders which makes
them delinquent and therefore, a system of clinical treatment seems inevitable for

8
SALMOND, JURISPRUDENCE 27(12th Ed. 1966).
9
KAMENKA& BROWN, IDEAS AND IDEOLOGIES LAW AND SOCIETY 112 (1978).
10
An American Report on Crime and Punishment entitled. “Struggle for Justice” prepared by American
Friends Service Committee 112 (New York 1971).
 the correction of such offenders. However, there is a need for
compartmentalisation of offenders for their purpose on the basis of age, sex, the
gravity of the offence and mental condition. The purpose is accomplished by
systematic classification of criminals into separate categories such as first
offenders, habitual offenders, recidivists, juvenile delinquents, insane criminals,
sex psychopaths etc. the correct approach would be to treat punishment as sort of
social surgery since criminal is essentially a product of conflict between the
interests of society.

3.4. REHABILITATION AS PRIMARY OBJECTIVE

The integrated goal of corrections today is to protect society by controlling

offenders and preventing crimes. Restraining the offender in custody for some
time protects society from crimes which he might otherwise commit. To be
positive and truly “correctional”, corrections must aim rehabilitation and
reintegration of the offenders to enable them to return to the society as productive,
law-abiding citizens and consequently re-establishing the community’s
acceptance and faith.

Therefore, rehabilitation is the primary objective in any correctional institutions

but it has necessarily to be accompanied by social acceptance of the offender.11

11
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: PERCEPTION AND PERSPECTIVE, Vol.
1(1999).
 CHAPTER IV

CORRECTIONAL INSTITUTIONS IN INDIA

4.1. INTRODUCTION

Correction is the thirds and final phase of the criminal justice process. Beginning
with law enforcement as the case finding phase, the courts determine by trial
under due process of law and corrections attempts to rehabilitate the neutralized
and deviant behaviour of adult criminals and juvenile delinquents. The successes
and failures of the criminal justice system are measured in the field of corrections.
The productivity of the entire criminal justice system is judges by the productivity
of corrections.

The basic purpose of the criminal justice system is to eliminate or to at least to

reduce crime and delinquency. It is to the benefit of society as a whole to remove
those conditions that spawn crime. The factors that contribute to the making of
delinquents and criminals are many and complex.

Over the centuries, corrections and punishments have been synonymous. Even
today this attitude is held by a sizable segment in society particularly in cases that
involve serious crimes. Although basic attitudes towards more ‘humane’
techniques, society acts as the agents of punishment on behalf of the victim rather
than permitting the private settling of feuds. In some views, punishment has been
defended as permitting the offender the feeling of having atoned for his or her
anti-social action while reaffirming the appropriateness of non-criminal behaviour
among the law-abiding members of society.2

1 CHARLES, F. HEMPWILL, CRIMINAL PROCEDURE: THE ADMINISTRATION OF JUSTICE 3-4(1978).

2 ROBERTS D. PURSLEY, INTRODUCTION TO CRIMINAL JUSTICE 7 (3rd Ed.1977).
30
 The reformative aspect of penology recommends that punishment is entirely
defensible if it appears to look at the future and not to the past. “It should not be
regarded as settling an old account but rather as opening a new one.” Thus, the
supporters of this view justify prisonisation not solely for the purpose of isolating
criminals an eliminating them from society but to bring about a change in their
mental outlook through effective measures of reformation during the term of their
sentence.

The modern systems of probation, parole and juvenile justice reformatories and
open institutions, etc have provided potentially helpful in the elimination of
isolationism from which preventive and corrections scheme have suffered for
long. The working of prison institutions has been remodelled to suit the modern
corrective methods of treatment of offenders. The correctional process is charged
with carrying out two fundamental responsibilities of government, i.e. the
3
protection of society and the rehabilitation of the convicted offenders. The
correctional function is apportioned primarily among prison, probation, parole
and juvenile justice system, etc.

4.2. CORRECTIONAL SERVICES IN INDIA

Correction remained a word almost unknown to most law-abiding citizens, and

there was also a tendency to think that imprisonment was the total correctional
process. As such, corrections carried the immediate task of maintaining custody of
the offenders and the long-range goal of treatment, rehabilitation, and integration.
For these purposes, the correctional process offered alternatives as probation,
parole, institutionalization, etc.

Under the modern correctional philosophy, the function of the penal institutions is
to find the ways to reshape the interests, attitudes, habits and the total characters

3 N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: PERCEPTION AND PERSPECTIVE, Vol.

1(1999).
 of prisoners or the offender’s so as to reintegrate them in the society after they are
released from the prison.

It was aptly pointed out by Justice Fazal Ali “The modern concept of punishment
and penology has undergone a vital transformation and the criminal is not now
looked like a grave menace to the society which should be got rid of but is a
diseased person suffering from mental malady or psychological frustration due to
sub-conscious reactions and is, therefore, to be cured and corrected rather than to
be destroyed..”.

4.2.1. PRISON

Crime and criminals are the by-products of a social system. In other words, roots
of crimes lie deep in the society of which the individual is an integral part. When
a crime is committed, the guilty are subjected to punishment according to the law
of the land. The modes of punishment may vary keeping in view the offence
committed. When a person is adjudicated guilty of having committed a crime and
sentenced to imprisonment, prison is usually the place where he is to be kept
while undergoing sentence.4

The history of prisons in India and elsewhere clearly reflects upon the changes in
the society’s outlook for reaction to crimes from time to time. The system of
imprisonment represents a curious admixture of different objectives of
punishment. Thus, it may be intended to deter the offender or used as a method of
retribution or vengeance by making the life of the offender unfavourable and
unpleasant in the prison. The fact that the criminals undergoing imprisonment in
prisons are leading an isolated life thus incapacitating them from committing the
crime again fulfils the preventive purpose of punishment. This also helps to keep
the crimes under control.

4
See, B.R. Sharma and Vandan Kashyap, Prison System in India: a Historical Retrospection, CMLJ, 136,
Vol. 30, April-June, (1994).
 As early as in 1597, jails were established. The jails of old times were miserable
places, which afforded opportunities for graduation to a life of crime. Recidivism
was rampant. Men, women and children, first offenders and habitual were all
hurled together like “rats in a damper and pigs in asty”. 5 Prisons in the modern
sense of the term were unknown in medieval times; a person could be
incarcerated while the trial was pending. It was in the 18th century that cellular
prisons were built.

The prisons in India were in a terrible condition when the East India Company
took over some of the provinces of India. During the period preceding the British
rule, the prisoners were ill-treated, tortured and subjected to barbarous treatment.
However, with the advent of the British rule, some serious efforts to improve the
conditions of prison and prisoners were initiated. Many Committees were
appointed from time to time to look into the system of prison management and
suggest measures to eradicate evils which were existing there. It was the result of
these recommendations by the Committees that better amenities to the various
kinds of jail inmates were extended and the number of prisoners which could be
accommodated in each of the existing jails was also prescribed. 6 The Committee
for jail reforms headed by Justice A.N. Mulla which gave suggestions on various
aspects of jail administrations including those relating to the modernization of
jails and segregation of young prisoners from the hardened criminals.

The original idea of transferring criminals to prison is to change them in honest

and law-abiding civilians by implanting in them a dislike for crime and
criminality. Although in actual practice, the prison officials attempt to bring out
the reformation of prisoners by use of violence and compulsive ways.
Consequently, the change in inmates is temporary and lasts only till the period
they are in prison and as soon as they are released they quite often return to the

5
M.J. SETHNA, SOCIETY AND THE CRIMINAL 303 (5th Ed. 1989).
6
See, Vijay K. Jindal, Punjab Jail Mannual, (1966), p. 1.
 criminal world.7 It is for this reason that modern trend is to lay greater emphasis
on psychiatric conditions of the prisoners so that they can be rehabilitated to
normal life in the community. This objective can be successfully achieved
through the techniques of probation and parole.

Imprisonments were usually made for:

1. Disabling the offender from being a danger to society, by locking him up.

2. Preventing prospective offenders by the threat of long term lock-up and

3. Reforming the offenders under healthy and transforming conditions.

It has been realized that imprisonment in order to be an effective reformation

method of dealing with offenders, must be long term imprisonment or
imprisonment for at least a sufficient time, so as to give the prison official
sufficient opportunities of successfully dealing with the offender for his re-
education and rehabilitation.8

Short-term sentences are considered worse as they do not have any correctional
value. Moreover, short term sentence may lead to congestion in prison and thus
expose the offender to the danger of contamination in prison by letting him come
into contact with hard and rough offenders. It is now felt that short term
imprisonment may be substituted by fine or by releasing the offender on probation
under the advice of the probation officer.9

It has been suggested that treatment and rehabilitation-oriented punishments

should be encouraged by abolishing the short term imprisonment. However, it is
to be noted that in India event today we short-term imprisonment.

7
See, supra note 4.
8
See, supra note 3.
9
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY, (2002).
34
 The Supreme Court in a number of cases has taken serious consideration over the
prison brutalities and has denounced such practices. Custodial violence is very
prevalent in the Indian correctional system and the courts have always worked
towards minimizing such brutality and punishing the perpetrators.

In Sunil Batra v. Delhi Administration 10, the constitution bench of the Supreme
Court brushed aside its attitude of passiveness towards prison administration.

In Rakesh Kaushik v. B.L. Vig, Superintendent Central Jail, New Delhi11, the
petitioner alleged that his life in jail was subjected to intimidation, by over-
bearing ‘toughs’ that he was forced to be a party to misappropriation of jail funds
by bribery of officers, that homosexual and sexual indulgence with the
connivance of officials were going on, that smuggling in and out was frequent that
drug racket was common, that alcoholic and violent misconduct by gangs like
those involved in bank robbery and other notorious cases were a menace to
prisoners and that the reformation of prisoners was defeated by such super crime
syndrome. The court, in the light of these allegations, observed:

The Supreme Court in respect of the influence of the prison community remarked
that the campus of correction had degenerated into a human zoo. The court
admitted that the Tihar jail had come up for unhappy judicial notice too often in
the past. The court further stressed upon the betterment of the prisoners. It also
stressed upon the restoration and rehabilitation of the prisoner upon release.

4.2.2. OPEN PRISONS

Some prisoners need to be carefully handled so as to bring them back to the

mainstream as they are occasional prisoners or criminals who would definitely
wish to improve. The provision of open prisons is a method in which his plight is
understood and a chance is provided to the prisoners to be able to come back to
the mainstream. The open prisons have been present in some of the other forms in

10
AIR 1978 SC 1675.
11
AIR 1981 SC 1767.
 India for a long time. In India, there are 26 open prisons. These are prisons that
have no wall, i.e. no strict restrictions yet they are punished and mad to repent for
their wrongdoings and the realization with the sense of freedom is the best form
of repention. This is the best way of reform.12

The prisoners who are sentenced with life imprisonment and only those who have
good conduct and show signs of improvement and desire to be reformed and
rehabilitation are selected for being sent to these prisons and are shifted to these
prisons. While some states of India, different actions for open prisons have been
exercised. The objective behind these open prisons is that ‘they are jails yet not
jails’. The person is under custody but has a free mind and body. This helps to
bring back the dignity of the individual and give a sense of self-confidence, self-
respect, self-reliance and sense of responsibility in the individual so as to
eliminate crime.13 Therefore, there is an elimination of crime and not the criminal.
The several States in India have such open prisons. The positive effects of open
prisons are:

1. It minimizes the ill effect of crime on the offender and the society at large.

2. It reduces the overcrowding in prisons and maintains the humane conditions of

life in the prisons.

3. It is cost effective and more reasonable than holding the prisoners in the state
jails.

4. This helps to restore the dignity of the individual and give a sense of self-
confidence, self-respect, self-reliance and sense of responsibility. It helps to create
social awareness and moral upliftment of the individual so as to eliminate crime.

This concept needs more development and publicity. With the modern penal view
of reform and rehabilitation, such prisons are ideal for achieving the goal. These

12
See, supra note 9.
13
See, supra note 4.
36
 open prisons should encourage apart from agriculture work, industrial,
manufacturing, IT, etc. Women open prisons should also be supported. The
prisoners in the open prisons can be an active part of the new policy of Sh.
Narendra Modi of ‘Make in India’.

4.2.3. FINE

Fine as an alternative to short term imprisonment is a treatment measure, but as a

source of the state treasury, it is an ad judicious form of punishment. It should be
assessed according to the means of the offender. Whenever the maximum or
minimum limits are fixed, within the country may adjust the amount of the means
of the offender, these should be revised according to the changed conditions so
that fines fixed retain their original values.14

A fine is a pecuniary penalty imposed upon a person convicted of a crime. The

imposition of financial penalty in the form of a fine of forfeiture of property has
been a common method of punishment since a long time in Western as well as
Eastern civilization.

At first, Criminals were not fined by the court, but in some cases, they were
permitted to pay a certain sum as a substitute for the penalty imposed. This meant,
in effect, ‘that the offender made an end, finem facere to his imprisonment.’15

4.2.4. PARDON

Since offences are committed against the state, the Indian law does not permit the
victim to grant pardons. The power to grant a pardon or executive clemency is
vested to the Head of the State i.e. the President of India or Governor of the State.
In addition to this, State Governments can also commute the sentence for all
categories of prisoners in commemoration of certain special events, i.e. the
shortening the period of imprisonment of convicted prisoners, thereby reducing

14
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY (2002).
15
Ibid.
37
 the prison population. The pardoning power can be exercised before, during or
after trial.16

4.2.5. SUSPENSION, REMISSION AND COMMUTATION OF

SENTENCES

4.2.5.1. SUSPENSION OR REMISSION OF SENTENCES

Apart from the power vested in the President and the Governor by the constitution
of India to suspend, remit or commute any sentence, section 432 of CrPC
empowers the appropriate government to suspend, remit sentence, High court
cannot exercise this power17 as follows:

1. After a person has been sentenced to punishment the Appropriate Government

on the application may at that time with or without condition suspend the
execution of a sentence or remit the whole or part of the punishment.
2. The Appropriate Government on receiving such application shall require the
court to state its opinion with reasons as to whether the application should be
granted or not.
3. The Appropriate Government may either grant or cancel such suspension or
remission.
4. Certain conditions may be laid down by the Appropriate Government before
giving such considerations.

4.2.5.2. COMMUTATION OF SENTENCE

This means some other punishment in place of the one given by the court of law.
This usually for lessening the severity of the punishment. The Appropriate
Government may with or without the consent of the person sentence commute18,
a. A sentence of death for any other punishment provided by IPC.
b. A sentence of Life imprisonment for a term not exceeding 14 years or for fine.
16
K.M. Nanavati v. Sate of Bombay, AIR 1961 SC 112.
17
K. Pandurangan v. SSR Velusamy, (2003) 11 ILD 306 (SC).
18
Sate (Govt. of NCT Delhi) v. Prem Raj, (2003) 9 ILD 359 (SC).
38
 c. A sentence of rigorous imprisonment for simple imprisonment for any term to
which that person might have been sentenced o for fine.
d. A sentence of simple imprisonment for fine.

4.2.6. FURLOUGH

The dictionary meaning of furlough is “leave of absence from prison granted to a

prisoner”. It is a temporary release mechanism in which the prisoner is released
temporarily and severe their sentence outside the prison for a given period of time
and them return back to sever the remaining sentence. These include work release
and furlough or leave. In India, furlough is granted as leave to a prisoner to visit
his family for a short period which counts towards his sentence, after he
undergoes a certain period of sentence. The difference between parole and
furlough is that parole is a suspension of the sentence while furlough is treated as
part of the sentence. Several states grant furlough for good conduct to prisoners
not implicated in heinous offences.19

It must be noted that parole is different from a “furlough”. While parole is

awarded to a prisoner confined for any offence irrespective of the term of
imprisonment, a furlough is only allowed to prisoners standing long sentences,
five years or more.

Undoubtedly, parole and furlough are parts of the penal and prison system and are
alternatives to imprisonment but both have some differences.

1. Furlough is a matter of right but parole is not. Furlough is to be granted to the

prisoner periodically irrespective of any particular reason merely to enable him to
retain family and social ties and avoid ill-effects of continuous prison life. The
duration of furlough is interpreted as remission of sentence.20

19
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, Vol. 2
(1999).
20
Ibid.
39
 2. Parole, on the other hand, is not a matter of right and may be denied to a
prisoner even when he makes out sufficient case for release on parole if the
accountable authority is satisfied on substantial grounds that discharge of a
prisoner on parole would be opposite the matter of society or the prison
administration.21

Referring to the provision of Section 59 of the Prison Act (9 of 1894) and Rules 4
and 6 of the Prison (Bombay Furlough and Parole) Rules, 1959, the Supreme
Court once again brought out the distinction between furlough and parole in the
State of Maharashtra and another v. Suresh Pandurang Darvekar.22

The court, in this case, held that the underlying object of the rules relating to
‘parole’ and ‘furlough’ are mentioned in the All India Jail Committee’s Report
and the Model Prison Manual. These two have two different purposes. It is not
mandatory to state causes while discharging the prisoner on furlough but in the
matter of parole, reasons have to be intimated. Over, release on furlough cannot
be stated to be an inalienable right of the prisoner.

It is provided periodically following the rules irrespective of any special reason

simply with a view to allowing the prisoner to have a family connection and retain
up the family and social ties and bypass ill-effect of consecutive prison life. It is
operated as a time spent in prison. But as opposite this, the time spent on parole is
not calculated as remission of sentence. Because the furlough is given for no
special reason, it can be discarded in the interest of society, whereas parole is to
be given only on adequate cause being shown.

Furlough is temporary leaves that are granted to the inmates who may suddenly
have the need to meet his family in situations like a severe family crisis, illness,
death, etc. this leave is granted under special circumstances.

21
See, supra note 19.
22
AIR 1999 (9) SC 513.
40
 In Maganbhai Prasangbhai v.The State of Gujrat,23 the Gujarat High Court has
held that although furlough can be granted to the prisoners it is not an absolute
right of the prisoner rather it is a conditional right.

It has been held that furlough can also be cancelled or rejected. In Koyabhai v.
The State of Gujarat,24 it has been held that the court could reject the application
of furlough if there was a breach in the bail provisions and then the convict was
caught.

In Motisingh Kesar Singh v. The State of Gujrat,25it has been held that if the
prisoner wants to claim any sympathy on humanitarian grounds, before so desire
he will have to qualify himself to deserve it by his conduct and behaviour in and
outside the jail. This totally depends upon the prisoner and not the prison
authorities.

The courts have also held that breach in the conditions of the furlough or parole
falls in the category of prison offences and in such cases, the Superintendent of
Prison is empowered to punish such offence imposing various punishments
mentioned in the act. However, the Superintendent has to follow the principles of
natural justice before imposing such imprisonment and has to give reasons for the
same. Conditions for granting Furlough:

1. The prisoner with a prison sentence of more than one year but less than five
years may be released on furlough for a period of two weeks at a time for
every year of actual imprisonment undergone.
2. A prisoner with a prison sentence of more than five years may be released on
furlough for a period of two weeks at a time for every two years of actual
imprisonment undergone.

23
24
AIR 1994 (2) GLR 977: 1994 (2) GCD 201.
AIR 2000 Cr.L.J. 664.
25
AIR 1994 (1) GCD 822.
41
 3. A prisoner with a prison sentence of more the five years but not to life
imprisonment can be released on furlough every year instead of every two
years during the last five years of his unexpired sentence.
4. However, a prisoner sentenced to life imprisonment can be released on
furlough every year instead of two years after he completed seven years of
actual imprisonment.
5. The period of two weeks can be extended to three weeks also if the prisoner is
going out of state to spend his furlough.
6. The prisoner demanding furlough has to give a personal bond of the required
amount.

However, the following prisoner cannot be granted furlough:

1. Habitual offenders.
2. Prisoners convicted under Section 392 and 402 IPC.
3. Prisoners that show a tendency towards crime as per the Superintendent.
4. Political offenders who are convicted of violence against person and property.
5. Escaped prisoners, in this case, the prisoner cannot be granted furlough within
six months of his return.

4.2.7. OBSERVATION HOMES

The Observation homes may be established or maintained by State Government

either by itself or following an agreement with voluntary associations. The
observation homes may be in each district or a group of districts essentially may
be needed for the provisional reception of any juvenile in conflict with the law
through the pendency of any inquiry concerning them.26

The State Government may render for the administration of observation homes,
including the measures and various types of assistance to be given by them for

26
N.K. CHAKRABARTI, JUVENILE JUSTICE: IN THE ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL
CORRECTION, Vol. 4 (1999).
 rehabilitation and social assimilation of a juvenile also the certification of an
observation home may be awarded or withdrawn.27 All juvenile who is not put
under the care of a parent or guardian and is transferred to an observation home
shall be originally kept in a reception section of the observation home during
preliminary inquiries.

Care and classification of the juvenile are done according to his/her age group
such as seven to twelve years, twelve to sixteen years and sixteen to eighteen
years giving due consideration to physical and mental status and degree offence
committed.28

4.2.8. SPECIAL HOMES

The Special homes may be established or maintained by State Government either

by itself or following an agreement with voluntary associations. The special
homes may be in each district or a group of districts essentially may be needed for
the reception and rehabilitation of any juvenile in conflict with the law. Wherever
the State Government is of a belief that any organisation other than a special
home established or maintained, is appropriate for the reception of juvenile in
conflict with the law to be sent there, it may certify such institution as a special
home.29

The State Government may provide for the management of special homes,
including the standards and various types of services to be provided by them
which are necessary for the socialisation of a juvenile and the situations under
which and the way in which the certification of a special home may be given or
withdrawn. The rules may further be presented for the division and separation of

27
Section 8(3) of Juvenile Justice (Care and Protection of Children) Act, 2000.
28
Section 8(4) of Juvenile Justice (Care and Protection of Children) Act, 2000.
29
See, supra note 26.
 the juvenile in conflict with the law on the base of age and the nature of offences
perpetrated by them including his mental and physical status.30

4.2.9. CHILDRENS HOME

Any child in need of care and protection may be produced before the Child
Welfare Committee31 by one of the following persons:
(i) Any Police officer or special juvenile police unit or a designated police officer;
(ii)Any public servant;
(iii)Childline, a registered voluntary organization or by such other voluntary
organization or an agency as may be recognized by the State Government;
(iv)Any social worker or a public-spirited citizen authorized by the State
Government; or
(v) By child himself.

The rules may be provided by the State Government for the way of making the
report to the police and to the Committee and the mode of sending and
committing the child to children’s home pending the inquiry. 32 The Committee or
any police officer or special juvenile police unit or the designated police officer
shall hold an inquiry, may pass an order to send the child to the children’s home
for the speedy inquiry by a social worker or child welfare officer. The manner and
the committee, on its own or on the report from any person.33

The inquiry shall be completed in four months of the release of the order or within
such smaller period as may be determined by the Committee: Given that the time
for the submission of the inquiry report may be increased by such period as the
committee may having considered to the circumstances and for the reasons
reported in writing, prepare. After the completion of the inquiry, if the committee
is of the opinion that the said child has no family or ostensible support, it may

30
31
Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2000.
Established under section 29(1) of Juvenile Justice (Care and Protection of Children) Act, 2000.
32
Section 32 of Juvenile Justice (Care and Protection of Children) Act, 2000.
33
See, supra note 26.
 allow the child to stay in the children’s home or shelter home till proper
rehabilitation is decided for him or till he attains the age of eighteen years.34

The Children's Home may be established plus maintained either by itself or in

association with the voluntary organizations by the State Government. These
homes may be in every district or group of districts as the case may be for the
reception of child in need of care and protection during the pendency of an
inquiry and consequently for their care, treatment, education, training,
improvement and rehabilitation.

Under the Juvenile Justice (Care and Protection) Act, 2000 the State Government
may by rules made under the act provide for the management of children’s home
including the measures and the type of services to be rendered by them and the
situations under which and the way in which the certification of a children’s home
or identification to a voluntary organization may be given or withdrawn.35 An
inspection committee may be appointed by the State Government for the
children’s home for the State, a district and city, as the case may be for such
period and for such purposes as may be prescribed.

The rehabilitation and social reintegration of a child shall begin during the stay of
the child in a children’s home or special home and the rehabilitation and social
integration of children shall be carried out alternatively by:36

1. Adoption,
2. Foster care,
3. Sponsorship and
4. Sending the child to an aftercare organization.
In order to ensure effective linkage between various governmental, non-
governmental, corporate and other community agencies for helping the

34
35
Section 33 of Juvenile Justice (Care and Protection of Children) Act, 2000.
Section 34 of Juvenile Justice (Care and Protection of Children) Act, 2000.
36Section 40 of Juvenile Justice (Care and Protection of Children) Act,
2000.
45
 rehabilitation and social reintegration of the child, the State Government may
make rules.37

4.2.10. AFTERCARE OF RELEASED PRISONERS

Aftercare of released prisoners is one of the most effective means to curb

recidivism. An offender quickly after release from prison has to face with a lot of
social and personal difficulties, such as the end of family contacts, lack of proper
employment opportunities, the social stigma of a prison sentence and so on. It is
for a solution of these serious problems that a discharged offender’s needs
community sympathy, help and care, without which he will in all probability, find
no other alternative but to resort to crime. Absence of aftercare, therefore, gives
rise to recidivism.

According to the Model Prison Manual, “After-care is the rehabilitation of the

released persons”. The objects of aftercare service, as stated in the model prison
Manual are:

a. To extend help, guidance, counselling, support and protection to all released

prisoners whenever necessary,

b. To help a released person to overcome his mental, social and economic

difficulties,

c. To help in the removal of any social stigma that may attach to the inmate or his
family because of incarceration,

d. To impress upon the individual the need to adjust his habits, attitudes,
approaches and value schemes on a national appreciation of social responsibilities
and obligations and also of requirements of community living, i.e. to help the
individual to make smooth physical, mental, social and vocational adjustments

37
Section 45 of Juvenile Justice (Care and Protection of Children) Act, 2000.
46
 with his post-release environmental including his family, neighborhood,
workgroup and community and

e. To assist the individual in functioning as a self-dependent and self-restraint

socially useful citizen and in the process of his ultimate social rehabilitation.

A person after completing his sentence is released from the correctional

institution has to be settled in the society and at this time he is in need of help and
support from the society. The aftercare services help such people to rehabilitate
and reintegrate in society.

Aftercare means to ‘take care of the ex-prisoners, after the release from
correctional institutions so that he does not repeat the crime’. This is necessary
both for the prisoner and the society. The objective behind such Aftercare services
is to socially and professionally rehabilitate the ex-prisoners so that they can be
made more self-restraint, honest and fit to live a free life.

According to a report by the Uttar Pradesh government, “The main aim of

aftercare services, therefore, is to reconstruct and restore institutionalized persons
to social positions of self-respect and also to enable them in settling down as law-
abiding citizen in the community.38

According to Jail Manual, the aftercare services should be extended to all needy
people released from prisons. At least five years of prison time is essential for
availing such services. These services should be provided under the following
phases:

a. While the individual is under institutional care and treatment.

b. Immediately after the release from the institution,’

c. Post-release period.

38
Government of Uttar Pradesh, Report of the United Provinces Jail Reforms Committee (1946), p 54.
47
Correctional services and aftercare services should work in close association.
However, despite the usefulness of after-care service, there has been very little
progress in this major area of correctional activities in India. Some separate
efforts to render a part of his service to the released offenders have, however,
been made in some of the states. The courts have played an important role in the
development of aftercare services and correctional services in India.

These organizations are also meant for the juvenile's discharge from the children’s
home and special homes. The aim of the aftercare organization is to assist in the
rehabilitation plus resettlement of children by extensive educational and
vocational training amenities including job placement. The stay in aftercare
organization is restricted to a maximum of three tears over seventeen years till
he/she attains the age of twenty years on the basis of discharge report prepared by
the competent authority.

In community services, the offenders must be given personal time to perform

tasks that are valued in the community. These programmes are specially meant for
juvenile and adolescents who are placed in a community service organization.

In a work release programme, the inmates are released from incarceration to

work. They enable the offender to engage in positive contacts with the
community, assuming of course that work placement is satisfactory. They permit
the offender to provide some support for themselves and their families. This can
eliminate the self-concept of failure that may be the result of the loss of the
supportive role.

These are community-based correctional programmes that help in the

reintegration of offenders. Community-based correction is an effective method of
accomplishing the changes in the behaviour of the offender by helping them to
become a law-abiding citizen.
 4.2.11. PROBATION

In criminal justice system ‘probation’ means the conditional suspension of

imposition of a sentence by the court, in selected cases, especially of young
offenders, who are not sent to prison but are released on probation, on agreeing to
abide by certain conditions. Word ‘probation’ is derived from the Latin word
‘Probera’ which means ‘to test’ or ‘to prove’. Homer S. Cunings has observed
that probation is a matter of discipline and treatment. If the probationers are
carefully chosen and supervision work is performed with intelligence and
understanding one can work miracles in the rehabilitation of the offenders.39

Probation is a form of the criminal sanction imposed by a court upon an offender,

nearly always after a verdict or a plea of guilty but without the prior imposition of
a term of imprisonment. Probation may be linked to a jail term, knows as a split
sentence, whereby the judge sentences the offender to a specified jail term to be
followed by a specified period on the release of probation.40

An international definition of probation is that it consists of “the conditional

suspension of punishment while the offender is placed under the personal
41
supervision and is given individual guidance or treatment.” The object of
probation is the protection of society by preventing the crime through
rehabilitation of the offender in the society as its useful member without curbing
his freedom, subjecting him to unsavoury prison life and depriving him of his
social and economic obligations.42

The Probation system is not the outcome of any deliberate legislative or judicial
action but grew gradually as a result of some kind of hearted ordinary citizen’s
concern for the young offender in custody.43 The history of probation can be

39
See, Harudaya Ballav Das, A Study on the Prospect of Reformative Criminal Justice with Special
Reference to Probation of Offenders Act and Law Relating to Victimology, Cr.L.J., June, 1991, p. 66.
40
SANFORD H. KADISH, ENCYCLOPEDIA OF CRIME AND JUSTICE, 1240 (1983).
41
J.C. MCCLEN AND J.C. WOOD, CRIMINAL JUSTICE AND TREATMENT OF OFFENDERS 158 (1960).
42
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY 52 (2002).
43
J.P.S. SIROHI, CRIMINOLOGY AND CRIMINAL ADMINISTRATION 231 (1992).
 traced back to the medieval concept of ‘benefit of clergy’ permitted clergy and
other literate to escape the severity of the criminal law. It meant the suspension of
the execution of sentence for an indefinite period as long as the delinquent
behaved well.

In India Probation is worked as an institutional arrangement for treatment of

offenders which is a necessary adjunct of the concept of crime. Probation
developed as an alternative to imprisonment especially of the short term has now
taken within its wings all the offences except those punishable with death or
imprisonment for life. The current compelling constraints of Section 361 of the
more viable method of dealings with offenders than imprisonment, because the
judge is required to record special reasons for not granting probation to all the
eligible offenders irrespective of their age.44

The first legislative effort appears in India when probation received statutory
recognition for the first time in 1898 through Section 562 of the Code of Criminal
procedure, 1898.45 Under the provision of this section, the first offender convicted
of theft, dishonest, miss-appropriation or any other offence under the Indian Penal
Code punishable with not more than 2 years, imprisonment could be released on
probation of good conduct at the discretion of the court. Later, the Children’s Act,
1908 also empowered the court to release certain offenders on probation of good
conduct.

The extent of probation law was enlarged further by the legislation enacted in
1923. Consequent upon the Indian Jail Reforms Committee’s Report (1919-1920),
the first offenders were to be treated more literally and could ever be released
unconditionally after admonition. Then the Government of India in 1931 prepared
a draft of Probation of Offenders Bill and circulates it to the provincial
government for their views. The Bill could not, however, be proceeded further

44
45
See, supra note 32, p. 898.
The Code of Criminal Procedure, 1973, Section 360.
 due to the preoccupation of the Provincial Governments.46 In 1934 Government of
India informed the local governments that there were no prospects of the central
legislation being enacted on probation and they were free to enact suitable laws
on the lines of the draft Bill.

After independence, a Probation Conference was held in Bombay in 1952. This

conference was a benchmark and initiated in the development of probation law in
India. Consequently, All India Jail Manual Committee was formed to review the
working of Indian jail and suggest measures for reform in the system.47 The
Committee also highlighted the need for a central law on probation of good
conduct so that they are reclaimed as self-reliant members of society. 48 Thus, with
a reformative bias and to ensure this concept in the arena of administration of
criminal justice, the Probation of Offender Act was enacted in 1958 in India to
provide correctional services to the offenders. In other words, it is a curative
jurisprudence in dealing with the offenders and more particularly it relates to first
offenders, where no previous conviction is proved against them. The whole object
of the Act is to prevent the conversion of youthful offenders into obdurate
criminals of matured age, in case they are sentenced to undergo substantive
imprisonment in jail.49 The provision of Probation of Offenders Act, which brings
about reform of the offenders and for their disciplined conduct and rehabilitation
and normal life in society. 50

When any person has committed any offence whose punishment is not more than
two years and the court is of view that the nature and character of the offence are

46
47
N.K. CHAKRABARTI, PROBATION SYSTEM IN THE ADMINISTRATION OF CRIMINAL JUSTICE (1999).
Ibid.
48
All India Jail Manual Committee Report (1957), Para 135.
49
See, supra note 29, p. 66.
50
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: PERCEPTION AND PERSPECTIVE Vol.
1(1999).
 of such a nature that it is reasonable to release him on probation of good
conduct.51

When any person has committed any offence whose punishment is neither death
nor life imprisonment and the court is of the opinion that the nature and character
of the offence is of such nature that it is reasonable to release him on probation of
good conduct than, any other law the court may direct him to be released on
probation after executing the bond and with certain conditions to be fulfilled when
asked upon.52

Provided that the court shall not ask to release the offender if he has not met with
all the conditions and with the condition of bond and surety and moreover if the
surety is not available at a fixed place or is outside the jurisdiction of that court,
the court cannot direct to release offender in probation. The decision regarding the
release on probation, the court shall look upon the report made by the probation
officer.

When an order is made, the court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the supervision of a probation
officer named in the order during such period, not being less than one year, as
may be specified therein and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the offender.

The court at the time of making a supervision order shall ask the offender to
furnish bond with surety and to fulfil certain conditions after the release, there
may be some additional directions also from the court regarding the residence, no
intoxication or anything that the court may determine.53

51
The Probation of Offenders Act, 1958, Sec. 3.
52
See, supra note 42.
53
Ibid., Sec. 4(4).
 The court making a supervision order shall explain to the offender terms and
conditions of the order and shall forthwith furnish one copy of the supervision
order to each of the offenders, the sureties if any and the probation officer
concerned. The court directing the release of an offender may, if it thinks fit make
at the same time a further order directing him to pay such compensation as the
court thinks reasonable for loss or injury caused to ‘any person by the commission
of the offence; and such costs of the proceeding as the court think reasonable.54

When the person below 21 years of age has committed a certain act which has the
punishment of imprisonment but not of the life sentence than the court must pay
due to regards to the nature of the offence and must release the offender on
probation but after considering the report made by the probation officer.55

Confidentiality of the report made by the probation officer must be maintained but
the court under certain conditions may communicate the report to the offender so
as to make him produce shreds of evidence in his favour.56

If it is applied by the probation officer that there is need to alter the bond so as to
preserve the interests of offender and of the public, it may be made alterations in
the bond at any time and can extend or diminish the duration but the
imprisonment shall not be more than three years from the date of the order but no
such variation and alteration can be made without giving an opportunity to heard
to the offender or his sureties.57 If any surety refused to make any alteration in the
bond than the court may ask him to enter into the fresh bond but if he does not
comply with the directions, the court can punish him accordingly. If the court
receives an application from the probation officer regarding the good behaviour of

54
55
Ibid., Sec. 5.
Ibid., Sec. 6.
56
Ibid., Sec. 7.
57
Ibid., Sec. 8(1).
 the offender and that now it is no need to monitor him then the court may
discharge all his bonds.58

If the court receives an application from the probation officer that the offender
failed to met certain conditions of his bond, it may issue a warrant of arrest or
may issue summon to him or to his sureties to show cause the reason for his
failure and then accordingly may remand him to the custody or release on bail to
appear on next date.59If the court is satisfied that after the hearing of the case the
offender is not able to fulfil conditions of the bond may sentence him for his
original offence or may impose a penalty if it continues.60

If the guilty person under the age of 21 years has received sentence from the court
where no appeal relies on, the Appellate Court or the High Court under powers of
revision may set aside such sentence and can pass sentence according to the law
but they shall not impose a greater punishment than before.61

A probation officer under the Probation of Offenders Act, 1958 shall be a person
appointed to be a probation officer by the State Government or recognized as such
by the State Government; or a person provided for this purpose by a society
recognized in this behalf by the State Government; or in a exceptional case, any
other person which the court considered it fit to act as probation officer. 62 The
probation officer would also be responsible to give a pre-sentence report to the
magistrate and also supervise the accused during the period of his probation. Both
the act and Section 360 of the code exclude the application of the code where the
act is applied63. Section 360 of the code is framed with the aim that the young
persons are not generally committed to prison because this may make them
associate with the hardcore criminals and may have the bad influence of them.

58
59
Ibid., Sec. 8(3).
Ibid., Sec. 9(2).
60
Ibid., Sec. 9(3).
61
Ibid., Sec. 11.
62
Ibid., Sec. 13(1).
63
State of Himachal Pradesh v. Lat Singh, 1990 Cr.LJ 723 (HP).
 In Jugal Kishore Prasad v. The State of Bihar,64the Supreme Court explained the
rationale of the provision:

“The main intention of this provision is to protect the youth or the first time
offenders from the bad influence of the hardcore offenders”.

In some states of India, probation is under the Department of Prisons while in

other states, it is looked after by the Department of Social welfare. There is a need
to strengthen the probation system in India and see that it is more effectively used.
Coordination with the judiciary is essential in this regard.

4.2.12. PAROLE

Parole is known as premature release of offenders after strict scrutiny of long-

term prisoners, under the rules laid down by various governments. Premature
releases from prison is conditional subject to his behaviour in society and
accepting to live under the guidance and supervision of Parole Officer. The word
‘parole’ means “a term to designate conditional release granted in a penal
institution.”65 So in the parole, part of the sentence is served and it is then that
convict is released on parole on condition of good behaviour and if he is found to
have improved and abstained from criminal conduct he gets remission of the rest
of the sentence and for sometime at least a part of the sentence.66

Thus, what is now called parole was from its start tied to the concepts of offender
reformation and indeterminacy in sentencing. Walter Clifton in 1870, (in-charge
of Irish Prison) advocated reform of the individual as a purpose of imprisonment
and moreover, urged that “tickets of leave” be given to those who showed a
change in attitude. Those released by a ticket for leave were supervised either by
police or by an Inspector of released prisons. Finally, the paroling function may
be important as ‘safety valve’ to help control the levels of the prison population in

64
65
(1972) 2 SCC 633.
See, supra note 32, p. 264.
66
Ibid.
 relation to capacities and thus to avert the dangers and costs of overcrowding. In
some jurisdictions, boards have been directed by courts to speed up parole for
some offenders so as to relieve prison crowding. In others, programmes of early
parole for selected offender have been designed with the explicit aim of avoiding
additional prison construction.67

Parole is the procedure through which prisoners are selected for release and the
service through which they have furnished guidance, control and assistance in
serving the last part of their sentence within the free community. Society has a
real interest in the release of prisoners since these individuals have been
committed for definite terms by the criminal justice system and release on parole
sometimes seems to fly in the face of the sentence that was meted out. 68 It is
therefore important that the parole system includes both a careful selection
process for those to be released as well as a workable system for supervision after
the selection is made.

In India, prison life did not emerge out of the social movements but they were the
outcomes of the worst conditions of treatment in prisons which our political
suffers faced during the prison life. They repeatedly launched protests with the
prison authorities and made all possible efforts to see that the rigours of prison life
are mitigated and the prisoners are humanely treated. In the meantime, the
reformatory movement which was gaining strength in the field of penology all
over the world also gave impetus to the cause of corrective methods of treatment
of the offenders rather than keeping them confined into the small prison cells.

Parole involves supervision as compared with other types of release from prisons,
such as discharge, conditional release, expiration of sentence and mandatory
release. Release by court order, pardon or escape, of course, do not involve parole
supervision.69 It is a function of the executive branch of government. It is based

67
See, supra note 30, pp.1249-51.
68 CHARLES, F. HEMPWILL, CRIMINAL PROCEDURE: THE ADMINISTRATION OF JUSTICE 257(1978).
69 NEIL C. CHAMELIN, VERNON B. FOX, M. WISENAND, INTRODUCTION TO CRIMINAL JUSTICE 416 (1975).

56
 on the Chief Executive’s right to commute or suspend sentences imposed by
courts. The authority to release offenders for cause and good conduct is usually
delegated to a Parole Board. Release on Parole is generally based on inmate
readiness, past conduct and prognosis for success. The prisoners sign a parole
agreement. If the agreement is violated or a new crime committed the parole may
be returned to prison following a revocation hearing.70

Each Parole Board consists of parole administrators, which are from amongst the
respectable members of society. The members of the Parole Board are assigned
the function of discharging convicted prisoners on parole after careful scrutiny.
The Parole board takes administrative decisions on paroling out prisoners and
71
while acting as such they are performing a quasi-judicial function. Another
essential function allocated to the parole personnel is to develop a case history of
parolees and aid and advise them in the process, concerning their rehabilitation.
There is additionally a set of field workers working outside the prisons. These
field personnel keep close supervision over parolees and report the cases of parole
violations to the parole authorities. Thus the parole organization consists of three
agencies, viz. the Parole Board, the case investigation and the parole supervision
all of them work in close liaison with each other.72

The system of parole serves to meet the ends of justice in two ways. Firstly, it
serves as effective punishments by itself in as much as a parolee is deterred from
reporting crimes due to the threat of his return to prison or a similar institution if
they violated parole conditions. Secondly, it serves as efficient measures of safety
and treatment reaction to crime by affording a series of safety and treatment

70 HARRY W. MORE, PRINCIPLES AND PROCEDURE IN THE ADMINISTRATION OF JUSTICE 19 (1975).

71 N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION Vol. 2
(1999).
72
Ibid.
57
 reaction to crime by affording a series of opportunities for the parolee to prepare
himself for the normal life in society.73

The parole system as a corrective measure and rehabilitative process has now,
been expanded in the form of open jails and open air camps in recent years. Open
air institutions are essentially a twentieth-century device for rehabilitating
offender to normal life in the society through an intensive after-care programme.

In various judicial decisions, different rulings have further clarified the provisions
of parole. In Sunil Fulchand Shah v. Union of India,74 it has been held that Parole
is a temporary release from custody and does not suspend the sentence or the
period of detention. However, it does provide conditional release from custody
and changes the mode of undergoing sentence.

In Dadu Tulsidas v.The State of Maharashtra, 75 the court has held that Parole is
not suspension or commutation of sentence; convict continues to be serving the
sentence despite grating parole.

In Poonam Lata v. M.L. Wadhwan,76it has been held that release on parole is part
of the reformative process. Also that it is a matter of grace and not a right.

73
74
See, supra note 36.
AIR (2000) 3 SCC 488.
75
AIR (2000) 8 SCC 437.
76
AIR 1987 SC 1383.
 CHAPTER V
CONCLUSION AND SUGGESTION

The popular quote which was delivered by the father of our nation Mahatma
Gandhi essentially “Hate the crime, not the criminal” should be the approach held
in mind in rehabilitating prisoners. The contemporary criminal punishment must
seek to correct criminals and transform their behaviour rather than merely to
penalize wrongdoers. With the passage of time, developments in the field of
criminal science brought about a radical change in the criminological thinking.
Now the individual treatment becomes a cardinal principle for the reformation of
the offenders and this new vision found its expression in the reformative theory of
punishment. As against deterrent, retributive and preventive theories the
reformativists seek to bring about a change in the attitude of the offender so as to
rehabilitate him as a law-abiding member of society.

Practically in India, the correctional setting works under a combination of four

major sub-systems and these are police, prosecution, judiciary and the
correctional services. Each sub-system is expected not only to play its own
statutory role to contribute towards the achievement of the main objective of the
Criminal Justice System as a whole but also to strengthen each other’s role in a
strenuous manner. But the ground reality shows that each of this system usually
tends to function like a system of its own and many a time works at cross
purposes with the other segment of the Criminal Justice System. India’s Criminal
Justice System has not been able to deliver on what is anticipated of it and is, in
fact, under mammoth sprain because of the problems in all the components law
enforcement, adjudication and correction and therefore the need for the reforms is
the question of the hour.

However now the time has appeared to unhitch the colonial Indian prison system
also to revise the centurion old Prison Act1894 as its old-fashioned and not in
theme with contemporary time and age wherever the reformation is needed not
 only of prisons but more of the prisoners who shall be provided with basic
fundamental rights

1
which this nation rewards to its every citizen.

A prisoner shall be transferred to prison for the execution moreover not only
being to give punishment to deprive of him from his personal liberty. The
increasing prison sentences do help in discouraging criminal behaviour but the
longer sentences are only increasing the higher rates of re-offending and there is a
possibility that when prisoners revert to their communities the problems may
inevitably multiply.2 The disciplinary punishment system should not reach this
pinnacle level like destructiveness for human beings from which the offenders can
nevermore be reformed. It is also necessary to improve the conditions of the
prisons plus to value the humanitarian requirements of prisoners so as to
guarantee that prisons do not produce hardened criminals. It is required to
rehabilitate and socializes prisoners in a way to assist the prisoners to grow a
responsible and potential citizen of society.

The facilities in the correctional institutions are less than stipulated by the
Hon’ble Judiciary and it had been often pointed out. Now both the central prisons
in the State are playing reformative roles and often conduct Vipasna and
meditation camps, which is a good sign for the reformative and rehabilitation of
the prisoners. There are some prisons which have IGNOU a distance learning
study centres, where the prisoners can pursue their study by correspondence
through this association the educational programmes’ are also running. Here it can
be suggested that these are the universities and giving education to the person has
completed his intermediate (10+2 Std.). It is found that some of the prisoners in
the state are released on parole for any examinations and if he is under trial and
wants to appear at such examination that the court is also adopting the same
principle and releasing them on bail. For such prisoners or under trial prisoners it

1
Indian Constitution Part III, 1950.
2
MAX GREENHUT, “PENAL REFORM, A COMPARATIVE STUDY”, 3.
may be useful if the Government, NGO or Education Board itself takes some
participation of the future of these students and open centres for 10 th and 12th at
least in every district jail to enable them to study further for their best.

The philosophy and institution of open prisons are less utilize in practice because
there are many of the jails which are overcrowded but both the open prisons are
always found to have fewer persons than capacity. It shows that either authority
does not have the intention to give more benefit to eligible inmates or eligible
inmates do not want to go to open prisons as they are staying near their family.
The All India Jail Reform Committee has also suggested to increase the number
of open prisons in the country but unfortunately, it does not happen. Whereas, the
methods of open prisons, open camp and open prisons permitting prisoners to live
with their families may be more fruitful because it is proved that open prisons are
the best method for the rehabilitation and reintegration together.

The aftercare services are very essential to be provided to the offenders in order to
decline in the rate of recidivism. The aftercare and rehabilitation services for the
inmates released after completion of a long term sentence from correctional
institutions are the basic elements of the reformative theory. Unfortunately, in
many places, there is no kind of aftercare or rehabilitative services for such
inmates which should compulsorily be provided to offenders there is an
immediate need to introduce these aftercare services. The aftercare services is a
service intended for a person or persons who have undergone a certain period of
‘care’ and ‘training’ within an institution. It is a facility for a person or group of
persons who have been found to be in special need by reason of a social, physical
or mental handicap it is intended to complete the process of rehabilitation of an
individual and to prevent the possibility of his relapse into a life of dependence or
custodial care. This would involve the strengthing of his moral and emotional
fibre and the removal of any stigma that may be attached to his previous
institutionalization.
 The social worker may also perform leading roles in administrative and practice
positions in correctional setting with all the law enforcing agencies to act on
rehabilitation moreover to provide and ensure social justice.

The Hon’ble Judiciary has also recognized so many rights of prisoners like the
right to life and personal liberty 3 are the most important to any human being and
while interpreting this right it has been said that “life means more than mere
animal existence.” There are another bunch of rights also which has been
recognized while interpreting fundamental rights, namely, right to live with
dignity4 falls in the ambit of right to life; right to health and medical treatment is
also part of the right to life, etc. all these rights are needed to be properly
implemented in correctional institutions so that it may help in the rehabilitation of
the offender because denial of these rights may make more deterrent it is also
creating awareness about judicial judgments and recent development in law.

3
Kharak Singh v. State of UP, AIR 1963 SC 1295.
4
DBM Patnak v. State of Andhra Pradesh, AIR 1974 SC 2092; Maneka Gandhi v. Union of India, AIR
1978 SC 597; Sunil Batra v. Delhi Administration, AIR 1978 Sc 1675.
 BIBLIOGRAPHY
BOOKS

1. CHARLES, F. HEMPWILL, CRIMINAL PROCEDURE: THE

ADMINISTRATION OF JUSTICE, GOODYEAR PUBLISHING CO., (1978).
2. COLEMAN AND CLIVE NORRIS: INTRODUCING CRIMINOLOGY,
WILLIAN, (2000).
3. DONALD R. TAFT, CRIMINOLOGY, NEW YORK: THE MACMILLAN
COMPANY, (2ND ED.1964).
4. DONALD T. SHANAHAN, THE ADMINISTRATION OF JUSTICE: AN
INTRODUCTION, HOLBROOK PRESS INC., BOSTON.
5. DR. S. N. PENDSE, OATH AND ORDEALS IN DHARAMASASTRA, M.S.
UNIVERSITY, VADONARA, (1985).
6. DR STEPHEN HURT WITZ, CRIMINOLOGY, OXFORD UNIVERSITY
PRESS, (1948).
7. EDWIN HARDIN SUTHERL, DONALD RAY CRESSEY AND DAVID F.
LUCKENBILL, PRINCIPLES OF CRIMINOLOGY, ROWMAN&
LITTLEFIELD, (11TH ED.1948).
8. GILLIN, J.L., CRIMINOLOGY AND PENOLOGY, NEY YORK D.
APPLETON CENTURY CO., (3RD ED.).
9. HARRY W. MORE, PRINCIPLES AND PROCEDURE IN THE
ADMINISTRATION OF JUSTICE, WILEY, (1975).
10. J.C. MCCLEN AND J.C. WOOD, CRIMINAL JUSTICE AND TREATMENT
OF OFFENDERS, SWEET AND MAXWELL, (1ST ED.1969).
11. J.P.S. SIROHI, CRIMINOLOGY AND CRIMINAL ADMINISTRATION,
ALLAHABAD LAW AGENCY, (1992).
12. KAMENKA& BROWN, IDEAS AND IDEOLOGIES LAW AND SOCIETY,
ST. MARTIN PRESS (1978).
13. K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY, DEEP AND DEEP
PUBLICATIONS, (2002).
14. LINNET DOLINEN-GAHAR, HANDBOOK ON INSTITUTIONAL
CORRECTION, (2013).
15. M.J. SETHNA, SOCIETY AND THE CRIMINAL, (5TH ED. 1989).
16. NEIL C. CHAMELIN, VERNON B. FOX, M. WISENAND, INTRODUCTION
TO CRIMINAL JUSTICE, PRENTICE-HALL (1975).
17. N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE:
INSTITUTIONAL CORRECTION, NEW DELHI, VOL. 2 (1999).
18. N.K. CHAKRABARTI, SOCIAL DEFENCE IN THE ADMINISTRATION OF
CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, NEW DELHI, VOL.
5(1999).
19. N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE:
PERCEPTION AND PERSPECTIVE, NEW DELHI, VOL. 1(1999)
20. N.K. CHAKRABARTI, PROBATION SYSTEM IN THE ADMINISTRATION
OF CRIMINAL JUSTICE, NEW DELHI, (1999).
21. N.K. CHAKRABARTI, JUVENILE JUSTICE: IN THE ADMINISTRATION OF
CRIMINAL JUSTICE: INSTITUTIONAL CORRECTION, NEW DELHI, VOL.
4 (1999).
22. P.D. SHARMA, POLICE AND CRIMINAL JUSTICE ADMINISTRATION IN
INDIA, NEW DELHI: UPPAL, (1985).
23. P.J. FITZGERALD, SALMOND ON JURISPRUDENCE, SWEET &
MAXWELL, (12TH ED.2016).
24. RADCLIFFE AND CROSS, THE ENGLISH LEGAL SYSTEM,
BUTTERWORTHS, (6TH ED.1977).
25. ROBERTS D. PURSLEY, INTRODUCTION TO CRIMINAL JUSTICE,
MACMILLAN AND CO., (3RD ED.1977).
26. ROBERT D HANSER, INTRODUCTION TO CORRECTIONS, SAGE
PUBLICATION INC., (3RD ED.).
27. SALMOND, JURISPRUDENCE, (12TH ED. 1966).
 28. S.P. SINGH MAKKAR, “CORRECTIONAL OBJECTIVES OF PRISON: A
CRITIQUE ON JUSTICE KRISHNA IYER’S CORRECTIONAL MEDIATION”
39 PULR 143 (1992).
29. SUNIL KANT BHATTACHARYA, PROBATION SYATEM IN INDIA: AN
APPRAISAL, MANAS PUBLICATION, (2008).
30. TAPPAN PAUL W: CRIME JUSTICE AND CORRECTION, MCGRAW – HIL
BOOK COMPANY, INC., (1960).
31. TRAVIS C. PRATT, JACINTA M. GAUET.AL., KEY IDEAS IN
CRIMINOLOGY AND CRIMINAL JUSTICE, SAGE PUBLICATIONS. INC.,
(2011).

STATUTES

1. The Constitution of India, 1950.

2. The Code of Criminal Procedure, 1986.
3. Indian Penal Code, 1860.
4. Juvenile Justice (Care and Protection of Children) Act, 2015.
5. Modern Prison Manual 2016.
6. The Children Act, 1908.
7. The Prison Rules 1999.
8. The Prisons Act, 1894.
9. The Probation of Offenders Act, 1958.

REPORT

1. All India Jail Manual Committee Report (1957), Para 135.

2. All Indian Jail Reforms Committee’s Report (1919-1920).
3. An American Report on Crime and Punishment entitled. “Struggle for Justice”
prepared by American Friends Service Committee (New York 1971), p.112.
4. Government of Uttar Pradesh, Report of the United Provinces Jail Reforms
Committee (1946), p 54.
JOURNAL ARTICLE

1. B.R. Sharma and Vandan Kashyap, Prison System in India: a Historical

Retrospection, 30 CMLJ, 136, (1994).
2. Harudaya Ballav Das, A Study on the Prospect of Reformative Criminal Justice
with Special Reference to Probation of Offenders Act and Law Relating to
Victimology, Cr.L.J.,66, (1991).
3. H.D. Mondal, Crime Victims and Their Treatment in the Administration of
Criminal Justice, 32 Central Indian Law Quarterly, (2001).
4. H.R. Khanna, Some Reflections on Criminal Justice, 17 JILI, 508, (1975).
5. Jan Looman & Jeffery Abracen, “The Risk Need Responsivity Model of Offender
Rehabilitation: Is There Really a Need for a Paradigm Shift?”, 4 International
Journal of Law and Legal Jurisprudence Studies, (2013).
6. K. Madhava, The Criminal Justice System, CBI Bulletin, 4-5, (1992).
7. Rob White, “Community Corrections and Restorative Justice”, 16 Current Issues
in Criminal Justice, 1, (2004).
8. Subhash Chandra Singh, Criminal Justice System: An Overview, Cr.L.J. 44,
(1999).

LAW REVIEW ARTICLE

1. K.I. Vibhute, Sethna’s Society and The Criminal (5th ed.), 32 Journal of Indian
Law Institute, 278-280, (1990).
2. Shivani Tomar, The Psychological effects of Incarceration on inmates: Can we
Promote Positive Emotion in inmates, 16 Delhi Psychiatry Journal, 69, 66-72,
(2013).

WEBSITE VISITED

1. http://www.austlii.edu.au/au/journals/CICrimJust/2004/11.pdf
2. https://www.academia.edu/2488086/From_Rehabilitation_to_Punishment_Ameri
can_Corrections_After_1945
3. http://marislute.files.wordpress.com/2010/07/riska-modelis-2.pdf.
4. http://www.socialresearchfoundation.com/upoadreserchpapers/5/41/15061110503
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