A Case for A National Prison Policy
By V. R. Krishna Iyar
PUCL Bulletin Nov 1981
Our Constitution is in trial our prison houses, our cultural credentials are tested behind stone walls and iron bars, our penal panaceas are in peril, what with the deterrent no return and reinvest escalation despite long incarceration. The law can not hang limp but must lash out to restore order, correct deviance and stabilize that personal integrity which is the best guarantee of behavioral normality and societal harmony. Barbarity in sentence and torture in prison are a trend, which aggravates the malady, and so self-defeating that punitive cruelty is a curative futility and preventive disutility. From a practical angle, criminologists have concluded that benumbing, long prison terms and inflictions within the walled campuses are ineffective drugs in the penological pharmacopoeia.
Therefore, a reformative philosophy rehabilitative strategy. Therapeutic prison treatment and enlivening of prisoners personality through a technology of fostering the fullness of being such a creative art of social defense and correctional process activating fundamental guarantees of prisoners rights, is the hopeful hope of national prison policy struck by the Constitution and the Court. This is my thesis but I must urge my case and establish the justice of this policy. Tersely put, the State must discover and engineer the high way to human rehabilitation and put into practice in the prison system.
At this point we may begin with the basic question: Do we have a national prison justice policy? To be honest, the Raj had a prison programme at the service of its imperial policy, but the Republic, with all its boasts and all its hopes, has no penal policy, no prison humanism, no jail justice, even though almost every Minister who was wielded power, regardless of party, has suffered incarceratory laptism. Regrettably, the judiciary has a parrot like carried over precedents of Victorian Vintage being innocent of progressive penological thought and the nexus of Constitutional values with prison praxis. Judicial illiteracy about criminology rehabilitative technology and of the Courts responsibility in purposeful sentencing projects and restorative penitentiary procedures is appalling.
On the legislative font, the less said the better. In a country where the majority of the legislatures have served a jail spell almost as a qualification for candidacy, is not surprising that the prisoners Act, 1894, confiding the repressive policy of White hall, continues "red in tooth and claw", crime Gandhi, come freedom, come constitution. The harassing and hamstringing traditions validated by Prison manuals, are preserved thoughtlessly, decades after prisoner patriots assumed power. (wearing Gandhi Cap is, under the Punjab Jail manual, a Jail office even now.) Parliamentary apathy is matched by executive insouciance. Of course, at seminars and conferences, ghost speechwriters cover up Ministers conscience with glittering inaugural exhortations and even policy formulations. And at criminological workshops, the academia's, never taken seriously by the politician, the bureaucratic, the judge and the warden who alone matter in executing prison justice.
seriously by the politician, the bureaucrat, the judge and the warden who alone matter in executing prison justice .Thus, the battle for a national policy on pri-sons and imprisonment has been lost by apathy, in-sensitivity and 'eminent' ignorance.
The people-the political swashbucklers and pro-fessional jargon-mongers apart, are unaware, doped by hopes, and are inertly irresponsive to the sentencing mystiques. If only a human transformation inside the walled world of offenders were planned and exe-cuted, through a circumsect yet intelligent project to invigorate benignly the inner man in custody, a crime-free society, why, a prison-less State may dawn in the distance, given creative courage and national vision in perspective of human values. This is not a moony ideal but largely practical, as several social scientists and sublime pragmatists claim. I know, every science has been an outcaste. I may sound un-orthodox but orthodoxy is the Bourbon of the world of thought. It learns not, neither can it forget.
Among the three alternatives, the retributive, the deterrant and the rehabilitative, modern penologists opt for the last with a sprinkling of the second. To be retributive is to claim an eye for an eye-and, logi-cally, a murder for a murder, a rape for a rape, a re-prisal barbarity for brutal burglary and so on. Sooth-ing for the sadist, heartening to the little Hitler lin-gering in many bosoms, this form of blood-thirsty justice, which still is prevalent in a few countries, has become obsolete, what with the dignity and worth of the human person receiving better recognition in civilised societies responsive to the new international legal order. Not quite dead is lex talionis, as is evident from the lively controversy about death penalty.
Don C Gibbons in his recent edition of "Society, Crime, and Criminal Careers" writes
"What purpose does the infliction of suffering on law-breakers serve? Tappan has offered on incisive summary of the purposes of punishment. He notes that punishment is designed to achieve the goal of retribution or social retaliation against the offen-der. Punishment also involves incapacitation, which prevents the violator from misbehaving during the time he is being punished. Additionally, punishment is supposed to have a deterrent effect, both on the law-breaker and on. potential misbehaviors. Indi-vidual or specific deterrence may be achieved by intimidation of the person, frightening him against further misbehavior, or it may be effected through reformation, in which the law-breaker changes his deviant sentiments. General deterrance results from the warning offered to potential criminals by the example of punishment directed at a specific wrongdoer." - - - -
The theory that savagery must be fought by sava-gery dies hard and if that philosophy holds good, judges must welcome prison torture and police third degree. Anyway, these primitive strands of thinking, decked in different apparel, are found among judicial, legislative and executive agencies. Is this our penal policy? Then, do jail the delinquent in, gouge his ey4 publicly flog him, dismember his limbs and hang him to the delectation of ghoulish crowds. Blinding Bhagalpur justice par excellence.
British justice once hanged even children for petty offences and some great judges were unhappy when some in the long list of capital sentence offences were sought to be jettisoned. "Sir Rober Peel regarded it 'as a most dangerous experiment' when stealing £5 from a dwelling-house ceased to be a capital offence. Lord Ellenborough, the Lord Chief Justice of his day, thought transportation as a punishment for stealing 5s. from a shop was a quite inadequate substitute for the death penalty, and the Solicitor-General, Sir William Garrow, argued passionately - that the Government could not exist without the protection of drawing and quartering."
England has replaced the gallows by prisons, and a macabre mix of retaliatory cruelty and deterrent confinement defiles prison management. In many countries, long terms behind bars, harsh and humiliat-ing regimen like solitary confinement and fetters all over, deprivations of basic needs to deepen the punitive thrust became the "zoological" penal policy em-bittering the culprit. Wincfred A. Elken writes -
"At the turn of the century, a government com-mittee was set up to investigate the work of the pri-sons. What impressed its members was not the deterrent value of imprisonment, but the extent to which the prisoners were brutalised and demorali-lised by their experience. The prisons were in fact breeding grounds of crime.
"The deterrent theory seems in fact to lead to an inevitable dilemma. Crime continues in spite of punishment and the logical answer is to make the punishments even more severe. Ultimately the point is reached when the demoralization produced by these punishments becomes too glaringly obvious and the administrators of justice and the public become sickened by what the law demands. Ex-perience has in fact shown that the purely repressive punishments are neither necessary nor effective."
The champions of
severity of infliction, corporal or in-prison, as possessing a deterrent potential
have, lost the battle by now, because crimes have been increasing despite heavy
penalties. A variety of re-asons renders impotent these draconian penal prescriptions,
including the venality of investigative
agencies, the judicial distance between the first charge and final guilt and the easy purchase of acquittals or light sentences, through clever lawyering
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