Author: Vishwa Shah United World School of Law, Gandhinagar
There will always be a road to fix the society, the conflicts, the relationships between people, and a destination to repair, reconciliation and restoration.
The existence of humans per se constitutes a society in itself, time to time many traditions have replaced the beliefs, attitudes and hierarchy of needs in the society. The period of the 21st Century has brought more connection and acknowledgement to people with the advancement in technology and the quest to build stronger pillars of association. When there is an establishment of society, there is a requirement for authority too, states all over the world are dominated by a governing authority to grant fair and just livelihood and the citizens are bound to obey the state to oppress the system and practice of vengeance like the earlier practices.
Law is an important pillar of the society, the absence of laws and regulations leads to a damaged society. To grant just and fair ends require the administration of appropriate punishment. With the passing of time, the theories of punishment have undergone various modifications and suggestions. The most known theories of punishment include retributive, deterrent, reformative and preventive.
Crime is a universal fact and society at large would never get away with crime, it is an inevitable condition. A society subsides without any ups and downs and learnings from the acts committed by individuals. Therefore, the imposition of punishment is an essential condition to ensure an equilibrium of civil and criminal protection to society.
According to Salmond[1], the administration of justice implies the maintenance of right within a political community by means of the physical force. It is a modern and civilized substitute for the primitive practice of private vengeance and violent self-help.
The concept of Reformative Theory for healing the current crime rate in India as well as a polishing agent to the punishment system in our country targets the basic ideology of rehabilitation of criminal offenders and also transforms the idea of punishment as a concept of transformation of a person including the behavioural aspects, the inner wellbeing as well as the outer wellbeing.
Mahatma Gandhi once quoted “Hate the sin, but not the sinner”. The criminal records all over India vary from state to state. The rate of crime and the intensity of crime differs with each offender, the habitual offenders rarely deserve or rarely follow this theory, there are also a few hard-core criminals behind the bars prevented to come back to the society and are kept inside a cell such that bringing them back to normal life or welcoming them to society might reflect a failure of the whole system of justice. Thus, this system is not proportionate to reaching the goal of reformation of every criminal but there are a few chances of transformation when inflicted and practised on certain individual offenders.
Reformative theory is supportive of the studies of Criminology, it states that any person committing the wrong or going against the state is motivated by various factors like any physiological defects, factors of social pressure, poverty, psychological breakdowns and various other factors which generally remain unturned during the course of granting justice. Therefore, Reformative Theory aims at restoring, relearning and rehabilitation of persons influenced by choices. Reformative Theory suggests patterns like community services, counselling, rehab programmes, therapy sessions and various other methods.
Focus area of the theory aims at inflicting a typical punishment which rather aims at reform of the criminal as a person and his response towards the society. Many Indian crime studies suggest that many criminal offenders committing theft, robbery or any other offences are majorly motivated by external factors or factors not in their hands or any situation of helplessness. The deeply attached roots of the crime are sometimes unknown and therefore the cause to the cause of action should also be known and moulded thoroughly to subtract the number of offences in future. According to this theory, crime is the outcome of conflicts between a man and his motive.
Ideal and law-abiding citizens and protection of the law is the desire of any state and thus the reformative theory is suggestive to bring about positive thinking in the society. Our society is already filled with various notions which bypassing of time, must be removed and rebuilt. Just like to treat a sick individual we need medication and attention, this theory states a similar format. This purpose may be achieved through various agencies of parole and probation which have been accepted as the modern technique to deal with the reformation of criminals and study their behaviour throughout the phase.
Thus the advocates of this theory justify prisonisation not only for the purpose of isolating criminals and eliminating them from the society but also to bring about a change in their mental attitude through effective measures of reformation during the term of their sentence. In Narotam Singh v. State of Punjab[2]The Supreme Court has taken the following view-
“Reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to secure social justice.”
Psychologists, physiologists and sociologists have always supported this theory with an aim to bring a change by giving proper medication, hospitalization or sending them to reformatories by sending the proper treatment to avoid its influence in the near future, sometimes torture or capital punishment makes a criminal harsher and the hope of treating the offender totally vanishes, thus the ideology of this theory aims at removing the obstacles by going to its roots.
Some of the statutes preserving the theory are the examples of Portal schools which have been set up. Provision is made for a system of probation for First Offenders. This theory is being growingly adopted in the case of Juvenile Offenders. The oldest legislation on the subject in India is the Reformatory Schools Act, 1890 which aimed at preventing the depraved and delinquent children from becoming confirmed criminals in the coming years.
The Probation of Offenders Act, 1958 has been passed with a similar object in view. About the Act, the Supreme Court observed in Rattan Lal v. State of Punjab[3] that the Act is a milestone in the progress of the modern liberal trend of reform in the field of penology.
The CRPC (Criminal Procedure Act) 1973( Section 27 & 360)[4], also provides that any offence not punishable with death or imprisonment for life appeared to be of under the age of 16 can be tried by Chief judicial Magistrate or under Children’s Act for remoulding the youthful offenders.[5]
The conclusive scope of this theory is unlimited and can be explored as well as it can also be taken into action with a positive attitude towards the jurisprudence of criminology and it can also be well understood by its application and understanding of its outcomes. Reformative theory is neither exhaustive nor limited it can be tried, assumed and also applied to any person going through the phase of penal punishment. Not all offenders are the same, some offenders require treatment and the state can brush it off aside. The amount of crime, the record of crime and the intensity of crime reflect the status quo of the society and therefore with the change in time the society is bound to reformation with the betterment of the offenders, the society and also the harmony of the state.
[1] Criminology: Crime and Criminality (1 978), p.465-466
[2] AIR 1965 SC 444
[3] AIR 1976 SC 2566
[4] Jurisdiction in the case of juveniles. Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
[5] Order to release on probation of good conduct or after admonition.