The article is an edited excerpt from the Judgment of Justice Krishna Iyer
Gandhian Diagnosis of Criminality: Offenders as Patients
Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders at patients and his conception of prisons as hospitals-mental and moral-is the key to the pathology of delinquency and the therapeutic role of ‘punishment’. The whole man is a healthy man and every man is born good. Criminality is a curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall- out of the advaita of cosmic creation and the spring of correctional thought in criminology.
The Role of Law: A Future for Every Sinner
If every saint has a past, every sinner has a future, and it is the role of law to remind both of this. The Indian legal genius of old has made a healthy contribution to the world treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and dated values, ignoring empirical studies and deeper researches.
India, like every other country, has its own crime complex and dilemma of punishment. Solutions to tangled social issues do not come like the crack of down but are the product of research and study, oriented on the founding faiths of society and driving towards that transformation which is the goal of free India. Man is subject to more stresses and strains in this age than ever before, and a new class of crimes arising from restlessness of the spirit and frustration of ambitions has erupted.
White-collar crime, belongs to this disease of man’s inside. If the psychic perspective and the spiritual insight we have tried to project is valid, the police billy and the prison drill cannot ‘minister to a mind diseased nor tone down the tension, release the repression, unbend the perversion, each of which shows up as debased deviance, violent vice and behavioral turpitude.
It is a truism, often forgotten in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if hearing the mentally or morally maimed or malformed man (found guilty) is the goal, awakening the inner being, more than torturing through exterior compulsions, holds out better curative hopes.
Indian old Jurists views on Penology in comparison to Western Researchers
A holistic view of sentencing and a finer perception of the effect of imprisonment give, short shrift to draconian severity as self-defeating and fillips meditational relaxation, psychic medication and like exercises as apt to be more rewarding. Therefore, the emphasis has to be as much on man as on the system, on the inner imbalance as on the outer tensions.
Perhaps the time has come for Indian criminologists to rely more on Patanjali sutra as a scientific curative for crimogenic factors than on the blind jail term set out in the Penal Code and that may be why western researchers are now seeking Indian yogic ways of normalising the individual and the group.
Western jurisdiction and ‘sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817:
“The laws of England are written in blood”.
Alfieri has suggested:
‘society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that ‘Crime is the result of the lack of the right kind of education.’ It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation.
The Role of Compassion in Sentencing and Rehabilitation
Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense.
We, therefore consider a therapeutic, rather than an in ‘terrorem’ outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind.
In the words of George Bernard Shaw:
‘If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries’.
We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Stratified:
‘If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.’
In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion:
“Circuit Judge Christmas Humphreys told the BBC reporter recently that a judge looks ‘at the man in the dock in a different way: not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself.’ In the context of karuna and punishment for karma the same Judge said:
‘The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him; that is what compassion means.”[1]
In Jagmohan Singh. (AIR 1973 SC 947) this Court observed:
“The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the Court Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor for the State challenges the facts.
The Need for a Personalized and Scientific Sentencing Process
If the matter is relevant and is essential to be considered, there is nothing in the Cr. P. C. which prevents additional evidence being taken. It must however be stated that it is not the experience of criminal courts in India that the accused with a view to obtaining a reduced sentence ever offers to call additional evidence. However, it is necessary to emphasize that the Court is broadly concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under enquiry.
All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C.
The trial thus does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court……..
The Kerala High Court, in Shiva Prasad (1969 Ker. L.T. 862) had also something useful to say in this regard:
“Criminal trial in our country is largely devoted only to finding out whether the man in the dock is guilty. It is a major deficiency in the Indian system of criminal trials that the complex but important sentencing factors are not given sufficient emphasis and materials are not presented before the court to help it for a correct judgment in the proper personalised, punitive treatment suited to the offender and the crime……….
The Law Commission of India (in 47th Report) has summed up the components of a proper sentence:
“A proper sentence is a composite of many factors, including the nature of the offence, the circumstances extenuating or aggravating- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the- offender, the background of the offender with reference to education. home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the, offender, tie possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any for such a deterrent in respect to the particular type of offence involved.” (para 7.44)
All that we have said upto now emphasizes the need on the part of the judges to see that sentencing ceases to be downgraded to Cinderella status.
Reference
Mohammad Giasuddin vs State Of Andhra Pradesh (1977 AIR 1926)
[1] The Listener, November 25, 1976, p. (692)