A Case For NATIONAL PRISON POLICY

Justice V.R. Krishna Iyer

Our Constitution is on trial in 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 recidivist escalation despite long incarceration. The law cannot hang limp but must lash out to restore order, correct deviance and stabilise that personal integrity which is the best guarantee of behavioural 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 range, 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 prisoner’s personality through a technology of fostering the fullness of being such a creative art of social defense and correctional process activising fundamental guarantees of prisoner’s rights, is hopeful not of national prison policy struck by the Constitution and the Court. This is my thesis but I must argue my case and establish the justice of this policy. Tersely put, the State must discover and engineer the highway to human rehabilitation and put it 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 services of its imperial policy, but the Republic, with all its boasts and all its hopes, has no penal policy, no prison, no humanism, no jail justice, even though almost every minister who was wielded power, regardless of party, has suffered incarceratory laptism. Regrettably, the judiciary has 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 court’s responsibility in purposeful sentencing projects and restorative penitentiary procedures is appalling.

On the legislative front, the less said, the better. In a country where the majority of legislators have served a jail spell almost as a qualification for candidacy, is it not surprising that the Prisons Act, 1894, codifying the repressive policy of Whitehall, continues “red in tooth and claw”, come freedom, come Constitution. The harassing and hamstringing traditions validated by Prison Manuals, are preserved thoughtlessly, decades after prisoner patriots assumed power (wearing a Gandhi cap is, under the Punjab Jail Manual, a Jail offence even now). Parliamentary apathy is matched by executive insouciance. Of course, at seminars and conferences, ghost speechwriters cover up minister’s conscience with glittering inaugural exhortations and even policy formulations. At criminological workshops the academia’s, never taken 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 prisons and imprisonment has been lost by apathy, insensitivity and ‘eminent’ ignorance.

The people—the political swashbucklers and professional 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 executed, through a circumspect, yet intelligent project to invigorate benignly the inner man in custody, a crime-free society, why, a prisonless State may dawn in the distance, given creative courage and national vision in perspective of human values. This is not a moonly ideal but largely practical, as several social scientists and sublime pragmatists claim. I know, ever science has been an out caste. I may sound unorthodox but orthodoxy is the Bourbon of the world of thought. It learns not, neither can it forget.

Among the three alternatives, the retributive, the deterrent 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, logically, a murder for a murder, a rape for a rape, a reprisal barbarity for brutal burglary and so on. Soothing for the sadist, heartening to the little Hitler lingering 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 an incisive summary of the purposes of punishment. He notes that punishment is designed to achieve the goal of retribution or social retaliation against the offender. 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 misbehaviours. Individual or specific deterrence may be achieved by intimidation of the person, frightening him against further misbehaviour, or it may be effected through reformation in which the law-breaker changes his deviant sentiments. General deterrence 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 savagery 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 eyes, 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 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, a deterrent confinement defiles prison management. In many countries, long terms behind bars, harsh and humiliating regimen like solitary confinement and fetters all over, deprivations of basic needs to deepen the punitive thrust became the “zoological” penal policy embittering the culprit. Wincfred A. Elken writes: “At the turn of the century, a government committee was set up to investigate the work of the prisons. What impressed its members was not the deterrent value of imprisonment, but the extent to which the prisoners were brutalized and demoralised 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 demoralisation produced by these punishments becomes too glaringly obvious and the administrators of justice, and the public, become sickened by what the law demands. Experience 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 reasons render impotent these draconian penal prescriptions, including the venality of investigative agencies, the judicial distance between the first charge and final guild and the easy purchase of acquittals or light sentences, through clever lawyering, and the
non-performance of the criminal justice system which is creaking crumbling, credibility-lacking instrumentality. Even the barbarities in some of the middle-East countries become bearable, except in stray dramatic cruelties, because bribery and other pressures buy off where the law’s claws otherwise tear into the flesh. Even the stern socialist societies and their penal pharmaceuticals suffer failure, at least in part. Reams can be written, hours can be spoken, to prove the point that terror and horror, as punitive armoury, only debase justice but do not deter the culprit except marginally. Of course, society must emphatically express public denunciation for some types of crime through punishment but brutal deterrence is fiendish folly. It frightens, never refines; it wounds, never heals; it embitters him, never binds him to others; it burns the skin, never awakens the soul. It works on the animal in man but neglects the spirit within. And penal torture hardens the criminal while our objective is to socialise and redeem the individual. Radical humanism and progressive penology must gravitate towards the therapeutic processes, which heal and humanise, restore and socialise, reconcile punishment with dignity of personhood.