Whither Correction?

The authors have adapted this enumeration from the original by P. Young in his paper entitled "The Theory of the Role of Prisons in Advanced Penal System". See UNSDRI, Economic Crises and Crime, publication No. 15, Rome, May 1976, pp. 145-170.

We can take 19th Century as marking the beginning of modern penal systems.

As example of this, the erstwhile Criminal Tribes Restrictions Act can be cited from Maharashtra.

Mannheim, F.H. , The Dilemmas of Penal Reform, Routledge, 1939.

In India, where it is estimated that the annual expenditure on maintenance of prisoners (for the period 1961 to 1965) ranged from Rs. 297 to Rs. 392, and on guarding the prisoner from Rs. 187 to Rs. 227, the inflationery phenomenon is easily discerned. Of the latter category of expenditure, Rs. 203 (of Rs. 227) was spent on 'establishment' in 1965 as against Rs. 167 (of Rs. 187) in 1961. Source: Probation and Prisons: A Statistical Analysis Dept. of Social Welfare, Govt. of India, pp. 74-77.

One problem in assessing the success of the system, however is the lock of data on crime prevention. Thus, whereas crime growth rates are compiled everywhere in order to indicate changing trends in the incidence of criminality, there are no corresponding data available on the rate at which crime is prevented or precluded. Unless the latter information is available, a vital indicator for gauging the impact of the system, and its success or otherwise will be missing from any assessment of the system.

Young, P. , Op. Cit., p. 154.

A basic conceptual weakness in such legislation is the underlying assumption that law can serve as an instrument of social change. Experience everywhere exposes serious limitations in this assumption. A glaring illustration of this can be drawn from the U.S. experience of anti racial discrimination laws and the Indian experience with untouchability removal legislation.

In the social welfare field, there are some blatant and outrageous examples of passe legislation that continues to be enforced. The Indian Lunacy Act, the Indian Leprosy Act, and the Act prohibiting employment of erstwhile leprosy patients etc., illustrate the non-reformative nature of the Indian legal environment.

Examples of this are defiance of draft laws in the U.S., of the salt laws in pre-independent India which led to the fomous Dandi March, and more recently, of the spate of Emergency laws.

The discussion in this section is largely drawn from a Working Paper prepared by United Nations Secretariat entitled 'Criminal Legislation, Judicial Procedures and other forms of Social Control in the Prevention of Crime' for the Fifth U.N. Congress on the Prevention of Crime and Treatment of Offenders, Canada, Sept., 1975. This paper was an outcome of a Seminar held in Reno Nevada, U.S.A. under the chairmanship of one of the authors, S. D. Gokhale.

For greater detail, see Background Paper by D. Ramchandran , presented at the Symposium on the Role of Police convened by I. G. Police, Maharashtra under the œgis of the State Study Group (National Police Commission) Bombay, 16 July, 1978.

People's Participation in Social Defence has been dealt with by the authors in an earlier paper. See Gokhale, S.D. and Sohoni, N.K. , "People's Particilpation in the Criminal Justice Process in Developing Countries" paper presented at United Nations Seminar on Public Participation in the Criminal Justice Process held at Tata Institute, Bombay, 4-8 November, 1974.

This point is brought home equally powerfully in developed countries. In the U.S., for instance, de-segregation of schools, transportation, etc. has floundered on the rock of public resistance. Most recently, the search for equal opportunity involving protection of minority rights has faced a serious challenge from contenders of reverse discrimination. The U.S. Supreme Court has been facing very real jurisprudential dilemmas in coping with issues of race relations, protection of authorities, etc. See Regents. of the University of California Vs Bakke, a report on the U.S. Supreme Court's decision in Time Magazine, July 10, 1978, pp. 24-27.

Political commitment of this kind also needs to be supplemented with an undertaking by politicians not to abuse the System. This would necessitate provision of safeguards including measures ensuring the accountability of Police and Prisons to the public through the Legislature. The latter proposal is currently being examined by the Police Commission but its implications need to be fully thought out before setting up formal mechanisms.

See Durkheim, E. , The Rules of Sociological Method, Free Press, 1964 for detailed treatment.

See McClintock F.H. , et. al., "Unemployment, Crime and Prisons in England and Scotland" in UNSDRI, op. cit, pp. 69-76 for the views quoted in this paragraph.

See Mueller, Gerhard O. W. , "Punishment, Corrections and the Law" in Sentencing and Probation, report prepared on behalf of American Bar Association by National College of the State Judiciary , Reno, Nevada, pp. 47-67. Much of the discussion that follows is based on Mueller's analysis.

Offender Rehabilitation Law in Japan can be cited here as an exception. The object of this low is to aid rehabilitation of offenders, appropriately effectuating amnesty, providing for impartial and proper administering of parole and other pertinent provisions.

Mueller , op. cit

Not withstanding detailed provisions in some countries pertaining to remission, probation etc., the authorities seem to treat these as discretionary areas.

Despite their positive experience, however, the sentencing councils are not required by law to be set up in U.S., and this is attributed to the overall apathy of policy-makers to improve the criminal justice system.

See Law Reform Commission of Canada , "Studies on Diversion" (The Ottawa Information Canada , 1975) for detailed discussion of diversion policies and criteria.

See report on 'Rangpur Study' by Dr. Upendra Baxi of Delhi University, submitted to UNSDRI, Rome.

In the Scandinavian and several West European countries, demands have been made for the depenalization of such offences as traffic violations, libel and slander, shoplifting petty theft and non-payment of child support. The latter is a typical example of an offence that could be dealt with much better by a family court, and of an instance where everyone involved suffers either emotionally or financially when the matter is handled by the criminal justice system. In some countries, traffic violations have been transferred to administretive tribunals or agencies. In terms of the resolution of conflicts, many of the same effects might be achieved through civil or odministrative procedures such as those involving restitution or payment of damages; but more important is the fact that these procedures do not have the stigmatizing effects inherent in the criminal low.

The function of the judge in sentencing and the relationship between the judge and defendant, for instance, are different in adversary, accusatorial, inquisitorial and indigenous systems of criminal procedure.

The numbers of those imprisoned for less than six months accounts for over 90 per cent of the total population in Indian jails.

A recommendation to this effect was in fact made by the Fifth United Nations Congress on Crime Prevention and Treatment of Offenders. The Congress requested the United Nations General Assembly to provide further authority for the drafting of such a code.