Written by - Sana Quayyum
Designation - Legal Intern, MediateGuru
The need for alternative approaches to Criminal Justice System (CJS) is backed by humanitarian and equitable principles which the present populace needs. CJS is predominantly understood to have 4 major approaches viz. Retributive, Deterrent, Preventive and Reformative approaches. Albeit we have adopted a Utilitarian approach which comprises of some aspects of every approach, as to say utilise best of each, making the CJS cumbersome. It becomes difficult for the judiciary in maintaining the concepts of proportionality, consistency and fairness in sentencing. This disparity in sentencing has resulted in curtailing the accomplishment of goals of sentencing.
In context to India, Section 53 of the Indian Penal Code, 1860 lays down the kinds of punishments generally imposed for offences, imprisonment being most extensively used. Being part of a colonial framework, the governance of the criminal offences and their respective punishments is governed by the philosophy of instilling fear and exercising control over the people. In the era of barbaric public rituals, the use of imprisonment became the most humane and preferred approach to punish offenders. Some might argue that imprisonment is the only punishment that can incorporate all the objectives of punishment, namely incapacitation, retribution, deterrence, rehabilitation, and correction. The disagreement on the relative weightage could be that this form of punishment needs does not uphold the importance of reintegration and rehabilitation as the primary purpose of punishment which indeed is vital for defending humanity. The Supreme Court of India had highlighted various key issues related to the prison system, including overcrowding, delay in the trial, torture and ill-treatment, neglect of health and hygiene, insubstantial food and inadequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open-air prisons which results in the violation of the human rights of prisoners.
Administrators of the CJS need to be aware that there are certain rights and freedoms which fundamental to human existence, which cannot be denied or forfeited regardless of the person being a prisoner or criminal. The overall use of imprisonment is rising throughout the world, with little evidence that its increasing use is improving public safety.
There are now more than nine million prisoners worldwide and that number is growing.[1] The reality is that the growing numbers of prisoners are leading to often severe overcrowding in prisons. This is resulting in prison conditions that breach beliefs of United Nations and other standards which require that all prisoners be treated with the respect due to their inherent dignity and value as human beings. There are several important reasons for the primary focus to be upon alternatives that reduce the number of people in prison and for imprisonment to be used only as a last resort. Since the mid-1950s, the United Nations has developed and promoted standards and norms to encourage the development of CJSs that meet fundamental human rights standards. These standards and norms represent a collective vision of how to structure a CJS. Alternatives to imprisonment may not be cruel, inhuman, or degrading but may violate human rights standards and norms if used inappropriately or improperly. Moreover, no matter what the motivation for the imposition of a particular alternative may be, it should be recognized that the offender receiving it will experience it as punitive.
The existing international framework for considering alternatives to imprisonment is restricted primarily to the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), adopted in 1986. These Rules provide for alternate, non-custodial measures as the basis for a reductionist criminal justice policy. In addition, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters become additional tools for matters related to alternatives to incarceration.
According to these international frameworks, alternatives to imprisonment include decriminalisation and diversion become methods that could be adopted to reduce imprisonment. Here decriminalisation can be apprehended as changing of law so that an act that was considered as a crime no longer continues to be a criminal act. Such decriminalisations can be explored in considerations to general exceptions related to infancy, insanity, and inevitable accidents. Decriminalisation can also be applied to those offenses that are against morality, an example could be adultery. Diversion, on the other hand, concerns with the use of other methods than processing the CJS and empowering police and prosecutors to avail the discretion on which cases needs to be considered and which needs to be ignored, for which again clear guidelines must be developed. The use of mediation and alternative dispute resolution mechanisms are also methods that could make diversion a reality. The Tokyo Rules list a wide range of dispositions which constitute Verbal sanctions; Conditional discharge; Status penalties; Economic sanctions and monetary penalties, such as fines and day-fines; Suspended or deferred sentence; Probation and judicial supervision; a community service order; Referral to an attendance centre; House arrest etc.
The world has indeed recognised the significance of alternative approaches to CJS. The current mechanism in India has only explored a very limited demesne while a few countries have reached the level of shutting down its prisons. A gradual decrease in the prison population also means budgetary allocation into other developmental activities. And the first step to catch up is to know which direction o move in. Alternative approaches to CJS can safeguard the eminent Human Rights and also save a lot of Tax-payers money by reducing the number of prisons and entailing to a better rehabilitated populace and reduced Recidivism.
[1] R. Walmsley, World Prison Population List, International Centre of Prison Studies, King’s College, London, 2005.
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