This article is written by Shobhna Aggarwal, currently pursuing B.Com LLB from Banasthali Vidyapith. This article deals with the modern and ancient scope of penology.
Table of Contents
Introduction
Penology is a multi-disciplinary subject that aims for the study and evaluation of the application of penal laws onto the wrongdoers. It broadly explains the justification, characteristics, and effectiveness of punishment in its various forms. In other words, it is a systematic study of different facets of punishment and its impact on crimes, criminals, and society. As a matter of fact, penology owes its origin to Cesare Beccaria, the classical school of criminology. This Italian criminologist argued that justification of punishment must be to deter potential criminals, and not merely to punish the offender. Later, it was during the end of the 19th century that different theories of punishment were propounded focusing on the aims and objectives of the punishment.
Scope
The scope of penology is vast and hence it becomes difficult to define the same. Penology is almost seen in every aspect and type of punishment for the crimes and offences. To limit the scope we have to study basically all the aspects of penology, where all the things are explained in their wider senses.
Modern penologists lay greater emphasis on the rationalism of punishment. The penal policy should be more reformation oriented rather than coercive penal sanctions. As Lewis Gillin (1871-1958) rightly observed:
“The criminal is the product of his biological inheritance conditioned in his development by the experiences of life to which he has been exposed from early infancy up to the commission of a crime. By studying the offender in every possible way, the modern penology promises to throw light on his conditioning and arrive at a diagnosis of the factors entering into each individual case. From the standpoint of penology, it attempts to adapt the treatment of each offender in accordance with the diagnosis obtained by the scientific study of the criminal.”
Adopting a similar approach to penology, the Supreme Court in Santa Singh v. State of Punjab [1], observed that “penology regards crime and criminal as equally material when the sentence has to be awarded. It turns the focus not only on the gravity or nature of the crime but also on the criminal and seeks to personalize the punishment so that the reformist component is also many operatives as the deterrent element. A proper sentence is an amalgam of many factors such as nature of the offence, circumstances, previous record of the offender, his age, education, employment and family background, the possibility of social adjustment and reformation, etc.”
Relationship between penology and victimology
It must retreat that criminology is one of the branches of criminal science which is concerned with the social study of crimes and criminal behaviour. It aims at discovering the causes of crimes and effective measures to combat it
Penology deals with care, custody, treatment, prevention, and control of crimes as also the various modes of sentencing and rehabilitation of criminals.
The primary concern of victimology is to seek justice for victims of crime who are faced with multiple problems. It deals with the rights and claims of victims of crime and their dependents. The focus is on mitigating the sufferings of crime victims and providing them with compensatory and other reliefs.
The policies which are postulated by these three branches i.e., criminology, penology, and victimology are implemented through the agency of criminal law. Broadly, all these taken together constitute the subject-matter of criminal science.
Approach of penology
Like in criminology, penology may also be approached from various points of views. These may be denoted as Administrative Penology, Scientific Penology, Academic Penology, and Analytical Penology.
Administrative Penology
The administrative personnel employed for custodial functions in prisons ought to be capable persons conscientious of their responsibility to the society. They must be well-educated and imparted entry-level training before taking the job. Services old psychologists, social workers, and media persons should be availed for assisting the prison authorities in carrying out their correctional programmers. Prison guards and jail supervisors owe a special duty to keep the inmates under control and special vigil on prisoners who have no loyalty to the prison.
Scientific Penology
Individualization of prisoners should be the object of privatization and the effectiveness of rehabilitative techniques is essentially dependent on relaxing the custodial and disciplinary conditions keeping in view the personality needs of each inmate. The services of therapeutic specialists may be used for scientific corrective treatment of inmates in prison. The prison environment should be corrective rather than punitive.
Academic Penology
Academic penology is basically descriptive in character, and its main purpose is being the dissemination of penological knowledge. It limits itself with the theoretical knowledge of penology.
Analytical Penology
It aims at ascertaining as objectively as possible, the adequacy of existing penal policies and methods and suggests measures for improving the system. Thus, it makes a critical analysis of penal measures and offers solutions for the efficient administration of penal justice.
The basic principle underlying the modern penology is that the sentences awarded ought to be proportionate to the gravity of the offence. In operating the sentencing system, the law should adopt the corrective machinery or deterrence based on the factual matrix of the case. The nature of the crime, the manner in which it was planned and committed, the motive of the commission of a crime, the conduct of the accused, the nature of the weapons used, and all other attending circumstances are relevant facts which should be taken into consideration before sentencing the accused. The court must not keep in view the rights of the victim to the crime but also the society at large while considering this imposition of an appropriate sentence. Awarding inadequate sentences out of uncalled for sympathy for the accused would do more harm to the justice system and undermine the public confidence in the efficacy of the penal system.[5]
Caution against excessive reformation
Despite the fact that traditional methods of deterrent and retributive justice have fallen into disuse and they are now substituted by modern reformatory measures, it must be stated that excessive reformation is likely to defeat the very object of penology. If the difference between life inside and outside prison is narrowed down beyond a certain limit, it is bound to culminate into catastrophic results. The element of deterrence is as necessary for any penal program as reformation; otherwise, the very purpose of punishment will be defeated. It must be realized that the ultimate control and prevention of crime depends on the proper utilization of criminological knowledge to the needs of society.
This accounts for the emerging importance of applied criminology in recent years. The focus of attention should therefore not only be the offender or his criminal act but the interest of society in general and the rights of the victim, in particular, which must be protected at all costs. It is only then that the real objective of penology would be accomplished. A balanced penal program justifying deterrence when it is absolutely necessary and reformation as a general model of treatment of offenders would perhaps be the best policy to achieve the desired ends of criminal justice administration.
Justice must be prompt, stern, and summary inspiring a wholesome fear in the criminal. It must not be forgotten that the protection of society against crime and criminals is far more important than the personal gain of the individual offender in committing a particular crime. Therefore, it is the offender who must suffer in the larger interests of the community. Then only the real ends of penal justice can be accomplished. It must be remembered that punishment presupposes an offence and the measure of punishment must not be lesser than the offender deserves. It must be recognized that there is a strong and wide-spread demand for retribution in the sense of reprobation.
It may have retreated that the faith and philosophy behind the administration of criminal justice is the attainment of social justice and not individual justice. Therefore, a blatant shift to reformation cannot be accepted as our constitutional creed. Commenting on this aspect of penal justice, Justice Gulab Gupta, a former judge of the High Court of Madhya Pradesh pointed out “if reformation, in fact, benefits the society, the conscience of social justice would be satisfied but if the reformation accrues to the benefits of the individual alone, social justice would remain suffocated. Let this not happen even unwillingly or unknowingly.”[6]
The active participation of the people in the implementation of the correctional penal program may be helpful in exercising effective control and supervision over the offenders. Since the criminal is the product of the community is for the community to devise ways and means to solve this problem. The Nyaya Panchayat system representing community justice may perhaps play a significant role in this sphere. The Lok Adalats which are meant for quick and cheap justice may also go a long way in accomplishing the objective of social justice.[7] The statutory recognition given to Lok Adalats by the Legal Services Authorities (Amendment) Act, 2002 is indeed a progressive step in this direction.
Above all the impact of information technology and its widening dimensions have to be recognized by the legal fraternity, particularly those who are concerned with the administration of criminal justice. The courts, advocates, academicians, law teachers, and even the litigants have to acquaint themselves with the use of the developed and developing tools and technologies to meet the demands thrown up by numerous statutes and litigation explosions.
The computerization of courts, offices, law-chambers, and libraries, a listing of cases, judgments, etc. has rendered it possible to make the necessary information instantaneously available. Thus, it will greatly help in plugging the loop-holes of the existing criminal justice system and expose and destroy inefficiency, unfairness, and injustice which have crept into the administration of criminal justice. The efforts that are being made in recent years to switch over to e-courts with e-governance for e-justice would certainly go a long way in restoring the confidence of the people in the criminal justice system which lost its credibility being too expensive and dilatory. The development of ADR mechanism Lok Adalat’s plea-bargaining and setting up of the Fast- Track Courts are some of the measures which certainly help to strengthen the cause of the criminal justice system in India.
Recent development
According to the modern view, lawbreakers can be deterred by harsh penalties as a cost of breaking the law. It has been generally observed that developing countries like India focus more on penalties rather than their effective implementation. The weak implementation of laws and harsh punishments lead to a culture of public and private violence, lawlessness and impunity, as can be observed in India today.
The laws relating to social policies such as Article 377 on homosexuality or beef bans and prohibition laws, which are gaining popularity all over the country are accompanied by over-strict penalties. Even in non-prohibition states like Delhi, the possession of a few cases of beer, or a collection of more than nine bottles of single-malt whiskey, could land one to a jail term of three years. Added to the list in upholding criminal defamation under section 400/500 IPC. Defamation is essentially a civil wrong that was criminalized during the British period when duels aimed at defending honour and reputation posed a threat to public order. The need of the hour is that India should improve the delivery of speedy justice in civil defamation cases, instead of retaining criminal defamation.
Conclusion
Some penologists have suggested that punitive reaction to crime varies and fluctuates in accordance with the phase through which a particular society or nation is passing. For instance, during the periods of revolution or war, the use of death sentence, banishment, solitary confinement, confiscation of property, etc. as punishment may be extensively used, but the same may not be justified In periods of peace and tranquillity. In the Indian context with the incidence of terrorist attacks rising unabated, the death penalty for terrorists may be fully justified though it has to be used in rarest of rare cases. Similarly, the widespread corruption at all levels, particularly, among the high placed bureaucrats, politicians, corporations’, etc. fine to the tune of lakhs of rupees accompanied but the confiscation of ill-gotten wealth as a punishment would be more appropriate rather than incarceration, and perhaps, ostracization of such culprits would be more effective.
Commenting on the prevailing criminal justice system in the country, the Chief Justice of India, Justice P. Sthasivam, while speaking on the occasion of National Legal Services Day (on 6th November 2013) observed that “justice is still in a cynical phase for the common man despite efforts being made to make it accessible. Endorsing his views, Justice G.S. Singhvi in his address to the legal fraternity said that,” it is time to ponder whether in 65 years we have been able to achieve the goal to provide justice for people and whether we have created an atmosphere where everybody has equality of opportunity and status for people. According to him, “Justice was still an illusion for millions of people in the county and it is not accessible to a majority of the population.” The plight of the victims of crime needs to be on the priority list of courts and law adjudicators.
[1] (1976) 4 S.C.C 190; also see State of Karnataka v. puttaraja, (2004) 1 S.C.C 475
[2] Hart H.L.A.: Punishment and Responsibility, p. 182.
[3] Caldwell: Criminology, p. 403.
[4] Manuel Lopez Rey: ‘Analytical Penology’ published in studies in Penology (IPPF) p. 142
[5] Hazara Singh v. Raj Kumar & others, A.I.R. 2013 S.C. 3273.
[6] ‘social justice perspective of criminal justice’ by Mr Justice Gulab Gupta, central India law quarterly vol I (1987) p. 27
[7] Legal service Authority Act, 1987 (Ss. 19-22)
[8] Yajnavalkya, the great commentator on Hindu Jurisprudence, however, criticized partiality towards Brahmins in the administration of justice in ancient times.
[9] The cases of the former prime minister, Shri Narsimha Rao; former Chief Minister of Maharashtra, Shri A.R. Antulay; Bihar supremo, Lallo Prasad Yadav; Jharkhand Leader, Shri Sibu Soren; sitting M.P. from Bihar, Shri Rajesh Ranjan alias Pappu Yadav; Tantrik Chandraswamy, etc. are only a few illustrations to support this contention.
[10] Common cause (Registered Society) v. Union of India, A.I.R. 1996 S.C 3538 (Illegal allotment of petrol pumps and gas agencies by then petroleum Minister Capt. Satish Sharma).
[11] Swami Shradhanand alias Murli v. The State of Karnataka, A.I.R. 2008 S.C. 3040
[12] A.I.R. 2009 S.C. 2609
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