Prison and punishment

THE effort to bring about reforms in prisons is probably as old as crime and punishment. This compendium of articles and write- ups by experts fulfils a long-felt vacuum on the subject of punishment of criminals and the related issue of prison life.

The former Chief Justice of India, M. N. Venkatachaliah, has rightly pointed out in his foreword that "in India, penal sanctions were based on the avowed philosophy that the efficacy of punishment is in proportion to the severity of the feeling of terror it produces for the 'repressive' in place of the 'restitutive path'." The compilation, however, does not answer this question directly or fully. The reason is that since 1947, our administrators, politicians and thinkers have had little time for finding the time and energy to address themselves to this question, beyond establishing a Law Commission on the pattern of those in the developed countries.

As a result, the state of affairs has not progressed much beyond those obtained in Lord Macaulay's "Report of the Indian Law Commission on the Penal Code" submitted to Lord Auckland on October 14, 1837. The most likeable, informative and properly analysed article in the book is by Rajeev Dhawan, wherein he has taken pains to discuss the mentality, outlook and motive of the Macaulay Law Commission in proper perspective, giving valuable and impressive quotations from Macaulay's Report.

The Macaulay Law Commission, in an insulting manner, sidetracked the Hindu and the Mohammedan systems of law, classifying them as "foreign", and added that they "were introduced by conquerors differing in race, manners, language, and religion from the great mass of the people". That Law Commission further commented that the criminal law of the "Hindoos was long ago superseded by that of the Mohammedans".

That Law Commission did not want to exempt Indian Maharajahs and zamindars from the operation of the British Indian Criminal Law, but exempted their white brethren because it was "desirable...that our national character should stand high in the estimation of the inhabitants of India." Rajeev Dhawan has correctly remarked that India's criminal justice has "remained the same whilst the criminal law has become more wide-ranging, harsher, and with lesser procedural safeguards and heavier sentences".

To understand what it means for the common man (leaving aside the big businessmen who can wake up the Chief Justice of India at midnight and get bail for an offence under FERA, or a cinema owner who can manage to get a judge transferred so that the new judge can demand a fresh examination of the witnesses), the reader has to go straight to the narrative by Pushpa Kapila Hingorani under the title, "The Problems of the Undertrials". This social worker/lawyer, practising at the Supreme Court of India has portrayed in detail the sufferings of undertrials from Hussainara Khatoon to Gulkanrai and Ramswarup Sahni. She also moved a Public Interest Petition in the Supreme Court which was then classed as a habeas corpus petition on January 11, 1979 and the bench of Justice V. D. Tulzapurkar and Justice R. S. Pathak issued notice to the State of Bihar. The subsequent developments are history.

Kadra Pahadiya and three other kids between the age of 9 and 11 years were rotting in Bihar jails for years in Santhal Parganas since 1972 without even the Sessions Court taking up their case for hearing until 1980 when, again a social worker, Vasudha Dhagamwar wrote a poignant letter to the Supreme Court on November 28, 1980. This letter was treated as a writ petition by Justice (later Chief Justice of India) P. N. Bhagwati and for subsequent developments, the readers are referred to a write-up in the book by Mukul Mudgal. Even the Supreme Court had to remark that the shocking state of affairs in that State constitute "an affront to the dignity of man and it is surprising, indeed shocking, to the conscience of mankind that such a situation should prevail in any civilised society".

It should not be surprising that the write-ups by the women authors in this collection - be it the introduction to the subject and the conclusions by Rani Shankardass or the descriptive details of the largest jail in our country, the Tihar Jail in Delhi by Sarita Sarangi - are real eye openers for the Indian society.

Two very important points dealt with by Justice V. R. Krishna Iyer deserve special consideration. The first is custodial justice about which he suggests that the country "must have a National Authority on Custodial Justice to Women (NACJW) with powers and responsibilities, with infrastructure - horizontal and vertical - whose paramount duty is to check...dysfunctional, and...suggest new models for functional betterment". Secondly, he remarks that it is an unfortunate notion that "criminal 'lunatics' are more criminal and less 'lunatic', and therefore in the mind of the law-maker, deserve to be jailed rather than treated".

One of the more useful suggestions in this compilation is in the write-up by Vivien Stern titled "Alternatives to Prisons: Reflections and Experiences" based on experiments in Zimbabwe, under the Community Service Scheme. Quoting from Article 10 of the International Covenant on Civil and Political Rights, Stern notes, "those deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (p. 420)." Because of its initial success, the Zimbabwe Community Service Scheme has been included as a major and important portion of the article on Non-custodial Punishments by Paddinton Garwe and Andrew Msengezi as an experiment that should be emulated by other countries.

Though Rani Shankardass has not considered it possible within her treatise, which is solely about the modern times, it would have been useful to her compilation if she had included an article on punishment and prison system, as well as community service as a mode of punishment in ancient India. However, she has done a unique and pioneering service by her compilation on punishment and prison, and it would be a very useful exercise if the Union Government's Law Ministry gets the articles by Rod Morgan, Henry Brooke, Vivien Stern, Rajeev Dhawan and the compiler's own article "Women, Crime and Jail Justice", as also her conclusions, printed in a small booklet form and distributed it free to everyone in the judiciary.

K. B. PARSAI

Punishment and the Prison, Edited by Rani Shankardass, Sage Publications India Private Limited, New Delhi; Thousand Oaks, London. Rs. 550.

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