“Every saint has a past and every sinner has a future”, this observation was made by Justice Krishna Iyer in the case of Mohd. Giasuddin v. State of A.P.. This phrase beautifully summarizes the reformative theory of punishment. The reformative or the restorative theory of punishment states that the aim of the penal system of a state should be to reform the criminal and not to purely punish him.
It is the duty of the state to ensure that the offender is an able contributor to the society once he undergoes his punishment. In the case of State of Gujrat v. Hon’ble High Court of Gujrat, the Supreme Court of India observed that reformation should be the dominant objective of punishment, and during his punishment, an effort should be made to recreate the good man of a convicted prisoner. This also serves a public purpose.
All the things said so far seem to be prima facie ideal. However, the question is that is the theory of reformative justice practical? If not, if retributive justice is the correct approach? If not, how should the penal system of India proceed to determine the punishment of a criminal? The question is not only regarding the kind of punishment but also the quantum of punishment. The aim of this article is to analyze the application of this theory of punishment in India.
Reformative Theory Of Punishment
As discussed above, the reformative or the restorative theory of punishment emphasizes on reformation of the offenders through the method of individualism. According to this theory, the judge, while awarding punishment, must take into account various social factors surrounding the offender. These factors include inter alia the age of the offender, the character of the offender, the crime committed, and the circumstances under which the crime was committed. The aim of this theory is rehabilitation of the offender as a law-abiding member of the society. Thus, punishment is not regarded as an end but only as a means to the end.
The reformative theory of punishment is primarily used in the cases of juvenile delinquents, first offenders, and women.
Methods Of Achieving Reformation
There are a variety of methods which can be used to achieve reformation. These include-
Reformative Theory of Punishment In India
Mahatma Gandhi once stated that an eye for an eye will make the whole world blind. He advocated the gospel of non-violence and forgiveness. These were the principles on which India won its independence. Similar principles have also been incorporated in the legal system of India.
The courts of the country have time and again highlighted the importance of reformative theory of punishment. In the case of Gulab Singh v. Yuvraj Singh the Supreme Court refused to enhance the punishment of the offender taking into account the aim of reform of the Indian Penal System.
There are various legal provisions which indicate the dominance of reform in the punitive setup of India.
Parole means the release of an offender temporarily or permanently on the basis of good behavior of the offender. It is thus, a tool for the prison’s social rehabilitation. In the case of Budhi v. State of Rajasthan it was held that parole serves the following three purposes-
- It serves as a motivation for the offenders to mend their ways and be released early.
- It ensures that the family relations of the offender remain intact.
- It assists the offender to assimilate into the society and adapt to its folds.
Parole is governed by Prison Act, 1894 and Prisoner Act, 1900. However, each State has its own guidelines which govern the grant of parole. The Supreme Court in the case of Home Secretary (Prison) v. H. Nilofer Nisha held that issuance of remission or release of a prisoner is not a right that has been conferred on the prisoner but is a privilege that the prisoner can get if he meets specific requirements.
Probation means allowing a prisoner of some minor offence to go at large during good behavior. The person released is placed under the supervision or guardianship of a probation officer. The duty of such probation officer is to supervise the probationers assigned to him and to help him secure employment and to help him reform.
In India, probation is governed by the Probation of Offenders Act, 1958. This Act provides for the release of first-time offenders who have committed such offenses which are punishable with imprisonment of less than 2 years, such as theft (Section 379 of Indian Penal Code) or cheating (Section 420 of Indian Penal Code). This Act specifically protects those offenders of age of 21 years, from the sentence, provided the offence is not such that is punishable by life imprisonment.
“Whilst it is undoubtedly true that society has a right to lead a peaceful and fearless life, without free-roaming criminals creating havoc in the lives of ordinary peace-loving citizens. But equally strong is the foundation of reformative theory which propounds that a civilised society cannot be achieved only through punitive attitudes and vindictiveness; and that instead public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first-time offenders ought to be liberally accorded a chance to repent their past and look-forward to a bright future.”
Article 72(1) not only empowers the President to grant pardon but also to reprieve, respite or remit sentence of the offender. The power can be exercised by the President where the sentence is passed by Court Martial, under Union Laws or the sentence of death is passed.
Similarly, Article 161 empowers the Governor to pass an order to pardon, reprieve, respite, commute or remit the sentence of an offender.
Commutation of Sentence
Section 54 and Section 55 of the Indian Penal Code deals with the commutation of sentences. Section 54 provides for commutation of sentence in case of death penalty to any other punishment and Section 55 provides for commutation of sentence in case of life imprisonment to 14 years. Such commutation can be done by the Appropriate Government (Governor of the State) without the consent of the offender. The power of the Government is co-extensive to the power under Section 433 of the Criminal Procedure Code. Article 72 of the Constitution of India, 1950 also empowers the President to commute the death sentence of an offender. A Governor is also empowered under Article 161 of the Constitution of India, 1950 to commute the sentence of an offender. The difference between Article 161 and Section 54 of the Indian Penal Code is that in case of Article 161, the Governor has to seek advice from the Council of Ministers of the State. Furthermore, the power under Section 54 can be exercised suo moto by the Governor but under Article 161, the power can be exercised only on receipt of a petition regarding the same.
Juvenile Justice Act, 2015 And Reformative Theory Punishment
Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the ‘JJ Act’) was passed with an aim to protect the rights of children in lines with Article 15, Article 39(e) (f), Article 45 and Article 47 of the Constitution of India, 1950. One of the most important aspect of the Juvenile Justice Act is its philosophy of dealing with delinquent children. The aim of the act is the restoration of children and making them able members of society. The same is reflected from the fact that a child below 18 years (16 years in case of heinous crimes) who have committed an offence are referred to as delinquents and not crimes.
Principles Of The Juvenile Justice Act
The Juvenile Justice Act is primarily based upon the principles of inter alia–
- Presumption of innocence of a child below 18 years.
- Child participation in the proceeding
- Best interest of the child.
- Family responsibility
- Principle of non-stigmatizing semantics
- Principle of confidentiality
- Institutionalization as a measure of last resort
- Fresh start
Some of the major features which reflect the restorative character of the JJ Act include-
- Even if the offence committed by the child is non-bailable in nature, the Board under the JJ Act, releases the child on bail or place the child under the supervision of a probation officer.
- In case a child below the age of 16 years is found guilty of an offence, the Board under the JJ Act, let the child go home after admonition or may direct counselling or community service or fine (payable by the parents) or release of child on probation or send him to a special home for maximum 3 years. In addition to this, the Board is also empowered to order the delinquent child to attend school, vocational training, therapeutic center or de- addiction programs
- No child can be punished with life imprisonment or death.
- The object of children home under the JJ Act should be the restoration of the child.
- The JJ Act also prohibits the disclosure of the identity of the child in media in any manner whatsoever. The police shall not disclose any information with respect to the child except to the Board under the JJ Act and that too in the best interest of the child.
Thus, the Juvenile Justice Act has been enacted to ensure the restoration of a delinquent child. It indicates the reformative approach of the Indian penal system.
Reformation On Prison Administration
In the case of T.K. Gopal v. State of Karnataka, the Supreme Court recognized the need of therapeutic approach to punishment. The Supreme Court also recognized the human rights of the prisoners in this case.
In recent years, the Supreme Court of India has awarded compensation to the victims who suffered torture or negligence by the prison or jail authorities.
Criticism Of Reformative Theory Of Punishment
The reformative approach to punishment even though sounds very ideal, it suffers from a lot of drawbacks. A few drawbacks of the Reformative Theory of Punishment are as follows-
1. Not Useful In The Cases Of Habitual Offenders
The public interest demands that the habitual offenders who have a tendency to commit crime should be punished as per the prohibitive theory and not as per the reformative theory.
2. Reformative Theory Becomes Irrelevant In Cases Of Death Sentence
Where the sentence is that of death, reformative theory becomes irrelevant. This is because life and not death can reform the offender. Thus, death sentences are completely opposite to the reformative aspect of punitive system.
3. More Offender Centric Approach
The reformative theory of punishment takes an offender centric approach which is unjust to the victim in some cases. In its attempt to protect the rights of the prisoners, the courts may unconsciously violate the rights of the victim. It is a settled principle of law that justice must not only be done but must also be seen to be done. In the cases where a lenient view is taken in the light of the reformative theory, the victim might suffer again.
4. Not Practical For A Country Like India
In a country like India where poverty is one of the primary reason of crime, if the people find prisoners to be comfortable, they will want to commit petty crimes and go back to prison on the pretext of reform
Point of Conflict
It has been pointed out time and again that while it is important to rehabilitate the prisoner, the punishment should not be such that the rights of the victim to justice are infringed. Thus, there is a need of balance between the rights of the prisoner and the rights of the victim. The modern take on the punishment is that it is not merely to punish the offender but also to compensate the victim.
The system of judicial sentencing has been criticized on multiple occasions. Sometimes it is criticized to be inequitable and sometimes it has been criticized for being ineffective.
The idea of restorative or reformative justice, though ideal, cannot be regarded as the law of the land. This is because every case is decorated with its own peculiar facts. In some cases, there may be a scope of restoration but in some cases there may not be a scope of restoration. Thus, it is the judge’s discretion that will ultimately determine the punishment of the offender and the kind of approach that should be taken whole awarding such punishment. In the light of the circumstances, even after the punishment has been given, the offender is given chances to prove that he has been restored and is now eligible to be contributing member of the society. Accordingly, the Indian legal system gives them an opportunity to apply for commutation of their sentences. Even though a noble idea, restorative justice cannot be the only approach to justice and therefore must be applied cautiously, balancing the rights of both the victim and the offender.
 Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287
 (1977) 3 SCC 287
 AIR 1998 SC 3164
 Studies in Jurisprudence and Legal theory, Dr. NV Pranjape, 18th Ed., Ch12, pg 264.
 T.K. Gopal v. State of Karnataka, AIR 2000 SC 1669
 Gulab Singh v. Yuvraj Singh, 1995 Supp (4) SCC 623
 RLW 2006 (1) Raj 118.
 Criminal Appeal No. 144 of 2020.
 2020 SCC OnLine SC 791; Maru Ram v. Union of India, (1981) 1 SCC 107
 Section 14, Juvenile Justice (Care and Protection of Children) Act, 2015
 Section 18, Juvenile Justice (Care and Protection of Children) Act, 2015
 Section 21, Juvenile Justice (Care and Protection of Children) Act, 2015
 Section 40, Juvenile Justice (Care and Protection of Children) Act, 2015
 Section 74, Juvenile Justice (Care and Protection of Children) Act, 2015
 AIR 2000 SC 1669; Francis Coralie Mullin v. Administrator UT, Delhi, AIR 1981 SC 746.
 Smt Neelabati Behra v. State of Orissa, AIR 1993 SC 1960; DK Basu v. State of West Bengal, 1997 Cr LJ 743; State of UP v. Ram Sagar Yadav, AIR 1985 SC 416; Saheli v. Commr of Police, Delhi, AIR 1990 SC 513; Joginder Kumar v. State of UP, 1994 Cri LJ 1971; State of Maharashtra v. Ravikant, (1991) 2 SCC 373.
 Bishnu Deo Shaw v. State of W.B., (1979) 3 SCC 714
 Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.