“Criminals do not die by the hands of the law. They die by the hands of other men.”[1]
In an around the period ranging from mid-sixteenth to late eighteenth century, a form of sanction was prescribed and practised in England, in the form of “branding”. This penalty, essentially, involved creating or etching of a permanent mark or a visible imprint on the body/skin of a convict by the use of hot metal, iron rods, etc.
As reported by Clive Emsley, Tim Hitchcock and Robert Shoemaker[2],
Convicts who successfully pleaded benefit of clergy, and those found guilty of manslaughter instead of murder, were branded on the thumb…. For a short time, between 1699 and January 1707, convicted thieves were branded on the cheek in order to increase the deterrent effect of the punishment, but this rendered convicts unemployable and in 1707 the practice reverted to branding on the thumb.
This form of penalty was devised as means to, inter alia, identify controlled person(s), enhance deterrence, induce a fear of sanction amongst masses, etc. Fortunately, with the passage of time and with increased societal awareness, though, this heinous form of sanction eventually extinguished, however, the practice of stigmatising and labelling a criminal by other modes, regrettably, endures till date.
The Indian courts have, time and again, reiterated that the object behind the grant of penalty or sanctions is to, inter alia, protect the legitimate interest of the members of society. In fact, as per the Supreme Court[3]:
9…. Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers.
It is, further, a settled law that it is a duty of every court to award proper sentence to a convict, having regard to the nature of the offence and the manner in which it was committed. In fact, while granting sanctions, law prescribes that the courts must be mindful of the fact that such penalties are adequate, just and proportionate with the gravity and nature of the crime. However, at the same time, the courts[4] have consistently cautioned that while awarding sanctions, “circumstances of the accused are also required to be kept in mind … as one of the objects of the criminal justice system is to rehabilitate the transgressors and the criminals”. Therefore, seen in this perspective, though, the motivating force behind grant of sanction primarily seems to be a mode of setting an example for the potential offender(s), however, while sanctioning a perpetrator of offence, the rights of rehabilitation and a possibility of acceptance of a convict, back into the society (on conclusion of such penalty) cannot be done away with. Accordingly, it is quite understandable as to why modern day penology emphasises on devising a fine balance between societal need and reintegration of a released convict. In the words of Elizabeth Fry, “Punishment is not for revenge, but to lessen crime and reform the criminal.”
Appreciating the need of rehabilitation of convicts, the United Kingdom’s Parliament, in the year 1974, enacted the Rehabilitation of Offenders Act, 1974 (“the Act”). The said Act, inter alia, aims to “rehabilitate offenders who have not been reconvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith”. The Act, essentially prescribes a specified “rehabilitation period[5]”, depending on the sentence passed, post which, an individual for the “purposes of this Act be treated as a rehabilitated person in respect of the first-mentioned conviction and that conviction shall for those purposes be treated as spent[6]”. Section 4 of the Act further, inter alia, provides that a person who has become a “rehabilitated person” in terms of the provisions thereof, “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction”. In fact, this section specifically ensures that a rehabilitated person is not required to declare their “spent conviction or any circumstances ancillary to a spent conviction” when applying for most jobs or insurance, some educational courses and housing applications, entering into agreement/arrangements, etc.
Section 9 of the Act, in fact, penalises unauthorised disclosure of spent convict. In particular sub-section (2) of Section 9 of Act provides:
9.(2) Subject to the provisions of any order made under sub-section (5) below, any person who, in the course of his official duties[7], has or at any time has had custody of or access to any official record or the information contained therein, shall be guilty of an offence if, knowing or having reasonable cause to suspect that any specified information[8] he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties, to another person.
Therefore, seen in the context and the purpose for which it was enacted, the Rehabilitation of Offenders Act, 1974 seems to be quite an effective device in wiping off the blemish of crime and assuring reintegration of a released convict. However, regrettably, a statute on similar lines is wanting in India.
Quite recently, the Supreme Court of Louisiana in State of Louisiana v. Tazin Ardell Hill (Parish of Lafayette)[9] dealt with the constitutionality of a statutory requirement that persons, “convicted of sex offences carry an identification card branded with the words ‘sex offender’.” In the said case, the Court, at the outset, noted that the said requirement to carry a branded identification card was unique to the State of Louisiana as, “Forty-one other States do not require any designation on the identification cards of sex-offenders.” The Court, in the said regard, while thoroughly considering the relevant legal provisions, by a majority of 2:1 held that the said requirement constituted, compelled speech and hence, did not survive “First Amendment[10] strict scrutiny analysis”. As per the Court[11]:
“The branded identification card is compelled speech. As a content-based regulation of speech, it must pass strict scrutiny. While the State certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded identification card requirement is unconstitutional….”
Understandably, this judgment is illustrative of the judicial approach, balancing the right of a convict with that of the State.
Indian courts have time and again, reiterated the importance of assuring basic human rights to even convicts and prisoners. In fact, the Supreme Court[12] has determinedly resolved:
“22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution.”
At the same time, the Court, acknowledging the reformative approach in criminology in the context of grant of parole, in Asfaq v. State of Rajasthan[13] observed:
“17. … The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.”
Clearly, seen in this context, the provisions of the Probation of Offenders Act, 1958[14], which are aimed[15] to, inter alia, ensure that a convict is not completely deprived of societal ties/bonds and they do not transform into a hardened criminal, are a nascent development in the field of convict reintegration. Appositely even under the Code of Criminal Procedure, 1973, provisions under Section 432 of the said Code confer a power on appropriate Government[16] to, “suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced”, in the manner as may be prescribed. Clearly, these provision, though, aim to provide a temporary respite, however, are not intended to completely extinguish the stain of past conviction on released convicts.
In the case of juvenile offenders, the Indian courts have unfailingly professed towards a compassionate and reformative approach; including at the stage of grant of sanction. In fact, the Supreme Court in Hiralal Mallick v. State of Bihar[17] had, with extreme vehemence, professed on the individualisation of criminality and court’s power to issue suitable directives, consistent with law, to suit a particular accused. The Court, terming the act of attribution of an adult intent, automatically, to infant as an ‘adult error’, observed,
“6. … When a teenager, tensed by his elders or provoked by the stone hit on the head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and motivations causatory of his crime.”[18]
Pertinently, appreciating the special needs/requirements/circumstances governing the juveniles in conflict with law, the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the JJ Act”) prescribes specific provisions regarding the rehabilitation and reintegration[19], adoption[20], etc., of juvenile(s). Under the JJ Act, Section 39[21] provides for the process of rehabilitation and social reintegration of children under the said Act, inter alia, “based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care”. Sections 43[22] and 44[23] of the JJ Act provide for open shelter and foster care, respectively, besides sponsorship by the State Government under Section 45 of the said Act[24]. Significantly, the JJ Act further makes provisions regarding inter-country adoption of an orphan or abandoned or surrendered child and inter-country relative adoption under Sections 59[25] and 60[26], respectively, thereof. Regrettably, a comprehensive legislation, which deals with the mechanism/procedure for the rehabilitation and reintegration of adult convicts, in still wanting in India.
Mr Nelson Mandela once remarked, “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.” Undoubtedly, there is no straitjacket formula that is applicable to all the persons who find themselves at the wrong side of law. Therefore, there cannot be a single and unified mechanism of reprimand for all convicts. At any case, sanctions cannot be extended to such degrees, which deprive individuals of their basic human rights. It is quite understandable that where the sanctions prescribed under law, leave no avenue for a convict to reintegrate into a society and leaves him with a permanent blemish, there is a greater probability of recurrence of crime. Therefore, the State must attempt to ensure that even the released convicts are provided sufficient and reasonable avenues to start afresh and are not pushed into gallows of darkness based on their past deeds. It must be duly taken cognizance of the fact that branding of a convict based on his past action, which may have been motivated on a momentary impulse, is quite an unfair, unreasonable and archaic approach, especially in a country which prides itself as a welfare State. As aforementioned, countries like United Kingdom and the United States of America have made provisions which provide an assurance for a fresh start by convict, wiping of the past deeds and providing a fresh slate to released convicts. Accordingly, India too may consider introducing similar provisions, over and above the existing mechanisms of parole, remission, etc.
As someone[27] once rightly remarked, “ … bars can’t build better men and misery can only break what goodness remains.” Therefore, the endeavour of every welfare State must be to make attempts to eschew any form of penalties, which brand individuals/convicts permanently and beyond all possibilities of repair. The State must further endeavour to eradicate prejudices of past conviction and to provide avenues for rehabilitation to released convicts. At the same time, it is for the society to dissuade from labelling and classifying convicts/released convicts by their preceding deeds.
* Advocate, Supreme Court and High Court(s).
[1] George Bernard Shaw.
[2] Crime and Justice – Punishment Sentences at the Old Bailey, Old Bailey Proceedings Online. (<www.oldbaileyonline.org,> version 7.0, last accessed on 8-03-2021).
[3] Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, 385.
[4] Refer to Wali Ahmed v. State of Maharashtra, 2018 SCC OnLine Bom 979, para 15.
[5] Section 5 of the Rehabilitation of Offenders Act, 1974.
[6] Section 1 of the Rehabilitation of Offenders Act, 1974.
[7]“official record” means a record kept for the purposes of its functions by any court, police force, government department, local or other public authority in Great Britain, or a record kept in Great Britain or elsewhere, for the purposes of any of Her Majesty’s forces, being in either case a record containing information about persons convicted of offences – Section 9(1) of the Rehabilitation of Offenders Act, 1974.
[8] “specified information” means information imputing that a named or otherwise identifiable rehabilitated living person/living protected person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction. — Section 9(1) of the Rehabilitation of Offenders Act, 1974.
[9] 2020-KA-00323, dated 20-10-2020 (Supreme Court of Louisiana).
[10] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
[11] Majority decision rendered by Genovese, J. and Weimer, J. Dissenting opinion rendered by Craine, J.
[12] State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712, 723.
[13] (2017) 15 SCC 55, 62.
[14] Probation of Offenders Act, 1958.
[15] The Supreme Court in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 has observed:
- This Court in Rattan Lal v. State of Punjab, (1964) 7 SCR 676, has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances.
[16] Section 432 of the Code of Criminal Procedure, 1973 –
432.(7) In this section and in Section 433, the expression “appropriate Government” means,—
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
[18] Id., 46.
[19] Ch. VII of the Juvenile Justice (Care and Protection of Children) Act, 2015.
[20] Ch. VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015.
[21] Read in conjunction with the provisions of Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which deals with the rehabilitation and reintegration services in institutions registered under the said Act and management thereof.
[27] Stuart Turton.
