H.

P NATIONAL LAW UNIVERSITY, SHIMLA

ASSIGNMENT ON PENOLOGY & VICTIMOLOGY

TOPIC :- THE CONCEPTUAL UNDERSTANDING OF

IMPRISONMENT AS A FORM OF PUNISHMENT

Submitted By :- Submitted To :-
Saksham Sharma Dr. Ruchi Sapahia
Roll No. - 1020171809 (Associate Professor of Law)
B.A LL.B, 9TH Semester

—1—
 TABLE OF CONTENTS

S.No. PARTICULARS Pg. No.

I INTRODUCTION 3
II STATEMENT OF PROBLEM 4
III RESEARCH METHODOLOGY 4
IV RESEARCH OBJECTIVE 4
V MEANING OF IMPRISONMENT 5
VI KINDS OF IMPRISONMENT 5
VII APPRAISAL OF IMPRISONMENT AS A FORM OF 6
PUNISHMENT
VIII SOCIAL BENEFITS OF IMPRISONMENT 9
IX IMPACT OF IMPRISONMENT 14
X ALTERNATIVES TO IMPRISONMENT 15
XI CONCLUSION 16

—2—
 THE CONCEPTUAL UNDERSTANDING OF IMPRISONMENT AS A FORM OF
PUNSIHMENT

“ I know not whether the laws be right, Or whether laws be wrong; All that we know
who lie in gaol is that the wall is strong; And that each day is like a year, a year whose
days or long.” - Oscar Wilde

I. INTRODUCTION

Imprisonment has always been looked down by the civilized society but the Prison
finds its roots in ancient history and associated with slavery. No one wants to go to
prison however good the prison might be. To be deprived of liberty, family life,
friends and home surroundings is a terrible thing as rightly described by Oscar Wilde.

"What constitutes imprisonment has been long ago defined. It is to be found in a work
of very good authority and the application of the common law – namely, "Termes de
la Ley" – in these words: Imprisonment is no other thing than the restraint of a man's
liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or
in a man's own house, as well as in the common gaols; and in all the places the party
so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all
times to all places1. This passage was approved by Atkin and Duke LJJ in Meering v
Grahame White Aviation Co2. It is not imprisonment to prevent a person from
proceeding along a particular way if it is possible for him to reach his intended
destination by another route.

Nowadays the power of imprisonment mostly vests in the courts and judicial systems
have been recognized worldwide for bringing home the guilt of offender and
awarding them punishment as per the law of land. Legal imprisonment is devised as
mode of punitive as well corrective method by the judicial systems evolved in the
civilized society. It is closely linked to jurist theory of Pain and pleasures 3. Apart from

1
B.R. Sharma & Vandana Kashyap, Prison System in India: a Historical Retrospection, 30 CMLJ,
136, 143, (1994)
2
 (1920) 122 LT 44
3
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: PERCEPTION AND
PERSPECTIVE 134 (1999)

—3—
other punishments awarded, imprisonment plays an important role in protecting the
community against the most dangerous offenders and in punishing the most serious
crimes. Law is continuous process and recent research and experience have shown the
many disadvantages of over using imprisonment. Imprisonment can harm the chances
of people to amend and fulfill their potential as reformed citizens. The Constitution of
India, the Universal Declaration of Human Rights and the Standard Minimum Rules
for Treatment of Prisoners clearly specify the standards of treatment with the
prisoners in jails. The purpose of imprisonment is to confine the person to dissociate
him from others and for preventing further crimes and at the same time restraint him
from spreading his criminality. But it is now felt that prisons has its own
shortcomings.

II. STATEMENT OF PROBLEM

Punishment is a penalty or infliction of pain imposed upon an individual who has
violated the laws of the country. From time immemorial the society has been
punishing the law breakers in some form or the other. A criminal is punished
primarily to ensure the safety of the society. Since the offender is not only a mere
person, but a member of a group also, the impact of imprisonment does not confine to
the punished only. It affects the offender as well as the groups to which he/she belong.
Essentially “Hate the crime, not the criminal” should be the approach held in mind in
rehabilitating prisoners. The Imprisonment must seek to correct criminals and
transform their behavior rather than merely to penalize wrongdoers.

III. RESEARCH METHODOLOGY

Doctrinal research methodology of research is used in this paper. As a researcher, my
studies are largely based on the secondary sources and the materials available from
such sources. The research is referred more descriptive information from books,
articles, journals, websites to gain more knowledge for the study about the
Imprisonment as a form of Punishment.

IV. RESEARCH OBJECTIVE

(i). Appraisal of Imprisonment as a form of punishment.
(ii). To understand the Social Benefits of Imprisonment.
(iii). Impact of Imprisonment

—4—
 V. MEANING OF IMPRISONMENT

Imprisonment is no other thing but the restraint of man’s liberty under the lawful
custody of another person. Whether a person is restrained in a open field, stocks,
cages, streets or in his own house as well as in common jail and all the places where
the person so restrained is said to be a Prisoner4.
In all the cases where the person is restrained from moving, exercising his liberty it is
known as imprisoned and the person so imprisoned is called prisoner. Prisoners don’t
have liberty to go to all the places all the time. When a person is put into a prison and
his liberty is restrained, it is called a person is in a period of imprisonment. According
to Tomlins law Dictionary “No person is to be imprisoned but as the law directs either
by command and lawful order of a court or by lawful warrant or kings writ by which
one may be lawfully detained to answer the law”

VI. KINDS OF IMPRISONMENT

1. Imprisonment for Life

Life Imprisonment means a sentence of imprisonment running throughout the
remaining period of a convict's natural life (till death). But in practice it is not so.
According to Section 55 of Indian Penal Code, in every case in which sentence of
imprisonment for life shall have been passed, the appropriate Government may,
without the consent of the offender, commute the punishment for imprisonment of
either description for a term not exceeding fourteen years. Section 57 states that in
calculating fractions of terms of punishment, imprisonment for life shall be reckoned
as equivalent to imprisonment for twenty years. In KM. Nanavati v. State of
Maharashtra5 Supreme Court held that imprisonment for life means rigorous
imprisonment for life and not simple Imprisonment.

2. Rigorous Imprisonment -
Imprisonment may be rigorous with hard labor such as digging earth, cutting wood
etc.  According to Section 60 of I.P.C in every case in which an offender is punishable
with imprisonment which may be of either description, it shall be competent to the
Court which sentences such offender to direct in the sentence that such imprisonment
shall be wholly rigorous, or that such imprisonment shall be wholly simple or that any
4
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY 52 (2002)
5
KM. Nanavati v. State of Maharashtra, AIR 1962 SC 605

—5—
part of such imprisonment shall be rigorous and the rest simple. The Indian Penal
Code  prescribes imprisonment as punishment for example Giving or fabricating false
evidence with intent to procure conviction of capital offence (Section 194)or House-
trespass in order to commit offence punishable with death (Section 449).

3. Simple Imprisonment: 
Simple imprisonment is imposed for small offences like wrongful restraint,
defamation etc.  In case of simple imprisonment the convict will not be forced to do
any hard manual labour. There are some offences which are punishable with simple
imprisonment are as follows: 1) Refusing to take oath (Section 178); 2) Defamation 
(Section 500);3) Wrongful restraint 4) Misconduct by a drunken person, etc. (Section
510)

4. Solitary Confinement 
Solitary Confinement means keeping a prisoner thoroughly isolated from any kind of
contact with the outside  A harsh and hardened convict may be confined in a separate
cell to correct his conduct. Court can award this punishment only when the offence is
punishable with rigorous imprisonment.
Solitary confinement may be imposed subject to the following restrictions :-
(a) Solitary confinement should not exceed three months of the Substantive term of
imprisonment.
(b) It cannot be awarded where imprisonment is not part of the substantive sentence.
(c) It cannot be awarded for the whole of term of imprisonment
(d) It cannot also be awarded where imprisonment is in lieu of fine.
According to Section 74 of I.P.C in no case the sentence of solitary confinement be
awarded more than fourteen days at a time and it must be imposed at intervals

VII. APPRAISAL OF IMPRISONMENT AS A FORM OF PUNISHMENT

The objective of imprisonment is to deprive the person of his liberty which is the most
serious damage which can be caused to a human being as nobody likes to give up his
freedom. In recent times the correctional ideas have introduced the changes in the
prison philosophy but even now the imprisonment remains the most common mode

—6—
reflecting the punitive approach and its fundamental character remains the same 6. In
Ancient times the imprisonment as a form of punishment existed but it was barely
used because there were several other brutal ways of punishing the offender but in
modern times there has been changes in the prison philosophy and imprisonment has
become the most common mode of punishment but since starting the fundamental
character of the imprisonment remains unchanged i.e. snatching the freedom and
Privileges of the person7.

According to Donald clamer “traditionally it was held that imprisonment should be

used only for the custody of the offenders until such time they could be conveniently
dealt with and this view was prevalent in Europe from the time of roman emperor
Justinian for the next thousand years or so. In medieval England prisons were places
where suspects were detained until the Royal judges came round on circuit with the
commission of jail delivery to empty the jail and inquire into the alleged crime.

The idea of imprisonment as a form of punishment depicts simple and penal common
form of sentencing for incapacitating the criminals. It has proved to be an efficient
method of temporary elimination of criminals 8. It serves as deterrent for society as
according to the deterrence theory the punishment should be such which serves as a
deterrent for the other persons in the society who have a tendency to commit crime or
who may commit crime in the future.
It serves as a corrective measure. When a person is imprisoned or put into a prison, it
somewhere leads to the correction of the person as when person after completing his
period of imprisonment comes back to the society he needs to be corrected and such
correction may be done through various educational programme implemented in the
prison9.

Imprisonment serves as the rehabilitative technique because the conviction of a

person of does not reduce him to a non-person and the rights of the person are
subjected to the whims of the prison administration. Some rights are restricted but
some are Fundamental rights which cannot be curtailed. These rights coupled with the

6
Ghosh.S., “Open Prisons and the Inmates”, Mittal publications, New Delhi 1992, p.1
7
P.D SHARMA.,POLICE AND CRIMINAL JUSTICE ADMINISTRATION IN INDIA, 145 (Uppal
Publishing House 1985),
8
9 ENCYCLOPEDIA BRITANNICA, 18
9
R.N. DATIR, PRISON AS A SOCIAL SYSTEM, 28 (Popular Press Prakashan, Bombay 1978)

—7—
increasing reformative and rehabilitative concerns of the modern criminal
jurisprudence provide him an opportunity to reform and rehabilitate himself and for
that reason even if an offender is sent to jail then his chances of reformation and
rehabilitation are not compromised or jeopardised. The Educational facilities and
vocational training in jails help him to rehabilitate himself. For example the open air
jails which helps them to be civilised in the imprisonment period.

It helps in reduction of crimes. Imprisonment restraints the convicted criminals for

committing the large number of crimes that they would be committing if left free and

this has been supported by the empirical data.

Article 10.3 of the International Covenant on Civil and Political Rights (ICCPR) (GA

Resolution 2200A (XXI)) states that: "The penitentiary system shall comprise
treatment of prisoners the essential aim of which shall be their reformation and social
rehabilitation". Of significance, the ICCPR is a legally binding multilateral treaty that
represents an international consensus that prisoners be treated humanely, consistent
with their inherent human dignity, and that prisons be focused on rehabilitation and
reformation rather than punishment10. Similarly, Rule 4 of the Nelson Mandela
Rules (2015) also emphasizes the significance of preparing offenders for their social
reintegration in justifying imprisonment:

1. The purposes of a sentence of imprisonment or similar measures deprivative of a

person's liberty are primarily to protect society against crime and to reduce
recidivism. Those purposes can be achieved only if the period of imprisonment is
used to ensure, so far as possible, the reintegration of such persons into society upon
release so that they can lead a law-abiding and self-supporting life.

2. To this end, prison administrations and other competent authorities should offer
education, vocational training and work, as well as other forms of assistance that are
appropriate and available, including those of a remedial, moral, spiritual, social and

10
SANFORD H. KADISH, ENCYCLOPEDIA OF CRIME AND JUSTICE, 1240 (1983).

—8—
health- and sports-based nature. All such programmes, activities and services should
be delivered in line with the individual treatment needs of prisoners.

VIII. SOCIAL BENEFITS OF IMPRISONMENT

1. RETRIBUTION

One of the oldest and most basic justifications for punishment involves the principles
of revenge and retribution. This equation of punishment with the gravity of the
offense is embedded in the Judeo–Christian tradition in the Mosaic laws of the Old
Testament that emphasize the idea of “an eye for an eye11.” The facet of retribution
has been changed in modern times as victim now can ask the law enforcing officials
to imprison the offender or to provide compensation to the victim or by providing any
other mode of punishment. For that reason the punishment to the various offences has
been provided in the Indian Penal code. Retributive theory is now not used in that
typical sense as it is only that retribution aspect to satisfy the feeling of the victim
because he has been punished so that he does not go with the suffering he has already
gone through.

The classical retributive principle of “let the punishment fit the crime” was the
primary basis for criminal sentencing practices in much of Western Europe in the
nineteenth century. This principle of punishment was subsequently modified in
neoclassical thought to recognize that some offenders who commit similar offenses
may be less blameworthy or culpable due to factors outside of their control (e.g.,
diminished capacity, mental disease or defect, immaturity) 12. Under this revised
retributive theory of just deserts, punishment should fit primarily the moral gravity of
the crime and, to a lesser extent, the characteristics of the offender. Mandatory
sentences dictate uniform sanctions for persons who commit particular types of
offenses (e.g., enhanced penalties for crimes committed with firearms), whereas
determinate sentencing guidelines prescribe specific punishments based on the
11
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: PERCEPTION AND
PERSPECTIVE 134 (1999)
12
CHARLES F. HEMPWILL, CRIMINAL PROCEDURE: THE ADMINISTRATION OF JUSTICE
34 (1978)

—9—
severity of the criminal offense and the extensiveness of the offender’s prior criminal
record.

Retribution as a penal philosophy has been criticized on several fronts when it is

actually applied in practice. First, strict retributive sanctions based solely on the
nature of the offense (e.g., mandatory sentences for drug trafficking, the use of
firearms in the commission of crimes) are often criticized as being overly rigid,
especially in societies that recognize degrees of individual culpability and
blameworthiness13. Second, the principle of lextalionis (i.e., the “eye for an eye”
dictum that punishment should correspond in degree and kind to the offense) has
limited applicability. For example, how do you sanction in kind, acts of drunkenness,
drug abuse, adultery, prostitution, and/or traffic violations like speeding? Third, the
assumption of proportionality of punishments (i.e., that punishment should be
commensurate or proportional to the moral gravity of the offense) is untenable in
most pluralistic societies because there is often widespread public disagreement on
the severity of particular offenses.

2. DETERRENT
Deterrent is the preventive effect with actual or threat of punishment upon the
potential offenders. Salmond (1947) stated that ‘punishment is before all things
deterrent and the chief and of the law of crime is to make the evil doer an example
and a warning to all who are likeminded with him’. The deterrent effect of a particular
type of punishment depends upon various factors like social structure and value
system, the population, type of law, the form and magnitude of the prescribed penalty,
certainty of apprehension and individual’s knowledge of law and punishment. This is
the idea that the threat of imprisonment discourages criminal behavior and encourages
people to abide by the rules of society14. For those individuals who are not so
influenced, longer, more frequent and harsher prison sentences must be imposed until
they decide to give up their life of crime.15

13
ROBERTS D. PURSLEY, INTRODUCTION TO CRIMINAL JUSTICE 7 (3rd Ed.1977)
14
B.R. Sharma & Vandana Kashyap, Prison System in India: a Historical Retrospection, 30 CMLJ,
136, 144, (1994)
15
M.J. SETHNA, SOCIETY AND THE CRIMINAL 303 (1989).

— 10 —
J. Bentham is the chief founder of this theory. He states that, General prevention
ought to be the chief end of punishment as its real justification. If we could consider
an offence which has been committed as an isolated fact, the like of which would
never recur, punishment would be useless. It would only be only adding one evil to
another. But when we consider that an unpunished crime leaves the path of crime
open, not only to the same delinquent but also to all those who may have the same
motives and opportunities for entering upon it, we perceive that punishment inflicted
on the individual becomes a source of security for all. That punishment which
considered in itself appeared base and repugnant to all generous sentiments is elevated
to the first rank of benefits when it is regarded not as an act of wrath or vengeance
against a guilty or unfortunate individual who has given way to mischievous
inclinations, but as an indispensable sacrifice to the common safety.

3. REHABILITATION
Although it may seem contradictory or at least somewhat odd to assert that we punish
for the treatment and reform of offenders, this basic principle underlies the
rehabilitation purpose of punishment. The ultimate goal of rehabilitation is to restore a
convicted offender to a constructive place in society through some combination of
treatment, education, and training.
The salience of rehabilitation as a punishment philosophy is indicated by the
contemporary jargon of “correctional facilities,” “reformatories,” and “therapeutic
community” now used to describe jails, prisons, and other institutions of
incapacitation16. The link between places of incapacitation and reform is established
throughout much of written history. The earliest forms of penal confinement in
dungeons, towers, caves, and other dark and dreary places were largely incapacitative
in their primary function, but some degree of moral and spiritual enlightenment was
expected of those condemned to long periods of solitary confinement.

In contrast to retribution that emphasizes uniform punishments based on the gravity of

the misconduct, rehabilitation focuses on the particular characteristics of individual
offenders that require treatment and intervention. This individualized treatment
approach is logically consistent with indeterminate sentencing structures that give
judges enormous discretion to tailor punishments for the greatest good to the

16
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY, (2002).

— 11 —
individual offender and provide parole boards with equally high discretion to release
or retain offenders for future treatment. Through the application of current theories of
human behavior and the latest therapeutic techniques for behavioral modification,
rehabilitation experienced growing acceptance in many countries throughout much of
the twentieth century.

4. REFORMATION
There was a fresh approach to the problem of crime and criminals. Individualized
treatment became the cardinal principle for reformation of offenders. This view found
expression in the reformative theory of imprisonment. The reformative view of
penology suggests that punishment is only justifiable if it looks to the future and not
to the past. “It should not be regarded as settling an old account but rather as opening
a new one”. Thus, the supporters of this view justify imprisonment not solely for the
purpose of isolating criminals and eliminating them from society, but to bring about a
change in their mental outlook through effective measures of reformation during the
term of their sentence. The reformists advocate humanly treatment of inmates inside
the prison institutions. It also suggests that the prisoners should be properly trained to
adjust themselves to free life in society after their release from the institution.

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object
of discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behavior under conditions which may never
happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the
liable party. He ought to be told and perform some craftsmanship or industry during
the hour of his confinement with the objective that he may have the alternative to start
his life again after his conveyance from jail.

5. INCAPICITATION
Another justification for imprisonment is sometimes advanced. By putting a man in
prison, it is argued; society physically removes him from its bosom and for the period

— 12 —
of his incarceration, makes it physically impossible for him to commit further
crimes17.
A primary utilitarian purpose for punishment involves various actions designed to
decrease the physical capacity of a person to commit criminal or deviant acts. This
principle of incapacitation focuses on the elimination of individuals’ opportunity for
crime and deviance through different types of physical restraints on their actions. The
conditions of confinement may be so deplorable that they reduce the offender’s
subsequent desire to engage in misconduct, but such a deterrent effect is not a
necessary component of incapacitation in its pure and earliest form18. A plethora of
devices, techniques, and structures have been used throughout history as means for
incapacitation.
Physical structures for incapacitation may have different purposes or functions
besides the physical restraint of the body. These places of confinement are described
across time and space in context-specific terms like towers, workhouses, jails, prisons,
correctional or treatment facilities, cottages, and mental institutions. The specific
language used for descriptive purposes also signifies their functions beyond physical
incapacitation. During the last half century, several new forms of incapacitation have
emerged. For example, shock incarceration programs involve short-term incarceration
of juvenile offenders to show them the pains of imprisonment and scare them into a
future life of conformity. Another variant of incapacitation, intensive-supervision
probation (ISP), leaves adjudicated criminals in their community but under the
watchful eye of probation officers or other legal authorities19.

6. PROTECTION OF SOCIETY
The fundamental principle of modern prison science is the improvement of the
offender; the entire penal system of a state resting upon one single proposition i.e the
protection of society20. That principle alone justifies the conviction for crime and the
imprisonment of offenders; to that end the energies of the progressive prison
administration are directed. The protection of society, however, is a broad aim; it is
only partially and temporarily secured by the mere incarceration of the offender, and
17
J.C. MCCLEN AND J.C. WOOD, CRIMINAL JUSTICE AND TREATMENT OF OFFENDERS
158 (1960).
18
K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY 52 (2002)
19
N.K. CHAKRABARTI, PROBATION SYSTEM IN THE ADMINISTRATION OF CRIMINAL
JUSTICE (1999)
20
NEIL C. CHAMELIN, INTRODUCTION TO CRIMINAL JUSTICE 416 (1975)

— 13 —
it is wholly lost when he is discharged from prison. In order to render the protection
effectual and permanent, the offender ought to be subjected to such a disciplinary
training in prison as shall tend to rescue him from a life of crime after he regains his
freedom. Hence it is that the reformation of the offender not only becomes a
legitimate aim, but should be made the paramount aim in the prison regime. In a
political sense, however, the effort made by the state to reform the convict does not
rest upon a humane, paternal sentiment, seeking to reform the convict for his own
good alone21. The state is not a charitable or missionary agency and it owes no greater
duty to the convict than to other individual members of the community. But
reformation is the most reasonable and safest means of protection; the public welfare
demands it as a governmental measure best adapted to secure the common safety and
promote the general good.

7. PREVENTION & REDUCTION OF CRIMES

Utilitarian’s such as Bentham, Mill and Austin supported the imprisonment as a form
of punishment due to its humanizing nature. Imprisonment serves as an effective
deterrent. The main aim of imprisonment is to prevent and reduce the crime rates in
the society. The crimes can be prevented when the criminal and his notorious
activities are checked. The check is possible by disablement. The disablement may be
of different types. Confining inside the prison is a limited form of disablement, that is
temporary and when it is an unlimited form of disablement, which is permanent. It
suggests that imprisonment is the best mode of crime prevention, as it seeks to
eliminate offenders from society, thus disabling them from repeating the crime22.
From an overall study, we came to know that there are three main purposes which
imprisonment serves in the society are:-
i). by creating the fear of punishment.
ii). by disabling the criminal permanently or temporarily from committing any other
crime.
iii). By way of reformation or making them a sober citizen of the society.

IX. IMPACT OF IMPRISONMENT

21
CHARLES, F. HEMPWILL, CRIMINAL PROCEDURE: THE ADMINISTRATION OF JUSTICE
257 (1978)
22
N.K. CHAKRABARTI, ADMINISTRATION OF CRIMINAL JUSTICE: INSTITUTIONAL
CORRECTION, 24 (1999).

— 14 —
A key issues concerning imprisonment is whether it is primarily designed to serve the
interests of society and those of the prisoner. The former belief suggests that prisons
may serve as warehouses that quarantine or incapacitate those men and women who
either cannot be deterred by the threat of sanctions or those whose actions are so
harmful to society that they are best kept away from the rest of us. The latter view
emphasizes the role of prisons to bring about the reform and rehabilitation of those
who have broken the law23. It is the matter of concern that whether the impact of
imprisonment on individual offenders undermines the capacity of these institutions to
reform and rehabilitate inmates. Sociologists of imprisonment emphasize the impact
that the prison environment exerts on the mental processes of its inmates. For many
prisoners its consequences reduce the potential for prisons to secure their reforms and
rehabilitation. Prisoners are poorly prepared for the experiences they face in the
prisons and are forced to pick up the prison routine from other inmates. They are
subject to a number of basic deprivations and attempt to compensate for the denials of
liberty, access to goods and services, heterosexual relationships, autonomy and
personal security have been argued to exert considerable influence over the behaviour
of prisoners. They have been depicted as lonely individuals in a position of
psychological and material weakness subordinate to the power wielded by prison staff
which may give rise to anger, frustration, bewilderment, demoralization or stress.
Psychological disorders including anxiety, depression, withdrawal and self-injury may
make reform or rehabilitation difficult to accomplish. Problems which include mental
illness, inadequate care and treatment of those undergoing drug and alcohol
detoxification programmes and the inability to adapt to prison regimes are major
factors explaining prison suicides. In 1999 a survey into the mental health state of
prisoners suggested that 95 per cent of male remand and sentenced prisoners
displayed symptoms consistent with psychiatric disorders and almost all female
remand and sentenced prisoners displayed symptoms common to one or more
psychiatric disorders could do some extent be related to the environment of prisons.

X. ALTERNATIVES TO IMPRISONMENT

An “alternative to imprisonment” is any kind of punishment; other than time in prison

or jail that can be given to a person who commits an offence. Just because a certain
23
MAX GREENHUT, PENAL REFORM, A COMPARATIVE STUDY, 37 (2009)

— 15 —
punishment does not involve time in prison or jail does not mean it is “soft on crime”
or a “slap on the wrist.” Alternatives can repair harms suffered by victims, provide
benefits to the community, treat the drug-addicted or mentally ill, and rehabilitate
offenders. Besides this they can also reduce prison and jail costs and prevent
additional crimes in the future. Before we can maximize the benefits of alternatives to
imprisonment, we need to repeal mandatory minimums and give courts the power to
use cost-effective, recidivism reducing sentencing options.

The Hon'ble Supreme Court in Ved Prakash v. State of Maharashtra24 held that:
"Sentencing an accused is a sensitive exercise of discretion and not mechanical
prescription acting on hunch." Finding alternatives to imprisonment at the sentencing
stage can vastly help in solving the issue of the ever growing population in the
prisons. It needs to see whether an offence is so serious as to warrantee a
imprisonment or will recompense and fine serve the purpose. It is common sense that
an offender is sentenced to a custodial sentence in order to guarantee a period of
protection to the community against such an offender. But there are situations in
which the offender is a first time offender or has committed a petty offence.
Depending on the nature of offence, the antecedents of the offender, and several such
factors, the judge may consider to sentence him to a punishment proportionate to his
offence instead of following a straitjacket formula of using imprisonment as the mode
of punishment frequently.

XI. CONCLUSION

The popular quote which was delivered by the father of our nation Mahatma Gandhi
essentially “Hate the crime, not the criminal” should be the approach held in mind in
rehabilitating prisoners. The Imprisonment must seek to correct criminals and
transform their behavior rather than merely to penalize wrongdoers. With the passage
of time, developments in the field of criminal science brought about a radical change
in the criminological thinking. Now the individual treatment becomes a cardinal
principle for the reformation of the offenders and this new vision found its expression
in the reformative theory of punishment. As against deterrent, retributive and
preventive theories the reformativists seek to bring about a change in the attitude
of the offender so as to rehabilitate him as a law-abiding member of society.

24
Ved Prakash v. State of Maharashtra, AIR 1981 SC 643

— 16 —
The increasing imprisonment sentences do help in discouraging criminal behavior
but the longer sentences are only increasing the higher rates of re-offending and there
is a possibility that when prisoners revert to their communities the problems may
inevitably multiply. The disciplinary punishment system should not reach this
pinnacle level like destructiveness for human beings from which the offenders can
nevermore be reformed. It is also necessary to improve the conditions of the prisons
plus to value the humanitarian requirements of prisoners so as to guarantee that
prisons do not produce hardened criminals. It is required to rehabilitate and socializes
prisoners in a way to assist the prisoners to grow a responsible and potential citizen of
society.

The Hon’ble Judiciary has also recognized so many rights of prisoners like the right to
life and personal liberty are the most important to any human being and while
interpreting this right it has been said that “life means more than mere animal
existence.” There are another bunch of rights also which has been recognized while
interpreting fundamental rights, namely, right to live with dignity falls in the ambit of
right to life; right to health and medical treatment is also part of the right to life, etc.
all these rights are needed to be properly implemented in correctional institutions so
that it may help in the rehabilitation of the offender because denial of these rights may
make more deterrent it is also creating awareness about judicial judgments and recent
development in law.

— 17 —