Gandhi and the Reformative Approach to Punishment

Probation. Release under supervision instead of imprisonment, for offenders for whom prison would do more harm than good.

Parole and remission. Release before the end of the term, conditioned on conduct.

Open prisons and prison labour with wages.

Education, training and treatment inside prison.

Separate systems for children, which is the reformative theory applied to a whole class of offender.

Restorative processes, in which the offender, the victim and the community deal with the consequences of the offence, which is closer to Gandhi than any other modern development.

The Indian authority

Facts. Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287. The appellant, about twenty eight, an unemployed man who had worked as a junior assistant in the Andhra Pradesh Secretariat, and a co-accused deceived several desperate unemployed young men and obtained sums totalling about twelve hundred rupees by falsely representing that they would secure jobs for them through politically influential friends. Cheating under section 420 of the Penal Code was made out and all three courts below convicted him. He was sentenced to three years of rigorous imprisonment. The Supreme Court granted special leave limited to the question of sentence.

Held. Allowing the appeal in part, the Court held that the pre-sentencing provision in section 248(2) of the Code of Criminal Procedure has a penological significance of far reaching import which the trial magistrate had missed, since at all three tiers the focus had been on the seriousness of the crime and no ray of light on the criminal, or on the social facts surrounding him, had penetrated the forensic mentation. Because the whole territory of punishment in its modern setting was, in the Court's words, virtually virgin so far as this country was concerned, it examined the subject at length for the guidance of the subordinate judiciary. It held that progressive criminologists agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals, mental and moral, is the key to the pathology of delinquency and to the therapeutic role of punishment; that the whole man is a healthy man and every man is born good; and that criminality is a curable deviance. It observed that a new class of crime arises from the restlessness of the spirit and the frustration of ambitions, and that white collar crime of the kind before it belongs to that condition. The sentence was reduced and the appellant directed to be dealt with on reformative lines.

Why it matters. This is the direct authority for MU's topic. The Gandhian conception is adopted by name by the Supreme Court, and it is adopted to decide a sentence, with the consequence that a court which considers only the gravity of the offence and never the offender has failed to perform the exercise the Code requires.

Facts. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. Two petitions were heard together. A convict under sentence of death challenged his solitary confinement, contending that section 30(2) of the Prisons Act, which requires that such a prisoner be confined in a cell apart from all others and placed under the charge of a guard, does not authorise solitary confinement and that the jail authorities could not impose such punishment under the guise of giving effect to it. A second petitioner challenged section 56 of the Prisons Act, which empowers the Superintendent to confine a prisoner in irons, as conferring unguided and arbitrary power contrary to articles 14 and 21.

Held. The petitions were dismissed but both sections were read down severely. Section 30(2) does not empower prison authorities to impose solitary confinement on a prisoner under sentence of death, and even jail discipline inhibits solitary confinement as a punishment. Convicts are not by reason of conviction denuded of all fundamental rights. As to bar fetters, they may be imposed only after considering the particular characteristics of the individual prisoner; no ordinary routine reasons will do; reasons must be recorded in the Superintendent's journal and in the prisoner's history ticket in language the prisoner can understand; the case must be reviewed at regular and frequent intervals; the fetters must be removed as soon as it is safe; and the section does not permit their use for an unusually long period, day and night, particularly where the prisoner is in a secure cell from which escape is barely conceivable. Krishna Iyer J., concurring, observed that prison manuals are mostly callous colonial compilations whose copies are largely beyond the prisoner's knowledge, that punishments in civilised societies must not degrade human dignity, and that the cardinal sentencing goal is to change the consciousness of the criminal.

Why it matters. The reformative theory does not stop at the sentence. A theory that says the object is to change the offender, and then permits that offender to be degraded in prison, has contradicted itself. This is the case in which an Indian court said so and imposed procedural controls to make the statement operative.

The criticisms

It measures by need rather than by desert. If the sentence is fixed by what will reform, then two people who did the same thing receive different sentences, and a person who needs a great deal of reform may be detained far longer than the offence warrants. This is the objection that limits the theory rather than defeating it, and the combined theory at chapter 490 answers it by capping the sentence with desert.

It has no answer to the offender who needs no reform. A person who committed a grave offence in circumstances that will never recur requires no treatment at all, and the theory alone would release them immediately.

It can be coercive. Treatment imposed on a person who has not asked for it, and whose release depends on being pronounced cured, gives enormous power to those doing the pronouncing.

It ignores the victim. A theory wholly concerned with the offender's future has little to say to the person harmed, which is why restorative processes are an important supplement.

The evidence on rehabilitation is mixed. Some programmes reduce reoffending and many do not, and the honest position is that the theory's promise is greater than its demonstrated delivery.

And the Indian objection that matters most: prisons do not reform. Overcrowding, understaffing, delay and the very large proportion of undertrial prisoners mean that in practice the institution the theory relies on is not doing the work the theory assigns it. Sunil Batra is evidence for that, and so is every prison inquiry since.

A worked example

A woman with two young children is convicted of stealing food and household goods from a shop on four occasions over three months. She has no previous conviction. Her husband has left, she has no regular income, and the goods were consumed.

A purely retributive sentence looks at four deliberate thefts and fixes a term.

A purely deterrent sentence asks what will discourage others in the locality from shoplifting.

A purely preventive sentence removes her opportunity to steal by imprisoning her.

A reformative sentence, on Gandhi's premises, asks a different question: what produced this, and what will stop it? The offences are consecutive and small, and the pattern is subsistence. Imprisonment removes the children's mother, ends any employment prospect and makes the next offence more likely, so the measure that would satisfy the preventive theory is the one that most damages the reformative aim.

What the Indian authority requires. Under section 248(2), and on Giasuddin, the court must hear her before sentence and take account of the social facts surrounding her, not merely of the four thefts. A sentence of probation with a condition of supervision, an order for restitution, and a referral to whatever assistance exists, is the answer the reformative theory gives.

And the honest limit. If she offends again while on probation, the theory has no further move that does not become preventive. That is not a defect in Gandhi; it is the point at which one theory hands over to another, and a good answer says so.

Distinctions that carry marks

What the reformative approach is NOT

It is not leniency. A supervised sentence with conditions may be more demanding than a short term of imprisonment, and the theory is compatible with long sentences where reform genuinely requires them, which is precisely why it needs a cap.

It is not a denial of responsibility. Gandhi's offender is a person capable of change, which presupposes that they are an agent and not a mechanism.

"Hate the sin and not the sinner" is not indifference to the offence. The offence is condemned; it is the person who is not written off.

It does not end at the courtroom door. Sunil Batra is the authority for the proposition that a reformative theory which tolerates degradation in prison has contradicted itself.

Quick revision

1. Gandhi: hate the offence and not the offender; crime is a symptom of social conditions; the offender is capable of change; punishment must not degrade; the community is implicated; and the pattern is self-suffering rather than infliction.
2. Institutional consequences: individualised sentencing, probation, parole and remission, open prisons, wages for prison labour, education and treatment, separate systems for children, and restorative processes.
3. Giasuddin, (1977) 3 SCC 287: section 248(2) CrPC has a penological significance the courts below missed; no ray of light on the criminal had reached the sentencing; progressive criminologists agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals, mental and moral, is the key to the pathology of delinquency; criminality is a curable deviance.
4. Sunil Batra, (1978) 4 SCC 494: section 30(2) of the Prisons Act does not authorise solitary confinement of a prisoner under sentence of death; convicts are not denuded of all fundamental rights; bar fetters need individual reasons recorded in language the prisoner understands, frequent review, and removal as soon as it is safe.
5. Criticisms: it measures by need rather than desert; it has nothing to say to the offender who needs no reform; treatment can be coercive; it ignores the victim; the evidence is mixed; and Indian prisons do not in fact reform.
6. The place it occupies: below the ceiling that desert fixes, which is where the combined theory of chapter 490 puts it.

Test yourself

1. State Gandhi's view of the offender and of punishment. That one should hate the offence and not the offender, treated as a practical rule rather than a sentiment, since a person treated as an enemy behaves as one. That crime is largely a symptom of social conditions, so a society which produces poverty, unemployment and the loss of occupation and community is punishing its own product. That the offender is capable of change, which is the same premise that makes satyagraha possible. That punishment must never degrade, since a punishment destroying self respect makes reform impossible. And that the community is implicated, so reform is meaningless without something to return to.

2. What did the Supreme Court hold in Giasuddin, and why is it the authority for this topic? That the pre-sentencing provision in section 248(2) of the Code of Criminal Procedure carries a penological significance of far reaching import which the trial magistrate had missed, since at all three tiers the focus had been on the gravity of the crime and no ray of light on the criminal or the social facts surrounding him had penetrated the sentencing. It held that progressive criminologists agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals, mental and moral, is the key to the pathology of delinquency and the therapeutic role of punishment, and that criminality is a curable deviance. It is the authority because the Gandhian conception is adopted by name and applied to decide an actual sentence.

3. Why does Sunil Batra belong in a chapter on the reformative approach? Because a theory whose object is to change the offender contradicts itself if it permits that offender to be degraded once sentenced. The Court held that section 30(2) of the Prisons Act does not authorise solitary confinement of a prisoner under sentence of death, that convicts are not by reason of conviction denuded of all fundamental rights, and that bar fetters require reasons particular to the individual, recorded in language the prisoner can understand, reviewed frequently and removed as soon as it is safe. Krishna Iyer J. added that punishments in civilised societies must not degrade human dignity and that the cardinal sentencing goal is to change the consciousness of the criminal.

4. What is the principal objection to the reformative theory, and how is it answered? That it measures by need rather than by desert, so that two people who did the same thing receive different sentences and a person requiring a great deal of reform may be held far longer than the offence warrants, while an offender needing no reform must be released at once. It is answered not by abandoning the theory but by capping it: the combined theory makes desert the ceiling and lets reformation operate freely below it, which is where probation, parole, remission and treatment conditions belong.

5. "The reformative theory fails in Indian prisons." Discuss. The criticism is factual rather than theoretical and it has force. Overcrowding, understaffing, long delays and a very large proportion of undertrial prisoners mean the institution the theory relies on is not performing the function the theory assigns it, and Sunil Batra is itself evidence of conditions the theory cannot accommodate. The answer is that this is an argument for reforming prisons rather than for abandoning the aim, and that the theory's Indian legal expression is not confined to prison: individualised sentencing, probation, remission and the separate system for children all operate outside it.