Probation as an Alternative to Imprisonment, and Its Utility
Chapter One Hundred Seven
Syllabus topic 4, "Approaches to Sentencing"
Pages 439 to 442 of 806
In one line
The case for probation is not that it is kinder. It is that for a large class of offender it works better, costs less and does less harm.
The comparison, made properly
Set probation against a short sentence, because that is the real choice a magistrate faces.
| A short sentence of imprisonment | Probation under section 4 | |
|---|---|---|
| Employment | Lost on the first day | Preserved; and section 14(b) obliges the officer to endeavour to find work where necessary |
| Family | Dependants lose their income and often their home | Intact |
| Association | Full exposure to a criminal population from day one | None |
| Stigma | The fact of having been in prison, permanently | The disqualification attaching to conviction is removed by section 12 |
| Supervision | None after release | A named officer for not less than one year under section 4(3) |
| Conditions | None after release | Residence, abstention from intoxicants, and any other matter under section 4(4) |
| The victim | Nothing | Compensation and costs under section 5, which the officer must help him pay under section 14(c) |
| Cost to the State | The highest of any disposal | A fraction of it |
| If he offends again | The sentence has already been served | He may be sentenced for the original offence under section 9 |
The last row is the one candidates miss. Probation is not a lesser punishment that has been spent. It leaves an unserved sentence hanging over the offender for up to three years, which is more leverage over his future conduct than a fortnight in prison leaves.
The five arguments in favour
One: the short sentence is the worst of both worlds. It is long enough to cost the offender his job and to expose him to a criminal population, and too short for any training, education or treatment to begin. It delivers the harms of imprisonment and none of its supposed benefits.
Two: prison teaches crime. Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633, states the Act's object as preventing the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in jail. That is the Supreme Court's own formulation and it is the sentence to quote.
Three: it individualises. Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, complained of a compartmentalised system of punishment and said there is a wide range of choice and flexible treatment which must be available to the judge, naming release on probation among the options. See [Individualisation of Punishment].
Four: it is reversible and it is graduated. Section 8 lets the conditions be tightened or relaxed and lets the bond be discharged early for good conduct. A sentence of imprisonment, once served, cannot be adjusted at all.
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