When court lost faith in human ability to reform

The air was gloomy, eyes swollen and red, the despair evident. It felt like a dead man’s dungeon, the negativity could not be missed. Where was I? I was inside a prison. A place, which up until last week, was a symbol of reformation and of faith that people have the potential to change.

A notion that pumps some positivity into the confines of a prison, as it gives hope, clinging on to which lifers spend each day, month and year of their incarceration. The latest Supreme Court judgment in the Rajiv Gandhi Assassination case has snuffed out the ray of hope for them.

By virtue of this dictum, both the high court and the Supreme Court now have the authority, not only to send a person for the remainder of his natural life to prison, but also to restrict the power of the executive under statutory law to grant remissions, prohibiting his/her early release from prison.

The approach taken by the Supreme Court, in the garb of being restorative, is downright retributive, with all arguments on reformation being rejected outright. In times when internationally jurists are advocating for abolition of not only death sentences, but life imprisonment as well, the verdict has nudged us in the opposite direction. What underlies the verdict is perhaps the end that had to be achieved in one specific case, but extending the ratio to all cases, is in itself unfortunate.

The verdict is on many counts self-contradictory and founded on archaic principles and considerations. The judgment speaks of life being equivalent to 14 years, but statistics belie this. In West Bengal alone, of the 44 lifers whose sentences were remitted early in 2014, majority had served more than 20 years in prison. The recent Law Commission Report on the Death Penalty, also affirms that in case of serious crimes, remissions are granted only after 30 to 60 years of incarceration. The presumption highlights the sense of distrust the court has for the executive, in as much as its power to grant remission is concerned. While the lack of uniformity in granting remissions was discussed at length, no emphasis was placed on the need to frame guidelines to streamline the process.

Additionally, emphasis was placed on the lack of necessary facilities, education and climate in prisons for ensuring reformation of an offender. There are two infirmities with this observation. One, the reference cites a 35-year-old judgment without taking into account the changes since the ‘80s. In 2014 alone, the expenditure incurred by prisons on education, vocational training and welfare activities was Rs 2,197.5 lakh, while in the early ‘90s this figure was a meagre Rs 66.27 lakh.

This is not to say that prisons have the best possible rehabilitation facilities, but that there is a marked difference between then and now. Secondly, should the lack of climate for ensuring reformation translate into justifications for infinite life terms or should the cure be improving facilities to ensure that people come back to society as law abiding citizens?

A life sentence without remission has been interpreted as being a part of the legal provision under criminal law, but then why the prohibition on district courts to impose such sentences. The judgment admits that there is lack of uniformity in awarding death sentences, yet no framework or guidelines were discussed to ensure consistency while imposing whole life sentences or while quantifying the years to be spent behind bars before consideration for remission. Without any specific guidelines to this effect, prisoners will eventually end up being sentenced to varied lengths of imprisonment in a highly inconsistent manner.

There is every risk now that the district courts may award death sentences more liberally. Additionally, a death row prisoner may actually have a better chance to seek early release from prison than the one sentenced to life without remission. No emphasis is placed on the connotation of such sentences either. Internationally, such sentences have been perceived as a harsher punishment than death, as the position of a person so sentenced is comparative to one on an indefinite death row, wherein a man is destroyed by the waiting for death long before he really dies.

The judgment, perhaps influenced by the times – where heinous near unforgivable crimes are in the papers every day – proceeds from a stance of immense distrust in the potential of a human being to change. For a victim might think that justice is served only by killing or putting away culprits for life, society is not. There will always be vengeful and forgiving aspects to crime and punishment, but it is the latter that has to be nurtured by law, if society is not to regress into some atavistic past.

To ensure justice to victims, one should not lose sight of the restorative and reformative aspects of penology. Though the judgment identifies public protection, retribution and deterrence to be the justification for imposition of whole life sentences, there is no evidence to say that these considerations cannot be found in a sentence of life imprisonment that allows review of sentence after a certain period of detention has been served.

In effect, it seems that we have been nudged backwards towards the retributive goals of punishment, instead of being progressive and creating an environment conducive to reformation.

(The writer is a consultant with the Prison Reforms Programme at the Commonwealth Human Rights Initiative)