ALTERNATIVES TO IMPRISONMENT

There is an increasing realization that reforms in the prison system, have not got to be
confined to just surface level focusing at strengthening the prison system, but to gradually
diminish the powers and functioning of prison system. This requires a radical shift in our
perception. Many countries in the developed and developing world are now engaged in
coming up with different alternatives to imprisonment. There is a realization in India that
there is a strong need for introducing changes in the use of imprisonment. In India,
alternatives to imprisonment are available at all the three stages: pre-trial, sentencing and post
sentencing stage with varying degrees of success in different states.

PRE-TRIAL STAGE:

1. Bail

A frequently used measure of an alternative to pre-trial detention is bail. In the Indian Penal
Code, 1860 classifies different offences along with punishment and this Code is nearly one
and a half century old and needs revision at the earliest. The right to bail is an important right
given to an accused person. The Supreme Court of India has laid the rule of bail not jail.
Amount of bail sureties is set by the court which gets forfeited if the defendant does not
appear for the trial. The average period of detention of undertrials is around 1 to 2 years.

2. Imposing time limits on Pre-Trial Detention

Under the constitution, Right to speedy trial is a fundamental right of a prisoner implicit in
Article 21 of the Constitution of India, whereby the right to life and personal liberty is
guaranteed. Supreme Court of India has repeatedly emphasized this constitutional guarantee
of speedy trial and laid down various guidelines in this regard.

At present, Section 167 Cr.P.C. provides outer limit of 90 or 60 days for keeping the arrested
person in custody (both police and judicial custody put together) before filing chargesheet
against him in the court depending upon the length of imprisonment with which the offence is
punishable. However, there is no outer limit laid down for detaining a person in custody after
filing of chargesheet against the accused in judicial custody.

Section 436A provides that where an undertrial prisoner other than the one accused of an
offence for which death has been prescribed as one of the punishments, has been under
detention for a period extending to one-half of the maximum period of imprisonment,
provided for the alleged offence, should be released on a personal bond with or without
sureties. It also provides that in no case will an undertrial prisoner be detained beyond the
maximum period of imprisonment for which he can be convicted.

3. Plea Bargaining:

Plea bargaining system has been introduced by way of Code of Criminal Procedure
(Amendment) Act, 2005, passed by the Parliament and it has come into the effect from July,
2006. Sections 265A to 265L of the Criminal Procedure Code, 1973, allow plea-bargaining
under specified conditions. Plea bargaining is applicable only in criminal cases where
maximum punishment is up to seven years. It is not applicable in criminal cases against
women and children.

4. Free Legal Aid

All persons arrested or alleged to have committed an offence have a right to a fair trial. The
Supreme Court of India in various judgments has interpreted this right of a fair trial to include
the right to speedy trial and also the right to free legal aid. The Legal Services Authorities
Act, 1987 provides for free legal aid and competent legal services to the weaker sections
ensuring that opportunities for securing justice are not denied to any citizen on account of
economic disability.

5. Compounding of Offences

Under Section 320 of the Code of Criminal Procedure, 1973, some minor offences punishable
under Indian Penal Code, (e.g. small theft, house trespass, cheating, voluntarily causing hurt)
can be compounded with the permission of the court before which the prosecution for such an
offence is pending. It is suggested that there should be a review of these offences and to
enlarge the offences under this category, e.g. the theft committed, the amount may be raised
to Rs. 1000/-. A committee of professionals drawn from cross sections of stakeholders should
be appointed to examine this issue and to submit recommendations.

6. Administrative fines / non penal fines:

In most of the countries, including India, the traffic law and other special laws allow the law
enforcing agencies to impose administrative fines in certain cases for easing the burden on
prosecution. Judicious use of these provisions shall certainly impact overall size of prison
population in the country.

Sentencing Stage

Under the Indian Penal Code, 1860, different punishments are prescribed for different
offences. Section 53 of the Indian Penal Code provides the Punishments to which offenders
are liable which are – a) Death; b) Imprisonment for life; c) Imprisonment– (i) Rigorous
involving hard labour; and (ii) Simple imprisonment, d) Forfeiture of property; and e) Fine.

Imprisonment is more widely used as a punishment mode. The courts have held that
sentencing an accused person is sensitive exercise of discretion and not a routine or a
mechanical prescription. The social background and the personal factors of the crime – doer
are very relevant factors.
1. Fine and other monetary penalties:

Fine and other monetary penalties are imposed for various minor offences on the offenders at
the pre trial stage. It is expected this measure will lead to reduction of the large percentage of
pre trial detention of undertrials. Fines are economical in terms of both money and man
power and are also humane alternative as it inflicts minimum damage to the offender.
However, fines cannot be used for poor offenders who cannot pay. Many times, prisoners are
committed to prison in default of payment of fine. It is for such cases that community service
will be a better option than simple imprisonment.

2. Admonition / Absolute discharge / Conditional discharge:

Under Sections 360 and 361 of the Cr.P.C, 1973, an admonition is available for juvenile
cases involving juvenile offenders. Admonition is used for first time offenders who commit
an offence punishable with imprisonment for less than 2 years. Courts are empowered to
release an offender after admonition in respect of certain specified offences. A conditional
discharge means that the offender is subject to the condition of not committing any further
offences during the period fixed by the Courts. Judicious use of this provision by the courts in
appropriate cases shall obviate the need for imprisonment in many more cases that is being
done today.

3. Compensation:

Under Sections 357 to 359 of the Cr.P.C, 1973, the Courts may order offenders to pay such
compensation as the court thinks reasonable for loss or injury caused to any person by the
commission of the offences. The courts order compensation along with any other addition
sentence. It is not an independent sentence alternative to short term imprisonment. 4.

4. Probation:

Probation is one of the outstanding non custodial measures which is designed to work for
early reformation and re-socialization of criminals while they remain in the communities as
ordinary citizens by subjecting them to certain conditions with which they must comply.
Under the provisions of Probation of offenders Act, 1958, these measures can be applied to
offenders who have committed minor crimes for the first time. They can be released on
probation with the supervision of probation officers. Offenders may be released on probation
without the supervision of probation officers on condition that they promise to conduct
themselves well. There is also a restriction on imprisonment of offenders under 21 years of
age, if they have not committed an offence punishable with life imprisonment. Such an
offender must be released either on admonition or probation unless there are reasons to be
recorded having regard to the nature of offence and character of offender. In some states of
India, probation is under the Department of Prisons while in other States, it is looked after by
the Department of Social Welfare. There is a need to strengthen the probation system in India
and see that it is more effectively used. Coordination with the judiciary is essential in this
regard.

5. New forms of community-based sentence:

Community-based sentences have yet to emerge as alternatives to imprisonment in the legal

framework of our country. The Indian Penal Code (1860) has still not been revised. However,
there have been certain new changes and developments in some specific laws for instance,
the State of Gujarat, has introduced an amendment in the Prohibition Act, whereby
Community Service Scheme has been introduced as an alternative to imprisonment. Gujarat
Government had made amendment in the Community Services of Offenders Act, 1949.
Similarly, Andhra Pradesh has come up with a draft of The Andhra Pradesh Community
Service of Offenders Act, 2003.
The kind of community services are – to undertake work in a welfare institutions involved in
care of old or disabled persons, environmental improvements e.g. tree plantation,
maintenance, construction and renovation of buildings like that of schools, hospital, etc. This
legislation is at present pending with the Government of India for its concurrence. The key
objective of the community service is to promote among offenders a sense of responsibility
towards society. It is recommended that community service should be added as one of the
methods of punishment in the Indian Penal Code, 1860.

POST SENTENCING STAGE

In India, different alternatives are available in variable spells. In order to avoid

institutionalization and to assist offender in their early reintegration into society, measures
include various forms of parole, furlough, remission, pardon, work camps and open prisons
are available as alternatives to imprisonment.

1. Parole

Parole as a non institutional treatment results in conditional release of the offender from the
prison before termination of his sentence. It is a conditional suspension of sentence for a short
duration in order to enable the prisoners to attend to their personal problems at home like
agricultural, harvesting, etc. or to attend family related emergent needs.

2. Pardon

Since offences are committed against the State, the Indian law does not permit the victim to
grant pardon. The power to grant pardon or executive clemency is vested to the Head of the
State i.e. the President of India or Governor of the State (Articles 72 and 161 of Constitution).
In addition to this, State Governments also commute the sentence for all categories of
prisoners in commemoration of certain special events. This has the effect of shortening the
period of imprisonment of convicted prisoners, thereby reducing the prison population. The
Supreme Court is also looking at the issue of granting pardon by the Heads of the State
Governments with a view to rationalizing the grounds of pardon.

3. Remission of Sentence:

As an incentive for good work and for keeping good behaviour and contributing to prison
discipline, remission can be granted to prisoners by the State Government and Head of the
prison Department or Head of the Jail. There are three kinds of remission i.e. ordinary
remission, special remission and state Government remission. Remission can be earned by
inmates through getting formal education in the prison in some states. It is suggested that
acquiring formal education should also be a criteria for earning remission. The system of
earned privileges should be uniformly set out.

4. Temporary Release Mechanisms

The temporarily released prisoners serve their sentence outside the prison for a given period
of time and then return back to serve the remaining sentence. These include work release and
furlough or leave. In India, furlough is granted as a leave to a prisoner to visit his family for a
short period which counts towards his sentence, after he undergoes certain period of sentence.
The difference between parole and furlough is that parole is a suspension of sentence while
furlough is treated as part of sentence. Different states give furlough for good conduct to
prisoners not involved in heinous offences.

5. Open Prisons

All prisoners are not dangerous criminals and not even some of those who have committed
serious offences. Open prisons in one form or another have been in existence in India for a
long time. In India, there are 26 open prisons having capacity of a 4353. Open prisons have
developed better in some states of India than in others for a variety of reasons. Prisoners
serving life sentence on the basis of their good conduct are shifted to the open prisons.