"An eye for an eye will make the whole world blind
." - Mahatma Gandhi.
Mahatma Gandhi, a famous political sage and our father of the Nation, is widely
credited with this piece of wisdom. The proverb states that if we continue to
punish people we see to be cruel, we will be no better than the bad ourselves.
The criminal justice system is slowly advancing from being retributive to
This paper attempts to closely analyze a type of non-institutional
form of correction, i,e probation
. The concept of probation
becomes important because it has always been one of the key correctional methods
of criminology. It is a form of non-custodial sentence and the manner of serving
is used as an alternative to imprisonment.
It has also been realized that it is
indeed a sanction of punishment and this concept is ticked often as a form of
leniency towards punishment in the perception of common people. This paper also
sets the platform to banter about the holistic techniques of probation to
get complete clarity with regards to various legal, sociological as well as
psychological aspects of probation and also to provide a comparative statistical
analysis of national as well as international data on probation.
article also aims to scrutinize how to identify and address the systemic
inequalities that offenders encounter during their probation period and how to
fix the lacuna of structural injustices that leads them to be victims rather
The earlier penological approach held imprisonment, that is, custodial measures
to be the only way to curb crime. But the modern penological approach has
ushered in new forms of sentencing whereby the needs of the community are
balanced with the best interests of the accused. Compensation, release on
admonition, probation, imposition of fines, community service is a few such
The term Probation is derived from the Latin word probare,
which means to test or to prove. It is a treatment device, developed as a
non-custodial alternative which is used by the magistrate where guilt is
established but it is considered that imposing a prison sentence would do no
good. Imprisonment decreases the capacity to readjust to the normal society
after the release and it is often noticed that association with professional
delinquents often has undesired effects.
Probation seeks to socialize the criminal, by training him to take up an earning
activity and thus enabling him to pick up those life habits, which are necessary
for a law-abiding member of the community. This inculcates a sense of
self-sufficiency, self-control, and self-confidence in that person, which are
undoubtedly the essential attributes of a free life. The Probation Officer would
guide the offender to rehabilitate himself and also try and wean him away from
such criminal tendencies.
During the probation period, the offender is sent to
various educational, vocational, and industrial institutions where he is trained
for a profession that may help him in securing a livelihood for himself after he
is finally released and thus lead an upright life. And whatever work an offender
is doing as a probationer, he is contributing to the national economy. Thus, he
no longer remains a burden on society.
It is a rapidly growing concept as one of the finest methods of alternatives to
imprisonment. It can be said, probation as a concept has been stuck on a seesaw
as far as its sociological development is concerned. Psychologically, a method
like probation has a significant impact on the reformation of an offender, there
is always an idea that probation as a method motivates the offender
psychologically to reform itself, which is also true to a certain extent.
it also has some negative sides to it, the majority of psychological, mental
illness in the probation caseload is often ignored and remain unrecognized by
common people, this issue needs to be addressed in a much effective manner, as
there is nothing much important than the role of psychological aspects of
probation in an offenders reformation.
From the legal point of view, probation
has been developed, redeveloped periodically again and again as per the
increasing awareness regarding the necessity of having a systematic framework
for initiating a correctional approach towards the offenders.
This method of making this research paper is doctrinal. This research paper is
based on articles, journals, statutes, books, landmark cases, and various other
committees and statistical reports. The researchers focused on the legal aspect
as well as social aspects of the probation of the offenders. Especially focusing
on the impacts of the law both on the probationer as well as the society.
Objectives Of The Research Paper
- How do sociological factors affect the probationer's life and his
- What are the sociological implications that the probationer has to go
through after his release?
- What is the current position of probation laws in India and their
application in the Indian correctional administration?
The objective of my research paper deals with the following:
- To study the legal aspect relating to the probation system in India.
- To study the sociological aspect of probation in India.
Sociological Aspect Of Probation
The probation administration grew, consequently, a custom of making a difference
to minimal delinquents and social misfits. It had no inbuilt vocation or
oversight structure, and such management as existed was practiced by the judges
who sat on the nearby case councils: it was non-proficient oversight of
non-proficient case managers.
The two judges and probation officials had similar
wide qualities, and this sharing prompted a decent working relationship, the
various leveled nature of which was a reasonable reflection of the particular
societal position of the two gatherings concerned. There was no assemblage of
expert information held by the one and denied to the next; justice and
post-trial agent the same were essentially excited novices, while maybe more
significant still the one had the unlimited authority of the reference of
customers to the next. The states of oversight set the boundaries of management.
They characterize the sentence to be executed, build up social assumptions for
respondents, and give the post-trial supervisor apparatuses to keep educated and
achieve enhancements in a litigant's direct and condition. Post-trial
supervisors suggest and carry out conditions and screen respondents' consistency
with those conditions. They additionally work with respondents to work with
their reintegration into the local area as a decent and useful citizenry.
Probation looks to mingle the crook, via preparing him to take up an acquiring
action and consequently empowers him to get those life-propensities, which are
vital for a
well-behaved individual from the local area. This instills self-appreciation
restraint, and fearlessness in him, which are without a doubt the fundamental
of a free life. The Probation Officer would direct the guilty party to restore
himself and attempt to wean him away from such criminal propensities.
general public is moreover served. The object of society that every one of its
individuals assumes a positive part by looking for their self-recovery is
accomplished by the probation framework, it is for sure a powerful technique for
safeguarding social fortitude by monitoring the crooks well.
The significant speculations and viewpoints on the causes and best approaches to
diminish wrongdoing have been grouped in different ways.
The most settled
speculations and points of view include:
- Social Learning Theory
Social learning theory was propounded by psychologist Albert Bandera. As per
this hypothesis, social cooperations differentially open people to learning
conditions helpful for unlawful direct. Diverse social collaborations shape
considerations that are negative or positive toward criminal conduct or that are
killing as in they support irritating by advocating or pardoning it.
disguised, these contemplations keep on directing individuals' choices.
Individuals can likewise become engaged with wrongdoing through impersonation -
that is, demonstrating criminal lead. When individuals have introductory
introductions to wrongdoing through the two contemplations and impersonation,
they proceed with criminal demonstrations through friendly fortifications -
prizes and discipline. The proceeded with inclusion relies upon openness to
social fortifications that reward this movement.
- Social Control Theory.
This theory was propounded in 1969 by Travis Hirschi. As indicated with the aid
of using pleasant manipulate hypothesis, manipulate is supported with the aid of
using people's intending with dating with the regular request - with the aid of
using their bonds to family, school, work, ordinary exercises, and convictions.
As pleasant bonds fortify, "social capital" ascents. Social capital is the asset
brought with the aid of using the character of connections among individuals
(e.g., social help, contacts for occupations). Such capital clothes sources may
be used to deal with issues. For example, while a selected receives any
other career or a sturdy dating, social bonds can make, social capital may
be conveyed, and impediments beforehand of time lacking from a singular's
lifestyles can end up controlling.
- Opportunity Theories.
According to this hypothesis, for a criminal occasion to happen, 2 fixings ought
to merge in reality. to start with, there should be a private propel to hold out
a criminal demonstration. Second, the individual should have the possibility to
pull wrongdoing. chance hypotheses focus on the next fixing.
may likewise endeavor to supplant criminal freedoms with favored other options.
This interaction may include officials "expediting" prosocial exercises
is, creating exercises locally or at home to lead people on management away from
wrongdoing openings. Post-trial agents might attempt to upset exercises that
expand wrongdoing openings for people on oversight. For example, post-trial
supervisors might try to preclude contact with explicit individuals (e.g., past
co-guilty parties), going on explicit roads, and admittance to explicit
foundations (e.g., bars where relational struggle regularly results).
Psychological Aspect Of Probation
The mental health of an individual consists of emotional, psychological, and
social well-being. It influences how a person feels, thinks, and acts. Mental
health is as common, if not more common, among Probation Service clients as they
are in prison populations. However, the majority of mental illness in the
probation caseload is unrecognized and unaddressed.
Furthermore, with the
assistance of probation services, a lot many people with mental illnesses who
are presently incarcerated and are serving short terms might be handled
effectively in the community. The probation service is critical in organizing
the many components of care for offenders with varying requirements. Staff can
help individuals on probation find housing, find work or training, and access
appropriate care and treatment by adopting a 'Whole Person approach.
A 2012 report on the incidence of mental health issues in probationers shows
that around 4 out of 10 (39 percent) probationers had been suffering from a
mental illness (Brooker et al.,2012). Around 1 in every 6 people suffering from
a mood problem, 1 in every 4 suffered from an anxiety problem. Furthermore,
whereas 88 percent of people with both existing and previous mental illnesses
and a drug issue obtained substance abuse therapy, just 40 percent of those with
both past and present mental illness and serious alcohol problems received
People with mental health problems, particularly those involved in the criminal
justice system, seldom have "just" mental health needs, but instead, have a
variety of health and social challenges. Probation is critical in organizing the
many sorts of support required to solve these challenges. Working for a living
is critical to enhancing mental health, addressing social needs, and reducing
recidivism. Probation services should explore pathways into work as part of
sentence planning regularly, including some appropriate adaptations which might
be required for probationers with psychological problems.
Legal Aspects Of Probation
Hate the crime and not the criminal
The above-mentioned proverb implies that we must abolish crime, which does not
necessitate the removal of criminals. In India, criminal law focuses on mending
offenders rather than publishing them. One of the most vital forms of reforming
offenders is Probation
. After learning about sociological as well as the
psychological significance and implications of Probation.
We have derived that
Probation is a judicial act in which a sentence is suspended for a while. Even
though social investigation and supervision are important components of this
process, the judiciary plays a vital role in the system and performs the most
essential functions. As a result, probation is a court system rather than a
program. In 1958, India passed the Central Probation Act, which established the
The entire probation system is governed by precise legal provisions, and
the judiciary has sole authority over its performance. It is thought that
allowing young criminals to serve Probation will prevent them from becoming
habitual offenders. It has the vested approval of the legislature and hence
remains supreme in implementing the spirit of the probation acts.
Classification and types of probation
Probation can be classified into two types: formal and informal. A formal one
involves a probation officer's tight monitoring, whereas an informal one
involves reporting to a court for court fees or other expenses. When a person is
accused of a violent crime, formal probation is usually granted, while informal
probation is usually granted when the offense is less serious. Apart from that,
there are numerous sorts of probation programs, and they usually differ in terms
of what the offender is obliged to do. Supervised probation, unsupervised
probation, community control, shock probation, and crime-specific probation are
the most prevalent forms of probation programs.
- Arvind Mohan Sinha vs. Mulya Kumar Biswas
The Supreme Court stated that Probation is a reformative instrument to reclaim
amateur criminals who can be rehabilitated.
- Md. Syad Ali vs. the State of Gujarat.
In this case, the accused was a first-time offender and his age was less than 21
years. The court held that it was an appropriate case for awarding probation.
- State of Maharashtra vs. Natwarlal.
In this matter when the offender smuggled gold, the court refused to apply
Section 4 (1) of the Probation of the Offenders Act. The court ruled that this
offense has an impact on public revenue and the nation's economy, as well as the
general public's interest.
- Chhanni vs State of Uttar Pradesh.
This case states the concerns related to the interpretation of section 360 of
the Cr.P.C. In this case, it was determined that the requirements of the two
statutes governing probation varied significantly and that they cannot cohabit.
As a result, restrictions mentioned under section 360 of Cr. P.C is inapplicable
where the Probation of Offenders Act is in play.
The difference between these
two provisions is that section 360 of the Code of Criminal Procedure applies
only to people over the age of 21 years who have been convicted of an offense
punishable by fine only or term of imprisonment of 7 years or less, while
section 360 of the Code applies to anyone under the age of 21 or women who has
been convicted of an offense not punishable by imprisonment for life or life
While the scope of Section 4 of the Probation Act is substantially
wider. It applies to anyone convicted of committing a crime that is not
punishable by death sentence or life imprisonment. As a result, the court
determined that the provisions of the two statutes, which differed
significantly, could not be meant to cohabit in the same jurisdiction at the
Advantages And Criticism Of Probation System In India
It is of course true that the probation system has not lived up to its
expectation, but it is also true that until now no such alternative institutions
have emerged as possible substitutes for jail and prison. For the time being, it
will have to be said with Mr. Justice Chandrachud:
Probation though not a panacea for all ills in our criminal justice system, yet
constitutes an essential ingredient of the solution by providing for reformation
or rehabilitation through early intervention.
In a famous judgment, the Chief
Justice of India has further observed, "Recidivism is a word expressing the
notion that human beings are bound to re-offend. It denotes the tendency of
offenders to relapse into criminal behavior and return again and again to the
crime they were convinced of. It is a sociological phenomenon, which finds its
roots in ills within an individual."
India's probation system is a central part of its criminal justice system.
Salient features of this system are that it is open to all offenses irrespective
of their seriousness, it does not require a conviction for the imposition of
sentence, and its release rights are far more generous than those under remand.
Its purpose is to offer low-risk offenders the opportunity to pay their dues to
society in exchange for penal servitude. It is granted after the court imposes
the term of incarceration. Then the time is suspended for the duration of a
probation period. If the offender does not comply with the conditions of his
probation then the judge has the full power to revoke the term of probation and
impose the original sentence.
The Indian criminal justice system has been criticized for its heavy reliance on
primitive custodial punishment and the lack of alternatives to imprisonment. The
probation system is, therefore, considered a progressive experiment in India.
But it too comes with its fair share of disadvantages, for example, there are
people in the community who believe that convicted criminals should not be
allowed in society as they are capable of committing other crimes. Another
concern is the inconsistency of probation sentences and probation officers in
the treatment of offenders. Some critics claim that probation gives criminals
too much liberty in letting them live freely when they should be imprisoned.
The best studies on this subject indicate that " probation serves an important
role in reducing recidivism." One study found that for every $1 spent on
probationers, $4 was saved by avoiding incarceration and prosecuting offenders.
The probation system, therefore, is a kind of social experiment which has gone
on the line and has proved itself to be very successful. It should be utilized
more effectively and extended by including more persons who have been convicted
of an offense but have not been sentenced to an imprisonment so far.
The Non- Institutional form of correction methods plays an important role in
restoring an individual's life from the experiences of crime and incarceration.
The methods adopted in these are cheaper, lenient, and easy for both the prison
authorities, convicted felons, and the state authorities.
The impacts of
incarceration lead to various social and psychological changes within the
prisoner. So to uplift the life of the prisoners and to restore them to society
as normal human being the non-institutional methods such as probation was
introduced. The term probation was based on behavioral science and it was
applied to young individuals involved in criminal activity.
Some of the lapses
discussed in the Probation Law Act of 1958 are that the judges don't wait for
the report of the probation officers while passing the sentence. Secondly, the
judges are prevented to make the social connection as their job and ethics
forbade them to do so due to which they have to rely on the information
forwarded to them by the probation officers. Sometimes the court may release the
person on probation who turns out to be a habitual offender therefore there is
no specific provision to counter that.
After doing a profound amount of research on "Probation and its sociological and
legal aspect" we found out that probation originated as a humanitarian endeavor
to provide a second chance to first-time and young offenders. Probationers were
expected to not only follow the law but also to act in a morally appropriate
manner. Officers aimed to provide moral leadership to help change probationers'
views and behavior. The probation system in India attempts to restore faith
among the offenders by letting them go back to society and live peacefully as
Written By: Shambhavi Shailendra
7th Semester, KIIT
School Of Law