“Hate the sin not the sinner”. – Mohandas Karamchand Gandhi

Lexically, the term ‘punishment’ means the penalty for transgressing the law. Reformative theory is one of the form/theory of punishment which has an objective to reform the behaviour of the criminal by replacing punishment through some alternatives. As per modern criminal jurisprudence, nobody is born as criminal; the criminal attitude of an individual is due to a mixture of social, economic and environmental conditions.

One of the alternatives is probation – a term i.e. derived from a Latin word ‘probare’ which means to test or to prove. Etymologically, probation means ‘I prove my worth’.

In recent times, the emphasis is on the reformation and rehabilitation of the offender as a self-sufficient and useful member of the society, without subjecting him to the deleterious effects of jail life. This relates to the measure of probation, which may be used by the courts as an alternative and is increasingly being used. If we follow the old age concept that relates to the problem of dependency of the offender, he/she may not be able to adjust with the society. Instead of this, there must be some reformative treatment measures in terms of guidance and rehabilitation for the prisoners. Some of the philosophers, who were in favour of the reformative theory of punishment, are Jermy Bentham, H.L.A. Hart, A.C. Ewing, etc.

Legal provisions of probation: The provisions of probation under Indian laws are envisaged under Section 360 of the Code of Criminal Procedure, 1973 and the Probation of Offenders Act, 1958. Briefly, Section 360 of the Code states that any person, not under twenty-one years of age, should be released on probation who has been convicted of an offence punishable with fine only or with imprisonment for a term of seven years or lesser. Any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life.

On the other hand, as per the provisions of the Probation of Offenders Act, 1958, mainly as per Section 4 which states that any person found guilty of committing an offence not punishable with death or imprisonment for life may be released on probation of good conduct. It is evident that the power to release on probation is wide under the Act instead of the Code because the provisions under the Act do not have any limitation regarding the age of offender and the same exists under Section 360 of the Code. Apparently, i.e. the reason Section 18 of the Act states that the Code shall cease to apply to the states in which the Act is brought into force. The maximum period for probation is three years.

The role of probation officers i.e. the job of administrative officers is very important in case of probation because the offenders are kept under their custody for reformation and rehabilitation. They play a very vital role as they are the ones who submit their reports to the court about the offender’s behaviour. Their report carries a lot of weightage.

The success of probation is entirely in the hands of the government and the resources it allots to the programmes. Various resources are needed to employ trained probation officers, to set up homes for those on probation and also for their training besides others.

Probation doesn’t mean that all the offenders should be released on probation. It is not the objective of probation at all. Jermy Bentham, a renowned philosopher who was in favour of reformative theory held that:

“It is very important to note that when an offender can be released on probation under Section 360 of the Code or under the Probation of Offenders Act, 1958 and it has not been done so by the court then as per Section 361 of the Code of Criminal Procedure, 1973, special reasons shall be recorded in its judgment for not having done so.”

To conclude, it can be said that the measure of alternative punishment i.e., probation and the objective of theory of reformative punishment would be achieved only if the judiciary and the administration work together. It would be of great benefit for a country like India, where the jails are often overcrowded, with frequent human rights violations which would harden the human inside a person. Probation is an affirmation of the human inside every being and it must be given importance. The reform and rehabilitation process have to be worked out in context of existing social conditions to achieve the ultimate objective to reclaim back those offenders to orderly society.