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White Black Legal – International Law Journal · ISSN 2581-8503
“FROM PUNISHMENT TO REHABILITATION: A CRITICAL ANALYSIS OF REFORMATIVE PENOLOGY UNDER THE NEW CRIMINAL LAWS IN INDIA”
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Abstract
“FROM
PUNISHMENT TO REHABILITATION: A CRITICAL ANALYSIS OF REFORMATIVE PENOLOGY UNDER
THE NEW CRIMINAL LAWS IN INDIA”
AUTHORED BY - DAYA
PRAJAPATI[1]
ABSTRACT
This
study critically analyzes the paradigm shift in Indian criminal jurisprudence
from the enactment of Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha
Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) in 2023. India's criminal
justice system for more than a century had been under the colonial influence of
colonial codes, namely the Indian Penal Code, the Code of Criminal Procedure
and the Indian Evidence Act, which had introduced punitive penology, which was
based on punishment and retribution rather than rehabilitation. The new
criminal laws represent a conscious break with this tradition in substantive,
procedural and evidentiary provisions which include the concept of reformative
penology. The study contextualizes reformative penology to the theoretical
development of criminology, which is from Classical and Neo-Classical school to
modern reformative and restorative school. It calls attention to the fact that
community service is a new part of the BNS's "punishment" for offenders,
and to the fact that community service is in line with restorative justice
principles, which demand that those who are wronged return to society in some
positive way. BNSS adopts reformative principles through measures such as
undertrial release, plea bargaining, and digital justice, which help to tackle
systemic delays and the issue of overcrowding. The BSA modernizes evidentiary
law, including the recognition of electronic records, enhanced witness
protection and victim-centric provisions, to ensure fair trials and substantive
justice. The paper also looks at the constitutional and international aspects
of reformative penology, examining how these reforms fit in with Article 21's
commitment to dignity, the Directive Principles of State Policy which demand
humane justice and international conventions like the ICCPR, the Nelson Mandela
Rules, etc.
INTRODUCTION
Punitive philosophy has
always been the guiding principle of the Indian criminal justice system, as it
is derived from the colonial laws enacted by the Indian Penal Code, 1860 (IPC),
Code of Criminal Procedure, 1973 (CrPC) and Indian Evidence Act, 1872. These
laws adopted the classical school of criminology, which placed a focus on
punishment as a means of deterrence and retribution. In recent times, however,
the criminological world has also come to understand the relevance of
reformative penology that sees offenders as not only wrongdoers deserving of
punishment, but also as people who can be mended and re-integrated into
society. Such a change has been reflected in innovations in legislation, such
as the Probation of Offenders Act, 1958, which enabled courts to order an
offender to be released on probation of good conduct as an alternative to a
custodial sentence.[2]
The judiciary has given
rich voices to the concepts of reform in the Indian criminal jurisprudence. In
Mohammad Giasuddin v State of Andhra Pradesh, the Supreme Court has said “every
saint has a past, and every sinner has a future”, emphasising that punishment
has a therapeutic value, and that offenders should be treated as patients, not
irredeemable criminals.[3]
In Sunil Batra v Delhi Administration, the Court condemned solitary confinement
and custodial torture, reinforcing the constitutional mandate of humane
treatment of prisoners, because “prisoners have a fundamental right to live
under Article 21 of the Constitution”.[4]
In State of Gujarat v High Court of Gujarat, the judiciary has said that
“probation and parole are tools of reformation”, re-affirming the
constitutional requirement for humane treatment of prisoners.[5]
The year 2023 is a
landmark in the criminal justice system of India with the enactment of three
new criminal laws, namely Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS) and Bharatiya Sakshya Adhiniyam, 2023
(BSA).[6]
These laws supersede the IPC, CrPC and the Evidence Act respectively and
represent a paradigm change from punishment to rehabilitation. Restorative
justice principles are reflected in the BNS's community service punishment. The
BNSS provisions on expedited trials, plea bargaining, and release of
undertrials after completing 1/3 of the sentence, seek to solve the delays and
overcrowding in the jails. The BSA introduces modern amendments to the rules of
evidence, such as the acceptance of electronic and digital records, tougher
protections for witnesses and increased transparency of trial proceedings.[7]
It reflects a reformative
thrust similar to the United Nations Standard Minimum Rules for the Treatment
of Prisoners (Nelson Mandela Rules) adopted by the General Assembly in 2015
which emphasizes humane treatment and rehabilitation of prisoners, and India's
obligations under the International Covenant on Civil and Political Rights
(ICCPR), which guarantees the right to life, dignity, and fair trial.[8]
Although there have been
some normative changes, there are still some practical ones to face. The
overcrowding, poor medical facilities, vocational training and custodial
violence still pose threats to rehabilitative measures in prisons, whereas of
December 2023, there were 530,333 inmates against the official prison capacity
of 439,119, with nearly 75% being undertrials.[9]
The effectiveness of community service and probationary requirements requires
institutional capacity, judicial sensitivity and community acceptance. The
Scandinavian countries with their emphasis on rehabilitation have displayed
examples that reformative penology is possible if correctional facilities are
invested in and attitudes are changed.
Codification Under British Rule
The IPC, 1860 (Lord
Macaulay): IPC is the first comprehensive codification of the Indian criminal
law, which was drafted by Lord Macaulay. It was not to reform offenders, but to
make the punishment equitable and regular, and to secure uniformity and certainty
in punishment, thus consolidating colonial control. The classical school of
criminology was reflected in the IPC's imposition of imprisonment, fines, and
capital punishment as the main sanctions.[10]
The Code of Criminal
Procedure of 1898 (CrPC): This procedural code brought together the
investigative and prosecuting functions in the colonial magistrates and police.
It was focused on ensuring convictions at the fastest pace possible, at the
risk of defeating due process and rights of the accused.[11]
• Indian Evidence Act,
1872: The Act was enacted to codify the rules of evidence, introducing stricter
rules in favour of documentary and testimonial evidence, under the supervision
of the colonial regime. It increased the prosecutorial power and reduced the
discretion of the Indians.[12]
These laws, compiled together, established an
"incapacitation/deterrence" system that was state-oriented and
punitive.
Discipline in
action, a punitive approach to school discipline in practice
Prison System: Colonial
prisons were extremely severe and crowded; built to incapacitate, not
rehabilitate. The use of prison labour was exploitative in terms of pursuing
the interests of the Raj.[13]
Policing: Police Act 1861 established military police force whose purpose was
to arrest dissenters and keep the peace not to deter crime by involving
communities.[14]
Judicial Attitudes:
Colonial courts were more concerned with following the letter of the law and
provided little opportunity for discretion or foreshadowing’s of reformative
sentencing. This punitive attitude served to establish custodial violence,
extended detention, and hierarchical control, which carried over into
post-independence India.
Post-Independence
Continuities
Although the colonies
were independent, colonial structures were still entrenched: The IPC retained
its definition of substantive offences, including very few reformative
elements.
The CrPC (revised in
1973) continued to have adversarial system and police-centric investigation.
The Evidence Act remains the foundation for admissibility with very slightly
more flexible interpretation, but hardly a change in substance from colonialism.
Scholars point out that these legacies continue to give rise to punitive
penology, as seen in large numbers of people in custody, violence within that
custody and a focus on prison.[15]
Post-independence
Indian penology
Post-independence Indian
penology has shown a gradual shift from the punitive policy of the British rule
that consciously it is taken out from the colonial ways and the state adopts
the policy of reform and welfare. The change is reflected in the legislation
governing probation, the various Juvenile Justice laws passed over time and
prison reforms that aimed at making criminal justice more humane and in keeping
with the constitutional guarantees of Article 14, 21 and 39 of the Constitution
of India, and India's international commitments.
The Probation of
Offenders Act, 1958, one of the earliest reformative laws, gave the power to
the courts to release offenders on good conduct bonds, especially for first
time and minor offenders, thereby avoiding the stigma of imprisonment.[16]
Social Investigation Reports had to be prepared by probation officers, they
were to counsel offenders and they were to facilitate reintegration in society.
The ideology behind this was the reformative one that punishment should rectify
behavior, not inflict suffering. The Supreme Court has recognised probation as
a mechanism of reform and rehabilitation of the offenders in the case of Rattan
Lal v. State of Punjab, where it highlighted that the purpose of probation was
to reform the offenders and stop them from becoming hardened criminals.[17]
In parallel, India also
had a well-established juvenile justice system. At the same time, India was
also having a strong system for juvenile justice. The Juvenile Justice Act,
1986 was the first central legislation that differentiated between “delinquent
juveniles” and “children in need of care and protection” and focused on
institutionalization in special homes, education and vocational training, but
had been poorly implemented because of its underfunding and lack of trained
personnel.[18]
The Act, 2000 on Juvenile Justice (Care and Protection of Children) marked a
change that focused on rights, rather than the use of the word delinquent,
which was replaced by ‘juvenile in conflict with law', and abandoned or
orphaned children were included.[19]
The Act was influenced by the ratification of the United Nations Convention on
the Rights of the Child (UNCRC) in 1992.[20]
The Juvenile Justice (Care and Protection of Children) Act, 2015 also amended
the framework, making it controversial to allow juveniles aged between 16 and
18 to be tried in the adult courts, but subject to evaluation by the Juvenile
Justice Board, in response to the pressure from society after the 2012 Delhi
case of a gang rape.[21]
In the case of Salil Bali v. Union of India, which was decided by the Supreme
Court, it has affirmed child-centric justice by observing that juvenile justice
mechanisms are constitutional.[22]
Prison reform was also an
important issue in the post-Independence penology. Judicial activism supported
such reformative ideas as the promotion of vocational training, education, and
rehabilitation programmes, and the establishment of open prisons and aftercare
services as recommended by committees like the Mulla Committee (1980s).[23]
Sunil Batra v. Delhi Administration case has condemned solitary confinement and
custodial torture and has affirmed that prisoners have fundamental rights under
article 21. Sunil Batra v. Delhi Administration case also highlighted the need
for establishment of child friendly procedures. These cases paved the way for
constitutional protections of prisoners and emphasized the judiciary's role in
ensuring reformative penology.[24]
While these advances have
been made, issues remain. However, the National Crime Records Bureau (NCRB)
data in Prison Statistics India 2023 indicates that almost 75% of the prison
population is undertrial, highlighting systemic delays and the ineffectiveness
of rehabilitative measures.[25]
The pressures of overcrowding, violence, and poor infrastructure persist,
limiting the impact of rehabilitation efforts.
The reformative
orientation of the reform is supported by constitutional requirements. The
rights of the child are guaranteed under Article 15(3); Article 21 guarantees
dignity and humane treatment; and the Directive Principles including Article
39(e) and (f) guarantee protection of children from exploitation. India’s
reformative course has been influenced by these provisions alongside other
international standards such as the United Nations Standard Minimum Rules for
the Treatment of Prisoners (Nelson Mandela Rules),[26]
which provide international guidelines for the regulation of prisons. In
addition, with international standards like the United Nations Standard Minimum
Rules for the Treatment of Prisoners (Nelson Mandela Rules), 12, these
provisions have influenced the reformative course of India.
The Classical and
Neo-Classical schools of criminology represent two foundational stages in the
intellectual history of criminal law and penology. The Classical school emerged
in the eighteenth century during the Enlightenment, when thinkers such as Cesare
Beccaria and Jeremy Bentham sought to rationalize criminal justice systems that
had previously been arbitrary, cruel, and heavily influenced by superstition.
Beccaria’s On Crimes and Punishments (1764) argued that crime was the product
of rational choice, that individuals acted out of free will, and that
punishment should be proportionate, certain, and swift to deter future
offending.[27]
Bentham, in An Introduction to the Principles of Morals and Legislation (1789),
advanced utilitarianism, emphasizing that punishment should serve the greatest
happiness of the greatest number, thereby linking criminal sanctions to social
utility.[28]
Together, these thinkers established the Classical school’s central tenets:
crime is a rational act, punishment must be proportionate and codified, and
deterrence is the primary objective of criminal law.
The Classical school’s
influence was profound. It led to codified laws across Europe and colonial
territories, including the Indian Penal Code of 1860, which embodied
proportional punishment and deterrence.[29]
The emphasis on equality before the law meant that all offenders were to be
treated alike, regardless of social status. However, the Classical school was
criticized for its rigidity. It assumed that all individuals possessed equal
rational capacity and ignored factors such as age, mental illness, coercion, or
socio-economic conditions. It also overemphasized punishment, neglecting
rehabilitation and failing to explain impulsive or emotional crimes.
The Neo-Classical school
arose in the nineteenth century as a refinement of Classical principles. While
retaining the idea of rational choice, Neo-Classical thinkers acknowledged that
free will could be limited or constrained. They recognized that children, the
mentally ill, or those acting under coercion did not exercise the same rational
capacity as adults acting voluntarily.[30]
This school introduced mitigating factors into sentencing, allowing judges to
consider personal circumstances when determining punishment. The Neo-Classical
school thus emphasized equity rather than strict equality, tailoring punishment
to the offender’s condition. It also opened the door to rehabilitative
measures, suggesting that treatment or reform might be more effective than
punishment for certain categories of offenders.
The impact of the
Neo-Classical school was significant. It influenced the development of
probation laws and juvenile justice systems worldwide. In India, the Probation
of Offenders Act, 1958, reflected Neo-Classical ideals by allowing courts to
release first-time or minor offenders on probation rather than imposing
custodial sentences.[31]
Similarly, successive Juvenile Justice Acts (1986, 2000, 2015) embodied
Neo-Classical principles by recognizing diminished responsibility in juveniles
and emphasizing rehabilitation over punishment.[32]
Judicial pronouncements also illustrate this blending of Classical deterrence
with Neo-Classical reform. In Rattan Lal v. State of Punjab, the Supreme Court
emphasized that probation was intended to reform offenders and prevent them
from becoming hardened criminals.[33]
In Salil Bali v. Union of India, the Court upheld the constitutionality of
juvenile justice frameworks, stressing the importance of child-centric justice.[34]
Comparatively, the
Classical school insisted on fixed, proportionate punishment and absolute free
will, while the Neo-Classical school introduced flexibility, recognizing that
circumstances matter. The Classical school focused on deterrence, whereas the Neo-Classical
school balanced deterrence with rehabilitation. The Classical school’s
principle of strict equality before law was tempered by the Neo-Classical
emphasis on equity, considering age, mental health, and coercion.
In the Indian context,
both schools have left a lasting imprint. The IPC reflects Classical principles
of deterrence and proportionality, while probation and juvenile justice laws
embody Neo-Classical ideals. Together, they shaped India’s penal philosophy,
influencing colonial codes and post-independence reforms. Their relevance
continues under the new criminal laws of 2023, which attempt to balance
deterrence with rehabilitation by introducing community service, plea
bargaining, and victim-centric provisions.
Reformative
Theory: Foundations
The (reformative) theory
of punishment arose as an alternative to the retributive and deterrent
theories, which emphasized suffering and fear. Reformative justice is based on
the belief that offenders are capable of change and improvement. According to scholars,
crime is frequently a result of socio-economic disadvantage, psychological
factors or lack of education and not a result of innate criminality, hence
punishment should address correction, rehabilitation and reintegration of
offenders to the society.[35]
Rehabilitation
Rehabilitation is the
principal of reformative justice. This includes education programmes,
vocational training, psychological counselling and de-addiction programmes in
correctional institutions, with the aim to provide skills and values to the
offender to enable them to live lawfully after release.[36]
In India, probation and parole are based on the rehabilitative principle which
permits the release of criminals from prison with supervision and assistance.
The Supreme Court in Mohd. Giasuddin v. State of A.P. made it clear that “every
saint has a past, every sinner has a future”, and thus punishment has
therapeutic value.[37]
Re-Socialization
Re-socialization means
the socialization of an offender by altering their attitude and behavior. This
includes community service, restorative programs and family supports.[38]
Re-socialization was also adopted in Juvenile Justice legislation, which
provides for the care, guidance and opportunities for children in conflict with
the law, and not punishment in the form of incarceration.[39]
Restorative
Justice
Restorative justice is a
form of complementary theory to reformative which emphasizes the repairing of
harm from crime. Restorative justice focuses on the victim-offender dialogue,
on community involvement and reconciliation, rather than on isolating offenders.[40]
Community service provisions in Bharatiya Nyaya Sanhita, 2023, bring forth the
restorative ideals as they demand that the offenders make a positive
contribution to society.[41]
BHARATIYA NYAYA SANHITA (BNS, 2023) AND REFORMATIVE
PENOLOGY
The Bharatiya Nyaya
Sanhita, 2023 (BNS), which supersedes the erstwhile Indian Penal Code from
1860, is a milestone in the criminal law reform in India. The IPC for more than
160 years reflected the colonial punitive philosophy, with a focus on deterrence
and retribution. The most significant development is the formal acceptance of
community service as punishment – something that differs significantly from the
traditional methods of sending people to jail or fining them.[42]
This is especially important in India where prisons are often overcrowded and
there is a high number of undertrial prisoners which makes it difficult to
carry out the tenets of restorative justice.[43]
Community service helps to reduce recidivism and reintegration and allows the
diversion of minor offenders from prison.
The BNS also strengthens
and streamline victim-centred provisions, particularly in the context of
offences against women and children; in doing so, it reflects the
constitutional mandate for dignity, protection and rehabilitation, as well as
the Direction Principles of the Constitution which advocate for humane justice.[44]
Strict measures are in place against sexual offences, trafficking and
exploitation, which is a combination of deterrent measures against the most
serious crimes and alternative ways to punish less serious crimes. This balance
reflects a subtle philosophy of BNS, which acknowledges that there are not all
bad people, and that rehabilitation is a moral and pragmatic imperative.
The other reformative
aspect of the BNS is the organized crime and terrorism. The law maintains the
drastic measures needed to protect society from the most serious of offences,
while at the same time providing opportunities for plea bargaining and community-based
sanctions in the right case, ensuring that offenders who can be remediated will
not be denied that opportunity.[45]
Jurisprudence grounded in
the reformative thrust of the BNS can be found in Supreme Court statements. In
Mohd. These judgments not only established the norm of rehabilitative penology
but also extended the scope of Article 21 to protect prisoners from custodial
torture and solitary confinement, as in the case of Giasuddin v State of A.P[46]
and in Sunil Batra v Delhi Administration.[47]
In comparison, the
community service has been introduced in India and its adoption is in line with
the global trend. The Scandinavian countries like Norway provide education,
training and reintegration with humane approach and has very less reoffending rate.[48]
European countries like Scandinavian countries, Norway emphasizes humane
treatment, education and reintegration which reduces recidivism rate than
short-term custody. The BNS' approach is community service with a focus on
creating the same kind of success in India, but with obstacles like
infrastructure, supervision and social acceptance.
Critics say that
community service might turn out to be tough in India because of substandard
probation facilities. Furthermore, the number of probation officers per
prisoner is extremely low, and there are concerns about the effectiveness of
supervision, while the stigma attached to the presence of offenders in society
could affect the reintegration of offenders, thus affecting the effectiveness
of re-socialization.[49]
The judiciary is also very important and judges should strike a balance between
deterrence and reformative values, especially in regard to repeat offenders and
serious crimes.
But the BNS is a new
paradigm in Indian penology. It incorporates within substantive law reformative
measures that are a radical shift away from punitive colonial legacy. It is a
reflection of constitutional values of dignity and humane treatment, is in line
with international standards including the Nelson Mandela Rules,[50]
and addresses current issues of overcrowded prisons and systemic delays. The
enactment of BNS is a historic step towards establishing a criminal justice
system that is more humane and more effective at deterring crime, but it will
take time to see the full impact of the new law.
BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS, 2023) AND
REFORMATIVE PENOLOGY
The Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) is one of the most important procedural changes
in the Indian criminal justice system, which is implemented with the intention
of replacing the Code of Criminal Procedure, 1973 (CrPC). The CrPC had faced
criticism for decades for its rigidity, its colonial past and the emphasis it
placed on the state and its procedures over individual rights, and for its
delays. The BNSS, which will come into force on 1st July 2024, aims to
modernise criminal procedure and to incorporate reformative penology into the
very fabric of its investigation, trial and sentencing system, rather than
adhering to the punitive colonial system.[51]
The BNSS explicitly
tackles the issue of overcrowded prisons, a serious problem in which almost
three-fourths of the prison population consists of undertrials, by providing
for their mandatory release after serving one-third of the maximum sentence
imposed on the crime.[52]
The constitutional guarantees under Article 21, which safeguards the right to
life and to personal liberty, are operationalized by the BNSS.[53]
The provision is an expression of reformative penology, as the failure to
convict does not only have a negative impact on human dignity, but also on the
rehabilitative capacity of the offender. It also is in sync with the Supreme
Court rulings, including Hussainara Khatoon v. State of Bihar, which
highlighted the right to a speedy trial as a fundamental right.[54]
Plea bargaining mechanism
was another reformative innovation in BNSS which came into India through the
amendments of CrPC in the year 2005, though it failed to gain much traction as
it faced issues of procedural complexity and awareness.[55]
The BNSS streamlines and extends plea bargaining, promoting negotiated justice
to decrease the trial backlog and provide rehabilitative opportunities for
offenders. Plea bargaining is an example of restorative justice in practice
because it enables offenders to acknowledge guilt, to make a restitution and to
not become part of an extended litigation process. It also saves the courts the
strain of having to deal with less serious crimes.
These measures improve
accessibility, transparency and efficiency by introducing digital justice
mechanisms such as videoconferencing for trials and provisions for Zero FIR and
e-FIR filing.[56]
The BNSS allows victims to file an FIR online and the trials to be conducted
without their personal presence, thereby minimizing the procedural hurdles and
empowering the marginalized community. Digital justice also promotes
re-socialization, as it reduces the shame of entering the real court and
enables offenders to attend court remotely.
A major change that has
happened is the focus on victim-centered justice. The BNSS requires that
victims be notified of bail applications, plea negotiations, and court hearings
to advance the restorative justice ideals that place victims as key players at
the heart of the criminal justice process.[57]
It is ensuring justice is not only state-based but is also responsive to the
victim of a crime. Involving victims in reconciliation and strengthening the
legitimacy of the justice system.
The BNSS also bolsters
measures to protect the safety and dignity of witnesses, as credible testimony
is a key element of a fair trial and restorative justice.[58]
The law ensures the safety and dignity of witnesses to build trust in the
system and aid in restorative justice. Witness Protection in its indirect way
also contributes to Rehabilitation because if the trials are fair and
transparent, the offender is more likely to accept responsibility.
The BNSS's focus on
undertrial release and plea bargaining, on the other hand, is more like the
rest of the world in comparison to India. Plea bargaining in the United States
accounts for nearly 90% of criminal convictions, shortening the delay in court proceedings
and enabling negotiated justice, while in European jurisdictions undertrial
release is strictly enforced to avoid overcrowding and human rights violations.
These international practices are reflected in the BNSS, but the poverty,
illiteracy and lack of infrastructure must be overcome in the context.[59]
Some critics have said
that the reformative aspects of the BNSS could be problematic when it comes to
implementation. Monitoring systems should be in place for the release of
undertrials to ensure they are not misused. Victims can object to plea bargaining
if they see it as being lenient. The issues of concern include privacy, data
security, and digital divides as they relate to digital justice. Judicial
attitudes are also very important because courts will need to weigh on the need
to deter as well as rehabilitate, especially in serious cases.[60]
BHARATIYA SAKSHYA ADHINIYAM (BSA, 2023) AND
REFORMATIVE PENOLOGY
The Bharatiya Sakshya
Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act of 1872, is a
complete paradigm shift in the evidence law of India. The colonial Evidence
Act, which for more than one hundred years had ruled admissibility and proof,
imposed strict requirements on documents and witnesses, especially working to
the detriment of marginalized groups and not considering technological
developments. The modernisation of the evidentiary rules that the BSA will
bring in from July 2024 is not only procedural, but also reformative
penological, as it aims to ensure fair trials, the protection of dignity and
the possibility of restorative justice.[61]
It is one of the greatest
innovations of the BSA to have formalized electronic and digital evidence.[62]
These documents were the most common modes of proof used in the colonial era.
With today's technology, however, crimes are more often committed through the
use of electronic communications, digital transactions and cyber activities.
The BSA explicitly acknowledges electronic records, which improves transparency
and credibility and makes justice more in line with today. This reform also
helps with rehabilitation as it eliminates wrongful convictions and brings
offenders to justice based on evidence and not on procedural technicalities.
The BSA also enhances
witness protection systems, as good evidence is crucial to the administration
of justice and for the trust of the public to the justice system.[63]
Witness intimidation has long plagued the criminal justice system in India,
leading to acquittals, and reducing public confidence in the justice system.
The BSA ensures that witnesses are safe and treated with dignity, in turn,
increasing the trust in the system and in restorative justice. Witness
protection also contributes to rehabilitation (indirectly) through the
increased likelihood of an offender's willingness to accept culpability for the
offence, when trials are conducted fairly and transparently. It is also in line
with the Supreme Court decisions, including Zahira Habibullah Sheikh v. State
of Gujarat, which highlighted the core of criminal justice as a fair trial.[64]
The BSA also places a
focus on a victim-centered approach to justice, with the law requiring the
victim to be advised of the trial process, the development of the evidence, and
the rights of the victim.[65]
This provision is in line with restorative justice ideal by making the victim a
key stakeholder in the criminal process. It makes justice not just a state
affair, but also a crime-affected peoples' affair. Involving victims helps to
build reconciliation and strengthen the legitimacy of the justice system.
The BSA also modernizes
the rules of admissibility and relevancy, which simplify the procedures and
eliminate technical hurdles, thus bringing trials back on track by
concentrating on substantive justice.[66]
This reform will encourage rehabilitation by reducing the time period between
charges and sentences, the number of time individuals remain in prison, and the
speed at which cases are resolved. It also embodies constitutional guarantees
under Article 21 that provides for the right to speedy trial.
In contrast with this,
the BSA places greater weightage on electronic evidence and witness protection,
which is in sync with the international trends. The European jurisdictions
include provisions of the evidentiary law, which have been victim-oriented, and
witness protection programs are robust in the United States. The BSA is
informed by these international practices, but challenges like digital divides,
privacy issues, and infrastructural problems need to be overcome.
Some critics say the
provisions of the BSA to reform the industry could have trouble getting
enforced. Strong technology, staff training, and protection against
unauthorized access and modifications must be in place to handle electronic
evidence. Witness protection requires money and institutional strength, both of
which are lacking in India. Sometimes, traditional actors of the legal system
may disagree with the participation of victims, considering criminal justice as
a state-oriented system. The attitudes of the judges are also important, as
they must strike a balance between deterrence and rehabilitation, especially in
cases of serious offenses.[67]
The BSA is still,
however, a paradigm shift in Indian evidentiary law. It puts reformative
measures at the heart of the rules of proof, and thereby, it takes a clear step
away from the colonial legacy of punishment. It embodies the constitutional
principles of respect for dignity and humane treatment; it is consistent with
international human rights instruments, namely the International Covenant on
Civil and Political Rights (ICCPR);[68]
it addresses current issues of digital crime, witness intimidation and victim
marginalization. The BSA will be successful if it is well designed, has jurists
who are sensitive, and is accepted by the community, but its creation is a
historic milestone in the development of a criminal justice system that is both
deterrent and humane.
CONCLUSION
The
Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 and
Bharatiya Sakshya Adhiniyam 2023 provide the turning points in the development
of the penal system and criminal law in India. India's criminal justice system
had been ruled by the colonial codes, which were based on the principles of
deterrence, retribution and state control for over 150 years. These laws
embodied the Classical criminology theory which stressed on punishment as a way
of maintaining order and fear. They gave uniformity and predictability,
however, they were unable to handle the complexities of human behavior,
socio-economic realities of Indian society and the values of dignity and
justice which blossomed post-Independence. The new criminal laws are
purposefully rooted in a different tradition, one that moves away from
punishment and towards the reformative tenets of penology, in substantive law,
procedure, and evidence.
The BNS establishes community service as a legitimate
punishment, a concept that reflects the principles of restorative justice in
asking offenders to positively contribute to society instead of languishing in
prisons. This innovation is a recognition that imprisonment can keep minor
offenders locked-up and keep them in the cycle of crime and stigma. The BNS
helps to decrease recidivism and reintegration, and also helps to reduce
overcrowding in prisons by sending such offenders to community-based sanctions.
The BNS has also imposed a tough punishment regime for serious offences
including terrorism and sexual violence while also emphasising rehabilitation.
This dual approach reflects a subtle philosophy that recognises the need for
both society's protection and opportunities for the transformation of the
offender.
The BNSS implements reformative principles in the
criminal process. Its directive on mandatory release of undertrials who have
served one-third of their maximum sentence directly tackles the issue of the
prolonged pre-trial detention, which has been a recurring issue in India,
threatening the constitutional rights of liberty and fair trial. The BNSS will
improve plea bargaining provisions and integration of technology in justice
processes like e-FIRs and video conferencing to curb delays, increase access and
empower victims. These measures are a departure from the state-centric approach
to justice to a more participatory, victim-sensitive and rehabilitative
practice. The BNSS thus lives by the principle of reformative penology whereby
the process itself is a means to dignity, efficiency, and fairness.
The BSA comes up to date in the realm of evidentiary
law, including recognition of electronic records, enhancement of witness
protection, and inclusion of victim-centered provisions. These changes will
make trials fair, transparent and relevant to the modern world of digital crime
and intimidation of witnesses. The BSA promotes trust in the justice system and
supports restorative justice by safeguarding witnesses and supporting victims.
It is open to substantive fairness rather than being rigid in form; it focuses
on the substantive rather than the procedural, and it is truly aimed at reform,
not at merely establishing guilt.
The three codes collectively show a comprehensive
approach of reformative penology. Emphasis is placed on rehabilitation:
community service, probation and parole. Digital justice, victim-offender
mediation and community-based sanctions promote re-socialization. All
provisions towards victims, plea bargaining, and reconciliation are based on
the principles of restorative justice. These changes bring India in line with
international norms like the Nelson Mandela Rules, ICCPR and are also in
accordance with the constitutional provisions under articles 14, 21 and 39.
Yet, challenges remain. The effectiveness of the
reformative penology under the new laws will rely on well-developed
infrastructure, well-trained staff, and acceptance within society. There are
limited probation officers, prisons are overcrowded, and there is stigma in
society towards offenders. Attitudes of judges need to change to ensure that
the balance is struck between deterrence and rehabilitation, especially in
serious crime cases. Both digital justice and plea bargaining is a cause for
concern with regard to digital divides and privacy issues, and victims may
reject plea bargaining as soft justice. The problems highlight that the
reformative paradigm of penology cannot be implemented by legislation alone,
and calls for a long-term institutional effort and cultural shift.
Thus, even with these challenges, the new criminal
laws are a historic paradigm shift. They are swiftly breaking free from the
shackles of colonial punishments and moving toward a system that is punitive
but fair. They embody the constitutional principles of dignity and humane
treatment, are aligned with good practice internationally and address emerging
issues related to digital crime and overcrowded prisons. When done well, they
can revolutionize the Indian criminal justice system, making it efficient, fair,
humane and rehabilitative.
To sum up, reformative penology under the new criminal
laws of 2023 represents a vision of justice that is forward-looking, humane and
inclusive. It acknowledges that crime is not just a law violation but a social
dysfunction which needs correction, reconciliation and reintegration. The new
laws placed rehabilitation, re-socialization and restorative justice into
substantive, procedural and evidentiary arenas, thus providing the basis for a
transformative criminal justice system. They are legal reform and moral
principles and values of creating a society that is not one of vengeance, but
one of healing; not one of suffering, but one of change; not one aimed at the
protection of society, but one aimed at the restoration of harmony.
[1] Assistant Professor of Law, School
of Law, Maharaja Ganga Singh University, Bikaner
[2] Probation of Offenders Act, No. 20
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[3] Mohammad Giasuddin v. State of
Andhra Pradesh, AIR 1977 SC 1926, (1977) 3 SCC 287.
[4] Sunil Batra v. Delhi
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[5] State of Gujarat v. High Court of
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[6] Bharatiya Nyaya Sanhita, No. 45 of
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[7] Bharatiya Nagarik Suraksha
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[8] G.A. Res. 70/175, United Nations
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[9] National Crime Records Bureau,
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[11] Code of Criminal Procedure, No. 5
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[17] Rattan Lal v. State of Punjab, AIR
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[19] Juvenile Justice (Care and
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[20] Convention on the Rights of the
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[21] Juvenile Justice (Care and
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[23] Government of India, Ministry of
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[24] Sunil Batra v. Delhi
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[25] National Crime Records Bureau,
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[26] G.A. Res. 70/175, United Nations
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[27] Cesare Beccaria, On Crimes and
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[28] Jeremy Bentham, An Introduction to
the Principles of Morals and Legislation (1789).
[29] Indian Penal Code, No. 45 of 1860,
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[30] Roger Hopkins Burke, An
Introduction to Criminological Theory (5th ed. 2018).
[31] Probation of Offenders Act, No. 20
of 1958, India Code (1958).
[32] Juvenile Justice (Care and
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Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code
(2016).
[33] Rattan Lal v. State of Punjab, AIR
1965 SC 444.
[34] Salil Bali v. Union of India,
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[38] Probation of Offenders Act, No. 20
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[39] Juvenile Justice (Care and
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Rehabilitation: A Human Rights Analysis of the Reformative System, Legal
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U.N.T.S. 3.
[42] Bharatiya Nyaya Sanhita, No. 45 of
2023, Gazette of India (Dec. 25, 2023).
[43] Parvatkar Krishna Rishikesh &
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[44] Abhilash Sontake, The Bharatiya
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[45] Id.
[46] Mohd. Giasuddin v. State of A.P.,
AIR 1977 SC 1926.
[47] Sunil Batra v. Delhi
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[48] Roger Hopkins Burke, An
Introduction to Criminological Theory (5th ed. 2018).
[49] National Crime Records Bureau,
Prison Statistics India 2023 (Ministry of Home Affairs, 2025).
[50] G.A. Res. 70/175, United Nations
Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)
(Dec. 17, 2015).
[51] Bharatiya Nagarik Suraksha
Sanhita, No. 46 of 2023, Gazette of India (Dec. 25, 2023).
[52] Id. § 479.
[53] National Crime Records Bureau,
Prison Statistics India 2023 (Ministry of Home Affairs, 2025).
[54] Hussainara Khatoon v. State of
Bihar, AIR 1979 SC 1369.
[55] Bharatiya Nagarik Suraksha
Sanhita, No. 46 of 2023, Gazette of India (Dec. 25, 2023).
[56] Id. §§ 173, 530.
[57] Id. § 530(2).
[58] Id. § 530(3).
[59] Roger Hopkins Burke, An
Introduction to Criminological Theory (5th ed. 2018).
[60] International Covenant on Civil
and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[61] Bharatiya Sakshya Adhiniyam, No.
47 of 2023, Gazette of India (Dec. 25, 2023).
[62] Id. § 65B.
[63] Id. § 114A.
[64] Zahira Habibullah Sheikh v. State
of Gujarat, (2004) 4 SCC 158.
[65] Bharatiya Sakshya Adhiniyam, No.
47 of 2023, Gazette of India (Dec. 25, 2023).
[66] Id. §§ 5–11.
[67] Federal Rules of Evidence, Rule
803(6), U.S. Code (2023).
[68] International Covenant on Civil
and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
How to Cite This Article
DAYA PRAJAPATI, “FROM PUNISHMENT TO REHABILITATION: A CRITICAL ANALYSIS OF REFORMATIVE PENOLOGY UNDER THE NEW CRIMINAL LAWS IN INDIA”., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. 4, Issue 1, September 2026, pp. 507-526, DOI Link: https://www.doi-ds.org/doilink/09.2026-46754573/“FROM PUNISHMENT TO REHABILITATION: A CRITICAL A. Available at: https://www.whiteblacklegal.co.in/public/details/from-punishment-to-rehabilitation-a-critical-analysis-of-reformative-penology-under-the-new-criminal-laws-in-india
Author & Publication Record
Authors: DAYA PRAJAPATI
Registration ID: 107076 | Published Paper ID: WBL7076
Year: Sep- 2026 | Volume: 4 | Issue: 1
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 507-526
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