When social justice minister K K Shylaja wanted 'offender-free Kerala' to be taken up as the state's next big slogan, state police chief Loknath Behera was more amused than impressed. “I told my officers that if there were no crimes then what are we, the Police Department, for. Some of my officers asked me whether we will lose our jobs,” he said in jest.
Behera's officers have reasons to worry. If Kerala could nearly mirror the achievements of European countries in literacy, infant mortality rate, and life expectancy at birth, a land free of crime is not beyond the state. The Social Justice Department has set the ball rolling. It has begun a process to draw up a draft plan to achieve the goal of 'offender-free Kerala' in cooperation with the Police Department, reputed institutes like National Institute of Mental Health & Neuro Sciences (NIMHANS) and Tata Institute of Social Sciences (TISS), and Kerala State Legal Services Authority.
The Dutch shocker
The ideal is not Nordic countries (like Denmark, Finland, Iceland, Norway and Sweden), where jails are made to look like luxury homes. It is Netherlands, where jails are being shut down. The Dutch have in fact taken their social achievement to the level of showmanship by importing prisoners from neighbouring countries like Norway and Belgium to fill their fast-emptying jails.
Prof Vijayaraghavan, one of the country's leading criminologists and a TISS faculty, said that Kerala could adapt some of the things that Netherlands had done to bring down crime. One way the Dutch reduced their crime rate was by shifting the goalposts. They conveniently diluted a number of laws. “For instance, they decriminalised the consumption of drugs, and relaxed all kinds of drug-related offences,” Vijayaraghavan said.
Relaxing criminal laws will be unthinkable for the state. But it can strictly enforce existing laws so that lesser numbers are ferried to jails. Section 41 of the Criminal Procedure Act, for instance, states that the police should not arrest a person who has been picked up for an offense that will fetch him an imprisonment of less than seven years. This is generally not followed.
Freedom, with strings attached
Such offenders, experts say, should ideally be put up for probation. It is a system, which can be found in an almost similar form in Netherlands, that values reintegration than punishment. Legally, probation allows a person found guilty of a crime to walk free after executing a bond. He will also be under constant, but generally non-intrusive, supervision.
In fact, The Probation of Offenders Act, 1958, states that all persons found guilty of crimes that will not lead to life imprisonment or death can be put up for probation. “To admit this would be an embarrassment but probation is something that we police officers are unwilling to give a try,” said S Sreejith, IG Crimes.
The IG said that probation was an option that should be put to wide use. “Only 10 per cent of cases involving physical assault are premeditated. The rest, 90 per cent of them, are triggered by a person's medieval instinct or a false sense of machismo. It is easy to instill good sense in such people,” Sreejith said.
Badge of dishonour
He also wanted the word 'conviction' removed from the legal paperwork involved in such low-intensity cases. “To be convicted is to be scarred for life. It is a legal stamp that will mark out a person as a criminal for life. The chap most probably had done something in a moment of misjudgment. We don;'t have to make him live with this guilt forever,” Sreejith said. “Perhaps, in cases that can be put up for probation, we could think of using the world 'reprimand' or 'admonish',” the IG said.
Such men are also prey to the callous policeman, the IG himself said self-critically. “The criminal stamp on a person had emboldened police officers to unnecessarily foist more cases on him,” Sreejith said.
He spoke of a Muslim youth he had picked up in an inebriated state from a 'Bhajana Madom' in Kannur a decade ago. “The guy purposefully went to the RSS lair wanting to be killed,” the IG said. Few months earlier, while avenging the death of his elder brother, the youth had hurt the brother of the alleged killer. “This was the only crime he had committed in his life,” Sreejith said.
Even the injured person did not want to press the case, but the police insisted. “And in cases where we could not find the culprit, we made him the accused. Four such cases were slapped on this guy, and up to this day he is fighting these cases in court. When I found him that night at the Bhajana Madom, he had lost the will to live. Since he did not have the courage to take his life, in his drunken state he thought others might,” Sreejith said.
Bargaining power
Plea bargaining was the other method that could prevent more people from being dumped in jails. It is an arrangement between the prosecutor and the defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence. Therefore, cases do not reach the trial stage.
“Most European countries use plea bargaining effectively, after the prosecutor and defence lawyer make a thorough assessment of the case,” Prof Vijayaraghavan said. “But here, it were the under-trial prisoners who were forced to accept the plea bargain. These poor people who have no access to a good lawyer have no choice but to languish in jail for months and years. And then, in a state of desperation, they accept the plea bargain. This is unfair,” he said. Of the 7,929 prisoners in the state's 52 jails, 4,929 or over 62 per cent are under-trial prisoners. “The state should arrange high-quality legal aid for under-trial prisoners,” the criminologist said.
Where are the probation officers
However, for the number offenders in jail to come down and for probation to work, the system has to be streamlined first. At the moment, the state has only 44 probation officers, people deputed to re-integrate offenders back into the society.
To know why this number is laughably inadequate, munch on a statistic provided by the state police chief. “My Department files 6.5 lakh FIRs a year, and this is more than what Tamil Nadu, Karnataka and Andhra Pradesh together files in a year. Majority of them need not go to trial if there is proper intervention,” Loknath Behera said.
Reducing the number in jail has also become a necessity. “All our jails put together have space barely for 6,000 convicts. When I took the count yesterday, we had 7,929 people lodged in them,” DGP Sreelekha said.
