On 27 June 2020, the National Constitution Society along with the Centre for Law and Policy Research will organise a webinar on Prisoners & the Pandemic: Health, Safety & the Constitution. We suspect that the discussion will touch upon larger questions related to the criminal and prison system in India. Leading up to this event, we thought it would interesting to see any of the Historical Constitutions engaged with similar themes and in this brief, we look at one of them: the Gandhian Constitution of Free India 1946.
The Gandhian Constitution dedicated a separate chapter/section to ‘Crime and Punishment’. It claimed that ‘in the past, crime was treated either with violent punishment or with overﬂowing sentimentality’. It noted the world had started to think of crime as an outcome of society and not biology, and pointed out specific causal factors like poverty, unemployment, inadequate education. The solution to crime laid in economic and social structures, and not the individual.
It recognised that the eradication of social and economic problems would not completely eradicate crime and therefore ‘Free India will also have to tackle crime, award punishments and maintain prisons...' It advocated for a reformative prison system rather than a retributive one, which it felt ‘convicted prisoners harden them into incorrigible criminals.’.
The Gandhian Constitution seems to have been smitten by the Bolshevo Reformatory colony and proposed as a potential prison system model that India could adopt. It quoted, at length, a description of the Bolshevo system from ‘Contemporary Social Problems’ by Harold Phelps: in the Bolshevik colony, there were no walls or gates, inmates were put to productive work, and enjoyed the freedom to talk and engage in recreation etc. The book argued that a prison system along these lines would allow prisoners to realise that ‘a life of regulated industry and recreation, with utmost practical freedom, is more pleasant than a life of crime and beggary’.
The Gandhian Constitution further argued that ‘criminal law should be short and simple. Criminal Law shall be rendered as short and simple as possible. Complexity of Laws tends to promote crimes and criminal mentality.’
Evidently, the Gandhian vision for the spirit and structure of the Indian criminal justice system was way ahead of its time - some would argue even for 2020. The COVID-19 pandemic has brought the predicament of prisoners into the spotlight world over. It would interesting to see if this develops into a larger conversation around reforming criminal justice systems - one that transcends the COVID-19 context.
Historical Constitution: Gandhian Constitution of Free India 1946
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