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The mind of a judge

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Should punishment be seen as a deterrent, a retributive measure or as a reformative step? This question, much debated today, also bothered Jawaharlal Nehru, who served time in prisons. An extract from his musings from the book Patriots, Poets and Prisoners: Selections from Ramananda Chatterjee’s The Modern Review 1907-1947

The days when I practiced at the Bar are distant and far-off, and I find it a little difficult now to recapture the moods that must have possessed me. And yet it was only sixteen years ago that I walked out of the web of the law in more ways than one. Sometimes when I look back on those days, for in prison one grows retrospective and, as the present is dull and monotonous and full of unhappiness, the past stands out, vivid and inviting. There was little that was inviting in that legal past of mine and at no time have I felt the urge to revert to it. But still my mind played with the ifs and possibilities of that past—a foolish but an entertaining pastime when inaction is thrust on one—and I wondered how life would have treated me if I had stuck to my original profession. That was not an unlikely contingency, though it seems odd enough now: a slight twist in the thread of life might have changed my whole future. I suppose I would have done tolerably well at the Bar and I would have had a much more peaceful, a duller, and physically a more comfortable existence than I have so far had. Perhaps I might even have developed into a highly respectable and solemn-looking judge with wig and gown, as quite a number of my old friends and colleagues must have done.

Nehru was imprisoned nine times. These incarcerations shaped his ideas of punishment, jail terms, reforms and much more
Nehru was imprisoned nine times. These incarcerations shaped his ideas of punishment, jail terms, reforms and much more

How would I have felt as a judge? I have wondered. How does a judge feel or think? This second question used to occupy my mind to some extent even when I was in practice conducting or watching criminal cases…. That question, in a more personal form, has always faced me when I have stood in the prisoner’s dock and awaited sentence, or attended a friend’s trial for political offences. That question is almost always with me in prison, surrounded as I am with hundreds or thousands of persons whom judges have sent there…. The judge had considered the evil deed that was done and he had meted out justice and punishment as he had been told to do by the penal code. Sometimes he had added a sermon of his own, probably to justify a particularly heavy sentence. He had not given a thought to the upbringing, environment, education (or want of it) of the prisoner before him. He had paid no heed to the psychological background that led to the deed, or to the mental conflict that had raged within that dumb, frightened creature who stands in the dock. He had no notion that perhaps society, of which he considers himself a pillar and an ornament might be partly responsible for the crime he is judging.

He is, let us presume, a conscientious judge, and he weighs the evidence carefully before pronouncing sentence. He may even give the benefit of the doubt to the accused, though our judges are not given to doubting very much. But, almost invariably, the prisoner and he belong to different worlds with very little in common between them and incapable of understanding each other. There may sometimes be an intellectual appreciation of the other’s outlook and background, though that is rare enough, but there is no emotional awareness of it, and without the latter there can never be true understanding of another person.

Sentence follows, and these sentences are remarkable. As the realization comes that crime is not decreasing, and may even be increasing, the sentences become more savage in the hope that this may frighten the evil-doer…. The usual political sentence now for a speech or a song or a poem which offends the Government is two years rigorous imprisonment (in the Frontier Province it is three years) and a lavish use of this is being made from day to day; but even this seems trivial when compared with the cases of large numbers of those people who are kept confined for four or five years or more, indefinitely, without conviction or sentence….

Every year the various provincial prison reports complain of the increasing number of prisoners and the necessity of additional accommodation. The peak years, when the civil disobedience movement sent its scores of thousands to prison, become the normal years even without this special influx of political. Occasionally the difficult(y) is overcome by discharging a few thousand short timers before their time, but the strain continues.

…it does seem to me astonishing that any judge should imagine that by inflicting sentences he is reforming the offender.

The Central Prisons are full of ‘lifers’, prisoners sentenced for life, and others sentenced to long terms. Most of these ‘lifers’ come in huge bunches in dacoity cases and probably a fair proportion are guilty, though I am inclined to think that many innocent people are involved also, as the evidence is entirely one of identification. It is obvious that the growing number of dacoities are due to the increasing unemployment and poverty of the masses as well as the lower middle classes. Most of the other criminal offences involving property are also due to this terrible prospect of want and starvation that faces the vast majority of our people.

Do our judges ever realise this or give thought to the despair that the sight of a starving wife or children might produce even in a normal human being? Is a man to sit helplessly by and see his dear ones sicken and die for want of the simplest human necessities? He slips and offends against the law, and the law and the judge then see to it that he can never again become a normal person with a socially beneficial job of work. They help to produce the criminal type, so-called, and then are surprised to find that such types exist and multiply.

nehru-in-lawyer-dress

I wondered how life would have treated me if I had stuck to my original profession…. Perhaps I might even have developed into a highly respectable and solemn-looking judge with wig and gown….

The major offences lead to a life sentence of ten years or so. But the petty offences and the way they are treated by judges are even more instructive. The vast majority of these are buried in court files and get no publicity: only rarely do the papers mention such a case. Three such cases, taken almost at random from recent issues of newspapers, are given below:

  • Rahman was an old offender with 12 previous convictions, the first of which dated back to 1913. The present offence was one of theft of clothes valued at a few rupees. Rahman pleaded guilty and requested the court to send him to a reformatory or some such place from where he could emerge thoroughly reformed. The judge, who was the Judicial Commissioner in Sind, refused this request and sentenced him to seven years, adding: “If this seven-year sentence of hard labour does not reform you, God alone must come to your aid.” (Karachi: May 23, 1935.)
  • Badri who had four previous convictions, was sentenced to two years’ rigorous imprisonment under Sections 411/75 IPC for having dishonestly received a stolen cheddar (cloth sheet). (Lucknow: July 3, 1935.)
  • Ghulam Mohammad, an old offender, was sentenced to three years’ rigorous imprisonment for stealing one rupee by picking the pocket of a man. (Sialkot: July 15, 1935.)

These and similar sentences may be perfectly correct from the point of view of the Indian Penal Code but it does seem to me astonishing that any judge should imagine that by inflicting such sentences he is reforming the offender. Evidently the Judicial Commissioner in Sind had himself some doubts about the efficacy of his treatment for he hinted that God might be given a chance on the next occasion.

The great invasions of our prisons by middle-class people during the non-co-operation and civil disobedience movements had … a marked effect.

There they sit, these judges, in their courts, and a procession of unfortunates passes before them—some go to the scaffold, some to be whipped, some to imprisonment, to which may be added solitary confinement. They are doing their duty according to their abstract ideas of justice and punishment; they must consider themselves as the protectors of society from anti-social criminal elements. Do their thoughts ever go beyond these set ideas and take human shape considering the miserable offender as a human being with parents, wife, children, friends? They punish the individual but at the same time they punish a group also, for the ripples of suffering spread out and go far. Those who have to die at least die swiftly, the agony is brief. But the agony is long for those who enter prison.

“Behind the door, within the wall

Locked, they sit the numbered ones…”

Two years, three years, seven years stolen from life’s brief span—each year of twelve months, each month of thirty days, each day of twenty-four hours—how terribly long it all seems to the prisoner, how wearily time passes!

…I do hate the idea of punishment and especially “deterrent” punishment and all the suffering, deliberately caused, that it involves.

All this is very sad and deplorable no doubt, but what is the poor judge to do? Is he to wallow in a sea of sentimentality and give up sentencing offenders against the laws? If he is so soft and sensitive he is not much good as a judge and will have to give place to another. No, no one expects the judge to embrace every offender and invite him to dinner, but a human element in a trial and sentence would certainly improve matters. The judges are too impersonal, distant, and too little aware of the consequences of the sentences they award. If their awareness could be increased, as well as a sense of fellow-feeling with the prisoner, it would be a great gain. This can only come when the two belong to more or less the same class. A financier who has embezzled vast sums of public money will have every sympathy from the judge, not so the poor wretch who has picked up a rupee or stolen a sheet to satisfy an urgent need. For the judge and the average offender to belong to the same class means a fundamental change in social structure, as indeed every great reform does. But even apart from and in anticipation of that, something could certainly be done.

They (judges) punish the individual but at the same time they punish a group also, for the ripples of suffering spread out and go far.  

It was Bernard Shaw, I think, who suggested that every judge and magistrate, as well as every prison official, should spend a period in prison, living like ordinary prisoners. Only then would they be justified in sentencing people to imprisonment, or to governing them there. The suggestion is an excellent one although it may be difficult to give effect to it. I ventured to suggest it once to the Home Member and the Inspector-General of Prisons of the U.P. Government for their personal adoption, but they did not seem to favour it. At least one well-known prison official, however, has adopted it. This was Thomas Mott Osborne of the famous Sing Sing prison in New York. He trained himself by undergoing a term of voluntary imprisonment and, as a result of this, he introduced later on many remarkable improvements in the social rehabilitation and education of the prisoners.

Such a term of voluntary imprisonment will do a world of good to the bodies and souls of our judges, magistrates and prison officials. It will also give them a greater insight into prison life. But obviously no such voluntary effort can ever approach the real thing. The sting of imprisonment will be absent as well as the peculiarly helpless and broken feeling before the armed and walled power of the State, which a prisoner experiences. Nor will the voluntary prisoner ever have to face bad treatment from the staff. The essence of prison is a psychological background of having been cast off from society like a diseased limb. That will necessarily be absent. But with all these drawbacks the experience will be worthwhile and will help in making the administration of the criminal law more human and beneficial. The great invasions of our prisons by middle-class people during the non-co-operation and civil disobedience movements had indirectly a marked effect. As the prison-goers did not become judges or prison officials the direct effect was little. But a knowledge of prison conditions and a sympathy for the prisoner’s lot became wide-spread, and public opinion and the crusading efforts of some Congressmen bore substantial results.

I do not know whether I am over soft but I do not think I err on the musky and sentimental side. Other people and even many of my close colleagues have considered me rather hard. Mr. C. R. Dass once referred to me at a meeting of the All-India Congress Committee as being “cold-blooded”. Perhaps it all depends on the standard of comparison as well as on the fact that some display their emotions more than others. However that may be, I do hate the idea of punishment and especially “deterrent” punishment and all the suffering, deliberately caused, that it involves. Perhaps it cannot be done away with completely in this present-day world of ours, but it can certainly be minimized, toned down and almost humanized.

book-nehru

At one time I was strongly opposed to the death penalty and, in theory, my opposition still continues. But I have come to realize that there are many things far worse than death, and if the choice had to be made… I would probably accept a death sentence rather than one of imprisonment for life. But I would not like to be hung; I would prefer being shot or guillotined or even electrocuted; most of all other methods I would like to be given, as Socrates was of old, the cup of poison which would send me to sleep from which there was no awaking. This last method seems to me to be by far the most civilized and humane. But in India we favour hangings, and last year the official mind showed us the texture of which it was made by organizing public hangings in Karachi or somewhere else in Sind. This was meant to terrify would-be evil-doers. It turned out to be a huge mela where thousands gathered to witness the ghastly spectacle….

A friend of mine who became a High Court Judge had a ‘crisis of conscience’ when he had first to sentence a man to death. The idea seemed hateful to him. He overcame his repugnance, however, (he had to or else he would not have long continued in his job) and I suppose he soon got used to sending people to the scaffold without turning a hair…. A young English member of the Indian Civil Service had to attend hangings in the local gaol. At his first hanging, he told me, he was thoroughly sick and felt bad all day. But very soon the sight had no unusual effect on him whatever and he used to go straight from the execution to his breakfast table and have a hearty meal.

I have never seen a death sentence being carried out. In most of the gaols where I have lived as a prisoner executions did not take place, but on three or four occasions there were hangings in my gaol. These took place in a special enclosure, cut off from the rest of the prison, but the whole gaol population knew of it, perhaps because the unlocking of the various barracks and cells took place at a later hour on those mornings. I experienced a peculiar feeling on those days, an ominous stillness and a tendency for people to talk in low voices. It is possible that all this was the product of my own imagination.

And yet with all my repugnance for executions, I feel that some method of eliminating utterly undesirable human beings will have to be adopted and used with discretion….

 Almora District jail 1-9-1935.

Illustrations: Anthony Lawrence

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