Rethinking justice the restorative way

Upneet Lalli
Dy Director, Institute of Correctional Admn

THERE are many challenges that the criminal justice system in India faces. It is all about ‘the criminal’ where focus is on who did the crime and what punishment needs to be given. Can the problem of crime be simplified to just being the problem of the criminal? This somewhat myopic focus on punishing offenders negates the very needs of the victims, who remain a neglected lot in our justice system. Moving out of this maze of guilt and punishment can help achieve a different set of outcomes. The limitations and shortcomings of conventional criminal justice have led to a relook and re examination of the relationships between offenders, victims and the State in criminal cases. The idea of restorative justice has moved in many countries to the forefront of public discourse concerning crime and criminal justice.  

In India, about 61 lakh persons were arrested in 2016 (Crime in India) — 37.37 lakh under IPC offences and 23.92 lakh under special and local laws like the NDPS and the Arms Act. There were 3,38,954 crimes against women and 38,347 cases of rape were reported. Questions related to who was harmed, and what needs to be done to repair the harm also need to be in focus. The two main concerns of victims are justice and security. Are these effectively provided?  In India, we are seeing a growing body of deterrent laws that are focusing on increasing punishments, and an insatiable appetite for new laws and get-tough mantras. The state also has an obligation to understand the needs of victims, and also society.  Though victim compensation was added in the Code of Criminal Procedure, the support services available to crime victims are still negligible. Many a times, it’s difficult to trace the victims also. Many a case does not reach the logical end and closure, due to failure to support the victim at different stages of the criminal justice system. The whole process can become an unforgettable nightmare for some. Secondary victimisation at the hands of the criminal justice system is an unforgivable travesty. It makes the criminal and the criminal justice system partners in crime.

In the adversarial model, a major focus during the trial remains on trying to prove one’s innocence. So, the natural inclination is to deny, until the very end. There is just no incentive for the offender to “come clean” and say, “I actually did this.” This is also reflected in the few cases of plea-bargaining which was introduced with the hope that it would lead to reduction in undertrials in prisons. It still continues to remain at around 65 per cent since the last decade. There is also a belief that even if not proved guilty, let the person spend some time in prison as an undertrial. The miscarriage of justice is seen in the cases of those wrongfully convicted. 

The primary goal in restorative justice is to heal and repair the damage suffered by the victims, wider society, and indeed offenders themselves. Let us consider the harm to motor accident victim’s cases. Life is never the same again for the victims. Is justice merely putting the accused in prison or should there be something beyond mere punishment. A victim impact panel is a forum for victims of drunken driving incidents to share their experiences with convicted offenders under the order of a judge. With so many cases of drunken driving and accidents taking place in India, should we not consider having such an initiative here in our country? 

Restorative ideas and practices can be found in our traditional justice system like the panchayat system, wherein wise elders settled disputes and imposed community sanctions that helped. Then there is the imposition of tankhah on certain kinds of offenders in the Sikh community. The penalty usually consists of a kind of a community service performed by the offender in a congregation. The purpose is to restore the offender individually and socially into the community, followed by ardas. While celebrating the 550th birth anniversary of Guru Nanak, his three golden principles — kirat karna, naam japna and wand chhakna (honest work, prayers and sharing) — hold transformational relevance even for prison inmates.

Restorative justice reflects basic universal principles of truth and reconciliation endorsed by the United Nations in 2002 (UN Declaration of Basic Principles on the Use of Restorative Justice in Criminal Matters). Its processes create safer communities by transforming offenders and ensuring that the needs of crime victims are not ignored. Restorative justice can be introduced at various stages of the criminal justice process — pre-trial, during the trial and the post-trial stage.

In India, we could introduce it in some ways, as a part of plea bargaining, under the CrPC, and also while compounding of offences, under Section 320 of the CrPC. The victim-offender mediation programmes were among the initial restorative justice methods in the 1970s. The victims can tell a criminal how the crime has affected them, and it can be empowering for many to ask the person why he/she did it. Offenders can reveal the reason what incited them and have an opportunity to compensate the victim. While releasing a person under probation, this process could be incorporated and reparation made. Even in domestic violence cases, this could be an effective way to address the problem. 

The juvenile justice system should be neither punitive nor retributive. It should emphasize on prevention as a first priority. However, the focus is on deterrence. The use of restorative justice provides an opportunity to juveniles to address the harm done, and take responsibility for the offence. Innovative good practices around the world have not been considered in the new legislation.

Introducing restorative justice within prisons is adding a dynamic dimension to the static nature of prisons. I have frequently asked the prison inmates to consider how their offence has affected the victims, and also their own family. This gets them to realise how their family too suffers. The Sycamore Tree project, run in prisons globally, organises conversations between prisoners and surrogate victims — people who have been victims of crime, but not those committed by the particular offenders they are meeting with. To hear their stories, and to reflect together on how crime affects the lives of victims, can bring about change. Prisoners performing community service are all acts that strengthen ties between prison and community. Restorative outcomes like apology and amends to victims and community can be achieved with these prisoners. Repentance re-establishes ties between offenders and victims and moves them towards reconciliation.

It is time to consider having a justice system that heals victims of crime, and communities, while transforming the lives of offenders. It may seem impossible, until it is done. As Leonard Cohen’s memorable song goes, “There is a crack in everything, that’s how the light gets in.”