Incorporating Gandhian ideals for a cathartic approach towards punishment

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Vageshwari Deswal


Punishment is the standard response to crime, but punishment to the offender does not necessarily translate into justice for the victim. Focus on punitive approaches deepens the chasm instead of bridging the gap. Justice lies in undoing the harm, repairing the loss, making the victims regain their lost sense of security and imparting a closure to the unfortunate event.

Restorative justice encourages the Gandhian values of Ahimsa and Satyagraha. Adopting non- violent and peaceful methods of conflict resolution and seeking the truth because only truth will endure. Remembering Mahatma Gandhi on his 150th birth anniversary, we cannot help but marvel at his ideology- ‘Be the change that you want to see in the world’.

Our criminal justice system is largely focused on the offender. It views crimes as wrongs against the state, where offences are violations of rules prescribed by the State.

Thus, the system holds the offender accountable by punishing him. We have elaborate rules regarding apprehension, trial and punishment of offenders, whereas the victim’s role is that of a mere witness. The victim has no say in sentencing or pardoning. The victim feels alienated and frustrated at not being a part of the very process that is supposedly meant to avenge the wrong done. In fact, lack of compassion within the system reinforces victimhood. The sole focus of the system is on finding someone to place the blame upon and then punishing that person. There is another party affected that the criminal justice system doesn’t take note of- the offender’s family. They are also disturbed, but their pain is invisible to the victim and society who refuse to acknowledge their suffering or consider theirs as too trivial in comparison to the victim’s loss.

Crimes have a physical/psychological impact on not only the victim but also their friends, circles connected with them and the overall community. Under restorative justice, crimes are perceived as wrongs against the victim as well as the community. The focus is on the private dimensions of a public wrong by limiting the role of State to that of a facilitator. The offender is made to accept responsibility for the wrong done by him and is required to make amends by repairing the harm resulting from his deeds. The one affected by the crime i.e. the victim plays a key role and has a significant say in restitution.

Restorative justice is based on the Gandhian premise that forgiveness is the attribute of the strong. The focus of the system is to heal. Towards this end, questions are asked, answers sought, problems solved, conflicts resolved and the harm caused is repaired. The basic tenet of restorative justice is to adopt a restorative approach by attempting to find out what happened. Next is to find out what needs to be done, to undo the resultant damage and then get it done. In doing so, they repair the harm; restore the human worth and dignity; reconcile the accused and victim and reintegrate the offender with mainstream society. Restorative justice involves the families of the victims as well as offenders in an attempt to create an atmosphere where the offender can be accepted back in society.

Restorative justice starts when the accused accepts. Then, the typical responses vary from feelings of guilt, remorse, shame, seeking pardon, willingness to make amends and in some cases a callous disregard for the consequences of their behaviour by an attitude that proclaims ‘couldn’t care less’.

The main stumbling block to restorative justice is that victims usually have hard feelings against offenders. They may not want to meet the offender, then it is very difficult to make them talk. Some interface between the offender as well as the victim is essential to restorative justice. Next, come deliberations. The process needs time, experts and facilitators.

Restorative justice is conducive to victim’s rights in more ways than one. Once the accused apologizes, there is some solace given, even if the victim doesn’t accept the apology. Restorative justice needs to strike a balance between control and support. When the system punishes an individual, it decimates his existence in more ways than one. For example, a person is imprisoned for two years but blacklisted for his entire lifetime. He becomes ineligible for government jobs forever. Restorative justice is an empowering process, where both the offender as well as the victim gets an opportunity at putting a bad episode behind them and moving on with their lives. It gives the offenders an opportunity to repent, make amends, rectify their wrongs and expiate. It attempts to heal through a process of reconciliation leading to offender’s acknowledgement of guilt coupled with the willingness to repair and reform; satisfaction to the victim that they have been heard and avenged; and restoration of harmonious relationships within the community.

Restorative justice focusses on building relationships. One feels greater shame in the presence of those whom he loves or values. Thus, those who value relationships seldom become problematic. So if we can work on that aspect of an offender’s personality, there are greater chances of his reform than one could expect while imprisoning him with other offenders, which has higher chances of hardening him. The magical ingredient is building relationships that can reduce crimes and recidivism. Restorative justice helps to transform people, reduce delinquent behaviour and in the process create stronger and safer communities. This encourages reporting- people own up their responsibility towards wrongs as they can get a chance to undo the harm instead of punishment. But, the question is – Can we presume that every offender is vulnerable to relationships?

Restorative justice is a participative, consensual, inclusive and collaborative effort towards expeditious resolution of disputes. However, many people perceive this as a soft and lenient way of dealing with crimes and recommend that it should be restricted to petty offences. Still, others warn against overselling of restorative justice as being cheap and easy, as that would be misleading. People who are working in this field and have analysed it deeply caution that restorative justice is a very demanding process and it is not easy for the parties to come face to face.

Sometimes there are a large number of victims of a single crime which makes face to face interaction impossible. Then, there are people who need to be kept out of the restorative system e.g repeat offenders, hardened criminals. Another concern is regarding operationalization of the concept- which areas it can be applied to, at what stage of criminal proceedings can it be permitted etc. A major impediment to its implementation is the shortage of qualified personnel, experts and trained facilitators. Practitioners of restorative justice do not accept any such limitations and believe that it can be applied to any area and need not be confined to petty offences or juvenile delinquency. They also argue that it can be implemented at any stage of the proceedings- before the case reaches the court, during the trial, sentencing and even post-conviction.

India doesn’t have laws relating to restorative justice but we have pockets within the laws. An example here is compoundable offences listed under Section 320 of the CrPC, 1973. We mainly follow the adversarial system in which one party wins and the other loses; restorative justice is a win-win situation for all. This is a positive approach towards building self-reliant communities by the involvement of the concerned stakeholders and limiting the State’s absolute monopoly over violence- the worst byproduct of a social contract.

As Gandhi said, “Hate the sin, not the sinner”, restorative justice is all about embracing the power of ‘accepting and letting go’. Limitations notwithstanding, the concept of restorative justice needs to be understood and accepted as an adjunct to and not an alternative to the criminal justice system.

DISCLAIMER : Views expressed above are the author’s own.

via TOI Blog

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