Punishment is the standard response to crime, at least when the crime is reported, but is justice the standard response too? “So today I look in the mirror, and I see an offender that wants to change.” says an offender at the concluding session of the Sycamore Voices, an initiative towards a revolutionary justice program. Restorative Justice is a system of criminal justice in which emphasis is placed on the rehabilitation of the offender while simultaneously reconciling with the victims and the society at large.
It is a system that promotes the Gandhian value of Ahimsa. It is all about a peaceful, non-violent form of conflict resolution. It believes that punishment, instead of bridging the gap, may deepen the chasm, whereas rehabilitation and reconciliation may result in undoing and repairing the loss, helping victims regain their lost sense of security, pride, and dignity, altering the mindset of the offenders and giving closure to the unfortunate event.
“Restorative justice operates on the ideas that we are not the worst things that we have done or the worst things that we have experienced,” Sujatha, founder of Impact Justice, a US-based non-profit organization that focuses on restorative justice, explains.
The criminal justice system that we have right now is largely focused on the offender. Viewing crimes as wrongdoings against the state, the system holds the offender accountable and punishes him/her. With elaborate rules and laws, the victim’s role is no more than that of just a witness. The victim, being the direct sufferer, has no say in the sentence or pardoning about something that he is most affected by. This may reinforce victimhood while the system tries to find someone to punish.
“It was this push towards more punitive measures that compelled the child rights community to look for alternatives because criminalization and increasing the punishment were not working,” says Nimisha Srivastava, head of the restorative justice program at Delhi-based Counsel to Secure Justice (CSJ).
The focus of the Restorative System is to heal what has been damaged. Towards the end, questions are asked, problems are solved, answers are sought and conflicts are resolved. The basic tenet of the scheme is to find out what happened, why it happened, and what can be done next to restore what has been lost. It involves the families of the victims and the offenders too to create an atmosphere of mutual understanding, acceptance, and forgiveness, issues that the current system is completely ignorant of. Families on both sides are disturbed too, but the current criminal justice system remains indifferent to their pain and to that of the society too, refusing to acknowledge their sufferings and considering them too trivial. Under restorative justice, crimes are considered to be wrong for the whole community too. The one affected the most by the crime, the victim, has a significant role in the restitution.
“Majority of them (survivors of child sexual abuse) said that their voices were not heard in the criminal justice system” reports Urvashi Tilak, research and systems change manager at Counsel to Secure Justice.
Here justice begins with the acceptance of the misdeed by the offender. The response then may vary from feelings full of shame, regret, guilt, remorse, apology, desire to make amends, and in some cases, of disregard and indifference too that goes parallel to ‘couldn’t care less’.
The main obstruction is that the victims sometimes have hard feelings against the offender. When they do not even want to see the offender, it becomes very difficult to make them meet and subsequently talk with the wrongdoer. But some interface is necessary, post which comes deliberation. The most important process, this needs time, facilitators, and experts besides regular monitoring. This justice system is conducive to the rights of the victims in more ways than one. Even if the apology is not accepted at first, there is definitely some solace, some relief to the victim. It is about striking a balance between cooperation and control. To make it easy, Restorative Circles are formed. They are basically an equalizer with no hierarchy and no one to judge and give equal opportunity to every person to speak. Other methods like Conferencing Method, where the facilitator plays a significant role in deciding who will speak when and the Family Group Method where the basic idea is to empower family support groups are also undertaken.
On one hand, where, in the current system of justice, the situation may be aggravated because the repercussions of the sentence may never end even after the convict has served his/her sentence, he/she is blacklisted forever, restorative justice aims to bring back the life as it was before the unfortunate event and moving on with their lives. The acknowledgment of guilt coupled with the willingness of the offender to change, undo, mend and transition, the satisfaction of the victims that they have been heard and avenged and so have been their families and ultimately, the reconciliation becomes phenomenally impactful and positive. One can definitely expect someone to change better and sooner with the help of someone he/she loves and values, instead of with other offenders while being disassociated with the outside world. This also encourages people to own up to whatever wrong they have done.
But even this system comes with its own problems too like every other thing out there. The system could be perceived as a lenient and easy to deal with escape option which could be misleading. While it is not easy for parties to talk in person, it is also very difficult to evaluate, oversee and monitor the whole process deeply, especially with the shortage of practitioners, guides, doctors, experts, and training facilitators. In cases where there are a large number of victims, where there are repeated offenders or hardened criminals, they might be some loopholes in this system.
The Indian Constitution does not have any laws relating to the restorative system. Although there are pockets within the law like compoundable offenses (where the complainant agrees to drop the charges against the accused given a bona fide compromise) listed under Section 320 of The Code of Criminal Procedure, 1973, they are only for petty crimes unlike that in the UK and the US where restorative processes can also be used in cases of heinous offenses.
Limitations notwithstanding, Restorative Justice is indeed a win-win situation, a positive and an inclusive approach towards the judiciary, an adjunct, and not an alternative to the criminal justice system we currently have.