Towards restorative criminal justice | N.R. MADHAVA MENON
The way criminal justice is designed and administered today hardly serves any of the purposes for which it is set up: towards securing life and property. It does not deter criminals because of the delay and uncertainties involved in its processes and ridiculously ineffective punishments it imposes on those few who get convicted. It provides wide discretion to the police and the prosecution, rendering the system vulnerable to corruption and manipulation and endangering basic rights of innocent citizens. It ignores the real victim, often compelling him/her to find extralegal methods of getting justice. Above all, it puts heavy economic costs on the state for its maintenance without commensurate benefits in return. With nearly 30 million criminal cases pending in the system (the annual capacity of which is only half that number), and with another 10 million or more cases being added every year, whatever is left of the system is bound to collapse completely unless some radical alternatives are adopted urgently.
Faced with a similar situation, the U.S. adopted plea bargaining and diversion to administrative and quasi-judicial institutions in a big way several years ago with the result that less than a third of criminal cases are allowed to go for trial. Diversion is followed in the U.K. as well. Recently, it reformed its criminal justice system giving a central role to the victims to direct their cases in the system. In Russia, Australia and several other countries, the victim is brought centre stage through what is called “restorative justice” to replace unproductive aspects of conventional criminal processes. On the recommendation of the Committee on Reforms of Criminal Justice System (2003), India also adopted “plea bargaining” under Chapter XXI-A of the the Code of Criminal Procedure to take out from the system cases punishable up to seven years of imprisonment for negotiated settlement without trial. However, the Bar and the Bench seem to be allergic to plea-bargained settlement, with the result that even after a decade of its introduction, it remains a dead letter not invoked by those caught in the system.
Differentiated penal codes
The committee on criminal justice reforms recommended a threefold strategy to arrest the drift and to prevent total disaster. First, the law, substantive and procedural, requires a fresh comprehensive look based on changes in society and economy as well as priorities in governance. The guiding principle in the reform process should be decriminalisation wherever possible and diversion, reserving the criminal justice system mainly to deal with real “hard” crimes. A suggestion was made to divide the Penal Code into four different codes — a “Social Offences Code” consisting of matters which are essentially of a civil nature and can be settled or compounded through administrative processes without police intervention and prison terms; a “Correctional Offences Code” containing offences punishable up to three years’ imprisonment where parole, probation and conditional sentences can be imposed in lieu of prison terms and can be handled under summary/summons procedure where plea bargaining can be liberally invoked without the stigma of conviction; an “Economic Offences Code” where property offences which affect the financial stability of the country are dealt with by a combination of criminal and administrative strategies including plea bargaining (both on charge as well as on punishment) with a view to making crimes economically non-viable; and an “Indian Penal Code” which will have only major crimes which warrant 10 years’ imprisonment or more or death and deserve a full-fledged warrant trial with all safeguards of a criminal trial. The police and prosecution systems will accordingly be reorganised making them more specialised, efficient and accountable.
The second strategy proposed by the committee was institutional reform of police processes, including investigation of crimes, professionalisation and rationalisation of court systems with induction of technology and limiting appeal procedures to the minimum required. It is here the committee sought to bring in a bigger and responsible role to victims of crime in the whole proceedings. The Code of Criminal Procedure (Amendment) Act of 2006 adopted a small part of the recommendation on victims and left the rest for future consideration. This did not help in changing the system to a victim-centric one; nor did it support a restorative approach necessary to make the system serve its reformatory and deterrent functions meaningfully.
Victim-oriented criminal justice
What does “victim-centric” mean in the criminal justice system? It means restoring the confidence of victims in the system and achieving the goal of justice in whichever sense the idea is conceived. Toward this end, the system must confer certain rights on victims to enable them to participate in the proceedings, including the right to be impleaded and to engage an advocate in serious offences, the right to track the progress of the proceedings, the right to be heard on critical issues and to assist the court in the pursuit of truth. Second, victims have the right to seek and receive compensation for injuries suffered including appropriate interim relief irrespective of the fate of the proceedings. Victims may also submit a victim impact statement to the courts setting out the effect of the crime on their lives.
Today, a victim-centric approach in criminal justice can also mean healing the wounds through reconciliation and restorative means of justice rather than letting it get prolonged in the system, leading to frustration and more wrongs. Restorative justice is more akin to indigenous systems of quick, simple systems of resolution of wrongs which enjoy community support, victim satisfaction and offender acknowledgement of obligations. Thus perceived, restorative justice takes on board all three parties — the offender, the victim and the community — in a harmonious resolution of the injury, maximising the sense of justice and restoring peace and harmony in the community.
Restorative justice is distinct from mediation though it involves meetings and dialogues to fix responsibility for wrongdoing and to find a solution acceptable to all three parties. More importantly, it directly addresses victim needs and therefore emphasises the private dimensions of a public wrong. It is not a substitute to the formal criminal justice system, but a good backup to reduce its workload and to increase the sense of justice in the system as a whole. In a sense, the concept of “plea bargain” is closer to the idea and processes of restorative justice and therefore nothing new to criminal proceedings.
A distinctive feature of restorative justice is that it looks at the needs of crime victims which are today outside criminal justice concerns, leading to frustration and alienation of victims from the system itself. The victim is deprived of information on why he should suffer the injury and how it is going to be repaired. He would perhaps feel vindicated if the offender were to make an effort to right the harm, even if partially, by restitution. The victim would respect the system if it could make the offender assume responsibility and persuade him to transform himself. Restorative justice therefore aims to respond to the needs of the victim and help sustain interpersonal relationships while reinforcing offender obligations. Justice, in other words, should engage with victims, offenders and the right-thinking members of the community in an effort of reconciliation and repairing of harm. This approach begins with a concern for victims and their needs even when no offender has been identified or apprehended.
Limiting the adversarial model
Several countries across the world are now replacing the adversarial model of criminal justice partly or wholly with different models of restorative justice, yielding promising results in crime control. The process is more collaborative, consensual and inclusive, that is characteristic of indigenous systems of justice. The role of the state is reduced and the participation of communities encouraged. This is not to be confused with the khap panchayat model of arbitrary decision-making by a few elders of the locality. Due process requirements are followed in restorative justice while participation is enlarged and made transparent, inclusive and accountable. While doing so, the system respects diversity as a social fact, interrelatedness as a virtue and correcting/healing the harm as a major objective.
Crime and violence constitute a major impediment for development and social integration for a plural society like India. The adversarial model of criminal justice, with punishing the offender as its only aim, has proved costly and counterproductive. Communities have to be involved and victims given rights in finding ways to correct the wrong. While keeping the adversarial system for certain serious and complex offences, India needs to experiment with more democratic models aimed at reconciliation and restoration of relationships. Restorative justice is a welcome idea particularly in the matter of juvenile justice, property offences, communal conflicts, family disputes, etc. What is needed is a change of mindset, willingness to bring victims to the centre stage of criminal proceedings and to acknowledge that restoring relationships and correcting the harm are important elements of the criminal justice system.
N.R. Madhava Menon is former Vice-Chancellor of the National Law Universities in Bengaluru and Kolkata, Director of National Judicial Academy in Bhopal and presently Honorary Director of the M.K.N. Academy of Continuing Legal Education in Kochi.