Editorials, GS-2, Indian Polity, Uncategorized

Towards restorative criminal justice

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Criminal Law of India is a replica of colonial times. It is hostile to the poor and the weaker sections of society. The law still serves and protects the needs of the haves and ignores the have-nots. Such biasness has resulted in rich people escaping law and the jail is more often full of the unprivileged class of society.

  • 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.

The Criminal Justice System in India has many loop holes:

  • 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.
  • It also puts heavy economic costs on the state for its maintenance without commensurate benefits in return.
  • Also, more than 30 million criminal cases are still pending in the system (the annual capacity of which is only half that number), and another 10 million or more cases are being added every year.

Hence, to arrest the drift and to prevent total disaster, the committee on criminal justice reforms recommended the following reforms:

  1. Have a fresh comprehensive relook at the law, substantive and procedural, 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.

For this, the Penal Code can be divided 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.
  • 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.
  1. Reorganize the police and prosecution systems making them more specialised, efficient and accountable. For this, institutional reform of police processes, including investigation of crimes, professionalisation and rationalisation of court systems with induction of technology are required.
  2. Bring in a bigger and responsible role to victims of crime in the whole proceedings by changing the system to a victim-centric one. 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.
  3. Victims should also 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.
  4. Government can also make use of restorative justice system. 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. 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. 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.
  5. The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization.

Conclusion:

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. 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. Also 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.

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