It is unfortunate that in today’s world, the concept of restorative justice is being rapidly replaced by ideas of retributive justice, and notions of revenge and vengeance are taking center stage everywhere. The prevailing sentiment is that of annihilating the criminal and not of eventually helping him or her to assimilate back into community and become yet again a productive member of society. Comprehension of mistake, admittance of responsibility and clemency are some of the vital prerequisites of restorative justice. The present Indian criminal justice system scarcely bears any resemblance to illustrations of restorative justice or forgiveness, although its colonial roots lie in a vision of restoration and reconciliation.
Central to the understanding of retributive justice, which is what the clamor is about these days, is the thought that people should get what they deserve. This means that those who work hard earn the fruits of their toil, while those who break the rules warrant punishment. Also people deserve to be treated in the same manner that they opt to choose to treat others. This is largely the prevailing view and a view driven largely by thoughts of revenge, vengeance and vendetta, which can only be described as primitive and inconsistent with a view that respects and honors human rights and their enforcement.
A retributive justice mindset leads to the enactment of laws that fosters this notion and accords it even more validity than before. Thus laws like POTA, TADA, and AFSPA are all laws that legitimize the state’s quest for blood thirsty revenge and even creates a climate where extra-legal and extra judicial “happenings” like encounter deaths and custodial deaths are trivialized with only human rights groups crying themselves hoarse even as the State looks the other way.
With laws like this in place, there is a dangerous propensity to slide from retributive justice to a stress on revenge. Reprisal is a subject of retaliation, of getting even with those who have hurt us. Retributive justice does not require that the punishment be of exactly the same degree of severity as the crime—which, in any case, isn’t always possible. But it does seem to require that there not be an extreme disproportion between the gravity of the crime and the severity of the punishment.
In India, we are moving further and further away from the well-known truth that hurt people hurt other people. And wrongly incarcerated and punished people hurt even more. Our justice system must do more than simply punish perpetrators. Moving beyond adversarial approach, it should generate processes that facilitate individual and collective healing. That would be more in tune with the Gandhian ideals we still pay lip service to.
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