Guest Post: Exploring The Failure of Restorative Thought in the Indian Criminal Justice System

(This is a guest post by Hrishika Jain)

The recent execution of Akshay Singh, Mukesh Singh, Pawan Gupta and Vinay Sharma for the 2012 Delhi rape marks a significant step away from India’s 1980s’ de-facto abolitionist jurisprudence. The death penalty, having no basis in deterrence or reformation, serves no goal other than retribution. In this sense, every deployment of death as punishment, strengthens the hold of the retributive model on a justice system, and weakens any restorative and reformative pretenses. This is particularly true of the state response to the 2012 rape. The 17 year-old juvenile involved in the 2012 case was sent to a correction home for 3 years, triggering backlash against the ‘leniency’ of Juvenile Justice Act’s [‘JJ Act’] rehabilitative frameworks. Consequently, the state responded, not only by executing the 4 convicts, but also by substantively destroying the JJ Act, 2000 – it was repealed, and replaced by a new Act in 2015 which allows minors between ages 16-18 to be tried as adults for heinous crimes.

To me, this series of events poses a larger, more abstract question – about the consistent failure of non-retributive, rehabilitative thinking about justice in India. This failure manifests variously. The 2000 Act, however crucial, was one facet of non-retributive justice which was hastily abandoned. Other examples are: scaling back of the anti-death penalty jurisprudence; public support for ‘encounter’-killings of 4 alleged rape accused in Hyderabad; cases of lynchings of suspected child-kidnappers; inadequate focus on reformative schemes in prison; and a general rise of ‘tough on crime’ legislations with compromised procedures, that extend criminal penalties to pre-criminal or ‘anti-social’ conduct.

In this post, I address one potential cause for this failure. Our current criminal justice policy aims at carving out rehabilitative niches (like the JJ Act 2000, or sporadic rehabilitative programs run at the discretion of jail administrations), within a dominantly retributive framework. I argue that the failure of restorative models is guaranteed because of the sheer impossibility of a truly ‘integrated’ criminal justice system that can reconcile retribution and restoration within itself. I further argue that these efforts for integration in turn are driven by a misunderstanding of what restoration means.

Essentials of Restoration

Any inquiry into the reconcilability of retributive and restorative models first requires clarity about what a restorative model entails. Armstrong argues that the lack of consensus around the core elements and philosophical goals of restoration, renders any claim about the (im)possibility of reconciling restorative with retributive goals, suspect. Thus, according to Armstrong, the debate over reconciliation will remain inconclusive, unless the theoretical uncertainties are resolved. Without this certain agreement over the essentials of restorative models, he argues, the various policy proposals incorporating restoration in an otherwise retributive system run into one of two problems.

First, they may commodify individual practices seen in restorative models, and incorporate them within a retributive paradigm without importing its underlying philosophy. What passes as ‘restoration’ in retributive systems that centre around punishment, are often ‘alternative punishments’, and not ‘alternatives to punishment’. For example, community service under the JJ Act, in a model that does not import its underlying purpose of offenders’ reintegration and moral reform, is effectively only an alternative punishment. Similarly, juvenile special homes—though required to be places of reform, skill-development, re-education and psychosocial care—focus their budgets on security and surveillance instead. This causes tangible lack of reformative care in these supposedly reformative niches, and is in line with the suspicion of the “Otherised” criminal encouraged by retributive paradigms these homes operate in.

Alternatively, second, the policies may discard retributive frameworks, but adopt goals that stretch ‘restoration’ beyond any identity with its original philosophy. An example of this is the community-led justice systems like Nyaya Panchayats. Promoting these systems as inherently ‘restorative’ assumes a Gandhian-utopian idea of village communities, and ignores their casteist and patriarchal outcomes. Such systems may involve non-retributive responses to the offender, like in cases where Panchayat resolves rape cases by marrying the victim and the offender. However, equating such non-retributive systems to ‘restoration’ negates the essentials of restorative justice, as I argue below.

I agree with Armstrong’s thesis that policy proposals that mix-and-match restoration and retribution in India have run into the above two problems. However, Armstrong argues that these problems are a result of theoretical uncertainty over what ‘restoration’ even means, and that, given this uncertainty, the question of whether integrating restoration with retribution is possible is fundamentally inconclusive. Here, I disagree, and argue that retribution and restoration are conclusively incompatible frameworks. I further propose that this inherent incompatibility, and not academic uncertainty over meanings of restoration, is the cause of the two problems outlined above.

I believe Armstrong’s conclusion that the reconcilability cannot be determined, stems from his particular formulation of the minimal elements of restoration as that, per him, relative consensus exists on. He relies on Marshall’s understanding of restoration as “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. (p. 363) It is notable that this formulation has no objective metric for assessing a successful outcome, beyond the participatory nature of the process itself. Basically, the outcome is assumed to be restorative, if the process involved collective deliberation by stakeholders. I argue that, while disagreements exist on a full definition, Armstrong’s adopted formulation does not fully encapsulate even those minimal essentials of restorative justice that relative consensus exists for. By neglecting an outcome-based element, as proposed by Walgrave (p.622), the formulation neglects the distinct philosophical goals that form the very essence of restoration - healing social bonds and renewing consensus around the violated social/legal norm (Wenzel et al., p.381, 383). Incorporating these goals in understanding the minimal elements of restoration achieves two purposes. It exposes the incompatibility of restorative and retributive practices even without exhaustively defining the former, and further demonstrates how understanding restoration devoid of its philosophical goals has led to the two problems identified above.

Consider an example where all stakeholders voluntarily resolve that the best recourse after a rape, is to wed the victim and the offender. Victim’s consent in such situations is superficial. Family honour and modesty, reduced self-worth due to victim-blaming, financial dependence, even the guilt of sending a member of the community to prison - coax, without necessarily forcing, consent. A process-based understanding of ‘restoration’ would be compelled to accept this as ‘restorative’. However, introducing goals of healing social bonds, and renewing consensus around the violated norm, changes this analysis. This resolution, while being voluntary, would not renew consensus around the norm against non-consensual sex. Instead, such resolutions would further dilute this consensus each time. This is because, when marriage is understood as resolving the harm caused by rape, it indicates that it is not the victim’s right to bodily autonomy/consent, but her unmarried status or the damage to her ‘modesty’, which makes rape immoral.

Ignoring the philosophical goals of restoration changes its essence, like in the case above. It also risks partial integration of individual restorative practices into a retributive model without importing the philosophy of healing that underlies that practice, such as with community service.

Now that I have established that incorporating an outcome-based element would resolve the problems highlighted by Armstrong and is thus desirable - I will argue why restoration, as understood with its philosophical goals, is necessarily incompatible with retribution.

Incompatibility of Retributive and Restorative Goals

Societal ideas of justice and morality are strongly informed by and inform legal institutions - with different forms of institutions encouraging different social norms, and vice versa. Retributive legal institutions, thus, feed off and feed a retributive society, resting on a clear dichotomy between both the victim and the criminal-Other, and society and the criminal-Other (p.704). This Otherisation of criminality and the criminal can be best explained through Nussbaum’s notion of ‘projective disgust’– disgust projected onto a particular class of people, in order to externalise insecurities about one’s own impurities and moral failings. Ultimately, here lies the appeal of a retributive society that Otherises criminals and paints them like monsters or deviants from (as opposed to products of) human norms. Painting the Delhi rape convicts as the Other, essentially different from the Self, allows everybody else upholding patriarchal structures that justify violence against women, to externalise their own moral failings onto specific particularly egregious acts done by the Other. The Other then becomes the monster-deviant deserving of the worst forms of retribution including the death penalty, in over-compensation for the impunity granted to the Self. Retribution, in other words, becomes a mode of projecting disgust onto the Other - externalising one’s impurities, rendering oneself morally ‘pure’ in the process. Punitive prison systems, for example, help the un-imprisoned to draw a clear moral difference between the incarcerated criminals, and their free selves. So does the death penalty.

This dominant retributive sentiment, and the baggage it comes with, is inherently incompatible with restorative institutions and the kind of society they would arise in and engender. Implicitly, forgiveness is a central moral feature of a restorative society, given its goal of healing social bonds (Wenzel et al., p.377). Theoretically, forgiveness and punishment may perhaps co-exist as compatible notions of justice. However, reconciling these two in a society already deeply invested in retribution and drawing clear boundaries between society and the criminal-Other, will create distortions. Forgiveness is necessarily tied to a wholly different system of social mores – mores that recognise and seek to heal the offenders’ own victimisation at the hands of, inter alia, psychological, socio-economic, and life-history factors, while encouraging the offender to take moral responsibility for his conduct (p.7). This necessitates rejection of the idea of the criminal as an ‘Other’ – instead, it would understand crime as the combined product of a broken society, and individual agency operating within it. The development of these fundamentally different social mores, that is required for any restorative practice to succeed, would remain suppressed under the stronger tendencies to Otherise of the better-established retributive frameworks that restorative practices are embedded in.

This necessary link between retribution and the idea of the criminal-Other also risks creating some distortive consequences when restorative and retributive systems are integrated. Imagine an integrated model that allows victims a choice between penal and restorative remedies. Given the general tendency to construct the criminal as an ‘Other’, what would determine the victim’s choice between restoration or retribution in an integrated model? Wenzel et al. argue that social-psychological factors like the victim’s and the community’s ability to construct a sense of identity with the offender, play an important role in choice of remedy (p.383). This ability to identify with the offender will be particularly critical where restorative options are integrated within a retributive society. This is because, whether an offender faces retributive or restorative remedies, will often be determined by whether the general Otherisation that all offenders face in retributive systems is negated by other factors that allow a sense of identity with the offender. This was reflected during the #MeToo movement in college campuses, where social reactions ranged from ostracisation to forgiveness, and seemed to partly depend on the perception of belongingness of the offender in a largely elite, upper class/caste community. This fallout of integrating retributive and restorative justice is often unaccounted for - the co-existence of the two senses of justice is likely to exacerbate the current discriminatory penal outcomes. While a sympathisable-offender may be humanised and reintegrated, the punitive tendencies will continue to disproportionately further Otherise the offender with whom the victim/the community cannot already identify with. The latter will disproportionately be persons who are already-victimised by structural prejudice - widening the current class/caste/race gap in our criminal justice institutions. This is because the non-marginalised victim is more likely to be able to access justice effectively, as was observed in the #MeToo movement. This means, overwhelmingly, it will be the non-marginalised offenders benefiting from the sense of identity with the victim that allows restoration to succeed – while marginalised offenders are more likely to face retributive remedies. For restorative practices to not exacerbate inequities of the penal system, they must be embedded in a restorative framework that generally allows space for recognition of the victimhood of offenders and their identity with the larger society, regardless of socio-economic factors.

There is another concern with such an integrative paradigm. While victim satisfaction surveys indicate positive results for restorative options, they leave another question unanswered - whether restorative practices installed in retributive societies will satisfy the society. The purpose of criminal law is not only to remedy the harm to the victim, but also to reinstate society’s sense of security. Thus, arguably, state-reaction to crimes must also ensure that the criminal justice system, in general, nurtures society’s sense of security. This is not to say that judges validly account for public opinion during sentencing in specific instances. Rather, the criminal justice machinery as a whole must inspire faith in the community – and thus, has to match the community’s notion of justice. Why is it important that the community feels secure, and has faith in the criminal justice system? Where legal system’s attitude to crime is seen as inadequate, crime can lead to more violent crime as a mode of privately dispensing justice. Further, a society that is insecure about its safety, is also likely to generate unsafe conditions for its Otherised/marginalised sub-sections. For example, the discourse of ‘security’ around terrorism, has been politically used to engender insecurity – this, in turn, has led to a rise in tolerance for Islamophobia and violence against Muslims. None of this is to say that retributive societal norms justify a retributive legal system. However, given the importance of criminal justice systems nurturing this sense of security, restorative practices will remain ineffective, without changing surrounding retributive mores.

Thus, finally, the question is whether the shift from punishment to healing as our idea of justice, first need us to be a fundamentally different society? I answer this in the affirmative. Naturally, however, this is a chicken-and-egg question – should reform in legal institutions drive the change in social mores, or the other way around? This is a common dilemma in questions about law and society and the way they influence each other. To me, the most pragmatic answer is that reform in both must go hand-in-hand.

Conclusion

The question remains, what does this inherent incompatibility between restorative and retributive justice mean? It certainly does not mean that we give up on reform, in face of the retributive mores that pervade our society and law. What this incompatibility does mean, however, is that all facets of our interaction with crime needs to forego retribution as even one aspect of their goals, and focus on reform, rehabilitation, and restoration. These facets range from social education about crime, to prevention policies, to policing institutions, to criminal courts, and finally, post-conviction legal responses.

I will begin with post-conviction legal responses. While restorative models will incorporate alternatives to incarceration, they are not, I believe, theoretically inconsistent with the institution of prison. Practically, however, things change. Prisons in India are governed by the arcane Prisons Act, 1894 and respective state Prison Manuals. The 1894 Act contains no provisions for mandatory rehabilitative/reformative programmes – making prisons tools for inflicting punishment, not facilitating reform. Similarly, there are no uniform provisions made that encourage linkages with the community outside – despite such linkages being integral to restoration by healing social bonds. In the absence of provisions in the 1894 Act, attempts towards offenders’ restoration are isolated and discretionary – such as the gala bhet initiative started by Maharashtra that allows prisoners to meet their families without a dividing barrier. This is again a mere commodification of a restorative-like practice, in a prison system that is otherwise harshly punitive. The only way to systematically transform prisons into institutions of development, reform, and restoration, not punishment, is by shifting to open prisons, allowing prisoners to maintain their social and economic ties with the least hindrance on their liberty. Further, any idea of prisons as restorative spaces must also adequately provide post-release counselling and aid – check-ins to help the offender integrate back into society, financial assistance, career-counselling to enable the offender to economically support himself and forge a new life.

However, it is clear that any shift towards restorative justice in post-conviction legal responses will suffer from the problems pointed out in this paper, unless there is a parallel shift in all other spheres of criminal discourse and regulation. For example, media-reporting on crimes is sensationalised and deeply emotive – often evoking the imagery of ‘monsters’ and ‘evil’ while talking about crime and criminals. Negating the Otherisation that fuels retribution will necessitate media sensitivity guidelines and suitable changes to graduate curriculum in media courses – given the critical role of mass media in social education about crime. Further, media-reporting that attempts to humanise the perpetrator, highlighting his own victimhood, his life before the crime, while still not simply denying his agency in his conduct - will actively help in a shift towards a restorative society. Similarly, incorporating sociological understandings of the causes of crime and criminality, in police/judge manuals and training will initiate a shift towards kinder policing/judicial institutions.

The hope is that we move away from the isolated islands of restoration within retributive paradigms that characterise current criminal justice reform. Instead, we must aim for a holistically restorative system that detaches itself from retributive goals, and shifts to frameworks based on healing and forgiveness.