'Punishment' beyond prison: It is time to explore restorative justice for crime
The best justice is when the wrongdoer and victims may not feel the same animosity against each other as they had at the beginning of the process.
Another round of questioning with respect to the adequacy of the newly enacted Juvenile Justice Act, 2015 with the arrest of a child – just four days short of turning eighteen years of age, for causing the death of an unfortunate pedestrian crossing the road by his rash and negligent driving. Causing death by rash and negligent act is ordinarily charged under Section 304A of the Indian Penal Code which prescribes the maximum imprisonment of two years for the offence. If the act is grossly rash and negligent, the person may be charged under Section 304 for causing culpable homicide not amounting to murder. As per newspaper reports, the police is pressing for the charge for the more serious offence.
Bail to the child is being vehemently opposed by the police. The victim’s family is in great distress and anguish and are demanding trial of the child as an adult and making an emotional plea that as their loved one will never return, the child must not be released. This case has again put questions about the adequacy of law to deal with the anguish of the victims. The same accident caused by the wrongdoer four days later would have led to his trial as an adult but because of the technical cut off age of eighteen years, this wrongdoer has been presented before the Juvenile Justice Board. They are demanding his trial as an adult, as the Juvenile Justice Act provides for this possibility for children between the ages of 16-18 years. However, such a transfer is possible only if the offence alleged to have been committed is a heinous offence. Only those offences that are punishable with minimum imprisonment of seven years are categorized as heinous offence under the new Juvenile Justice Act. The offence of culpable homicide does not fall within the category of heinous offence as it does not prescribe any mandatory imprisonment of seven years though maximum punishment of life imprisonment or imprisonment up to ten years may be given for this offence. Even if it would be otherwise, and the child is indeed tried as an adult, he would still be required to be released on probation as mandated by the Probation of Offenders Act being below the age of twenty one years except for special reasons to be recorded by the judge in writing, and may not meet the demand of the victim’s family for retributive justice.
Be that as it may, the case has brought the focus on the very high rate of pedestrians being killed in road accidents in India. It is important to ask whether sending the persons causing death by their rash and negligent driving to prison is the only and the best way to do justice to the victim’s family who have lost their very dear and loved one forever.
It is beyond doubt that prevention of such accidents by strict enforcement of traffic laws is more important than punishing the offender post-event, as nothing can bring the deceased person back to life. However, prevention of recurrence of such accidents is equally important for real relief to people.
Release of young persons on probation either under the Juvenile Justice Act or under the criminal justice leaves the victim’s family with the sense that the offenders have been let off as they have no say in the final order in such cases. Even the release of the offender after undergoing their sentence, is not considered as just by them as their loved one is never going to return. These responses do very little to deal with the anguish of the victim’s family at the loss of a dear one forever. It is high time that restorative justice as practiced in many countries be introduced in India for addressing the anguish of the victims. Restorative justice focuses on rebuilding the broken relationship between the offender and victim by addressing the need of the victim to question the accused, to find answers to questions only the accused may answer, to seek apology from the offender, to have the wrongdoer right their wrong, to participate in the choice of order in the case.
Even though the Juvenile Justice Act 2015 does not specifically provide for restorative justice, an individual care plan worked out with active participation and inputs from the victim’s family may lead to better justice to the child and the victim’s family. It would require that both sides are properly counselled about the process which will require them to meet each other in person to work out the best solution within the periphery of law. Before setting up the restorative justice meeting, it must be ensured that the wrongdoers are ready to accept their actions, are really repentant, and are willing to meet the victims’ families and apologise. They should also be ready to right the wrong done by them as jointly decided in the meeting.
A sensitive and aware Juvenile Justice Board may use the orders of group counseling and community service provided under the Juvenile Justice Act for evolving the best individual care plan by involving the victim in the process. It is important to remember that the victim’s family cannot be forced to forgive the wrongdoer, but they still derive a better sense of justice by being involved in the process of finding the best solution in the case. The best justice is when the wrongdoer and victims may not feel the same animosity against each other as they had at the beginning of the process.
The author is Professor of Law, University of Delhi
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