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Monday, January 18, 2021

Forgiveness is the key reform that criminal justice system needs

Justice is not opposed to forgiveness; rather it is the bedrock of forgiveness.

Written by G S Bajpai | Updated: February 5, 2020 6:11:42 pm
Forgiveness is the key reform that criminal justice system needs Forgiveness draws from the notion that criminal harm is primarily a violation of public norms and community sentiment and not necessarily a harm against the individual.

Senior advocate Indira Jaising’s statement urging Asha Devi, the mother of the 2012 Delhi gangrape-murder victim, to forgive the convicts in the case had upset many, including Devi. It is hardly debatable that the brutal act committed by the four men deserves the highest punishment. However, the derisive reactions to the plea of forgiveness in the land of Gandhi raise several questions. We live in times where mercy and forgiveness give way to retribution. Forgiveness and blame both come as natural responses to human beings when faced with loss or injury of any kind. It may seem impossible to consider forgiveness for the rapists and murderers in the 2012 case, yet it should not stop us from exploring the possibilities of forgiveness in the operation of our criminal justice system (CJS).

Ideally speaking, the objective of the CJS is to deter potential offenders and then to punish the guilty for retribution, expiation, and reformation. Retribution, therefore, while being intrinsic to the CJS, is not its defining value. Neither is it a value that any civilized society would aspire to achieve. The CJS was created to pacify the victims and to ensure that they do not take law into their own hands. Its institutional arrangements seek to satisfy the victims’; the community’s; and the State’s instinct for revenge. Laws and punishment in this context are contemplated as mechanisms for pain delivery.

Instead of adopting progressive goals like rule of law, protection, restoration, CJS in India followed the practical value of retribution. Often in the pursuit of sacred goals like justice, our CJS seems to give more space to practical aspects of crime control, often at the cost of due process. Encounters, torture, informal arrests, custodial violence etc. are the reflections of this trajectory. Aside from the mandate of law, functionaries of the CJS act under various influences including the subcultural values inherent in the agencies of CJS.

This is precisely why we are not ready to accept anything less than retribution on the part of CJS. In the present context, when our country shares a sense of disillusionment and a loss of confidence in CJS, the call for ‘instant justice’ echoes loudly and clearly. This is why the police officers are applauded when they eliminate rape accused in ‘encounters’. This is also why the community is satisfied with the controversial death penalty jurisprudence of our times. While in the short term costs of the same in the currency of human rights may be acceptable to us as a society, we cannot afford to look away in the longer term.

While a tough stand has been taken in many cases in India involving brutality, the debate exploring restorative justice through apology and acknowledgement of the harm has continued in several countries. The voices of empathy and compassion have not faded. While the police in the Hyderabad case was being garlanded and honoured for ‘encounter’ killing of rape accused, Martha Minow, the former Dean of Harvard Law School, was speaking about forgiveness in her book – ‘When Should Law Forgive.’ Law affects the feelings and relationships of its participants. Martha is of the view that legal actors can alter or reduce the consequences of wrongdoing; they can also influence parties to express and legal system can facilitate the discretions of the legal actors toward leniency rather than punitiveness.

Forgiveness can be a key reform in the CJS that will discourage incarceration epidemic and over-criminalisation in this country. It is roughly estimated that nearly 40 per cent of incarceration and litigation in any CJS is avoidable and, therefore, conditionally pardonable. Such institutional mercy can free up resources of the State besides subduing the perpetuation of conflicts that result from the adversarial legal process. This manner of operation of the CJS afflicts millions of people. The avoidable 40 per cent includes accused of petty offences, small disputes relating to family, property, and disputes of other kinds. These can be resolved through restorative processes — a strategy where conferencing circles are organised to make the wrongdoers accept the harm done and to explore means to restore the harm caused.

People in this country resent the idea of forgiveness as we as society covertly expect our CJS to extract revenge upon the offenders. Such dominance of retribution doctrine in CJS has impeded the infusion of new ideas. It has undermined the much-needed shift in criminal justice jurisprudence towards restorative, reformative and rehabilitative conceptions of justice.

The CJS gives a false sense of justice to people in a vast number of cases. Disposal of cases by the courts is equated with delivery of justice. This disposal-linked concept of justice, however, is misleading from the viewpoint of victim, accused, community and other stakeholders. The need is therefore to reformulate the idea of justice. Presently, the key words in CJS are arrest, bail, incarceration, punishment, death penalty, etc. Significant differences can be made by replacing these words with – protection, participation, forgiveness, and empowerment as positive markers.

The operation of CJS cannot be limited to being a tool of revenge. Rather it must promote empathy and harmony by way of humanising the relationships between the offender, victim and society. The CJS, as we know, is incapable of healing and does nothing to repair broken relationships.

Forgiveness draws from the notion that criminal harm is primarily a violation of public norms and community sentiment and not necessarily a harm against the individual. Current discourse on forgiveness in criminal laws requires that the victim is not coerced to forgive and offenders are not pushed to tender apologies. Individuals may feel pressured to relinquish their own anger.

Martha, however, believes that pushing to forgive is not worse than pushing for revenge. Currently, the law promotes adversarial process by intensifying bitterness and perpetuation of conflicts irrespective of the outcome of the case. Law in several countries contemplate that forgiveness does not mean forgoing of legal action. Neither does it eliminate blame on the part of the offender. It may merely result in reduction of sentence as decision to prosecute remains with the State, not with the victim.

While we stand determinedly with Ms. Asha Devi, we should not by default shun the idea of forgiveness in the criminal justice system. Justice is not opposed to forgiveness; rather it is the bedrock of forgiveness.

The writer is Chairperson, Centre for Criminology & Victimology, National Law University Delhi, and the Editor of the Journal of Victimology & Victim Justice

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