I am writing this piece as a follow up on a lively debate around justice at my facebook page, which ensued upon sentencing of the top Hindi Film Actor Salman Khan to 5 years imprisonment in a hit and run case where one person died and four others were injured. The debate, typical of all moral debates, comprised of indignation, outrage and also satisfaction of justice being carried out. We will come to salient points of that debate at the end of this piece however I want to put all the arguments in a context first.
Any debate about justice touches our deepest sense of being for two reasons. One, we have an entrenched moral intuition around the idea of justice and secondly because we know that societies coalesces around an idea of justice and that civilization exists because we have been able to institutionalize the justice dispensation as a codified system. Without justice we have a jungle.
Now in any societal set up, justice typically takes three forms (if one discounts poetic justice, that is). The first is form of a social justice and other two as variations of criminal justice.
It is a social justice idea mediated by public policies of a state wherein it is decided how benefits and liabilities of a society are distributed amongst the members of that society. This is a topic I will want to talk in detail about at some point in future however it is irrelevant to our current context except for the fact that it lead to some people sleeping on the pavement one of whom eventually got killed in that incident. They were homeless and on road because distributively, our society was unjust to them.
This criminal justice doctrine upholds proportionate punishment as the best response to a crime. Crudely it is “eye for an eye” kind of system with a small twist that the crime is considered committed against the state whose law you have broken. So if you take an eye, the victim does not get to gouze yours, state does. Under this dispensation the victim does not get any attention of state or of offender. The entire focus of justice in on perpetrator and his proverbial eye.
Retributive system, the most widely practiced, criminal judicial system in the world, feels intuitively right and also has as its advocate one of the foremost philosophers of the enlightenment era, Immanuel Kant. In his seminal work, Metaphysics of Morals, Kant with his deontological argument posits that judicial punishment cannot be viewed in any consequentialist sense as a promoter of good for victim, offender or a society. It has to be viewed simply as that a crime was committed in breaking of law and state has an obligation, as a custodian of law to ensure punishment. So any crime is materially not about victim or offender, but about upkeep of law. Succinctly then, retributive justice is not about agency of people involved in a crime but about statute of law.
Restorative justice, instead of focusing on the punishment to the offender or abstract canons of law, argues that crime is a break of relationship with a person and a community and is not an act committed against the state. Likewise justice is in repairing that harm by apologizing, compensating the victim or in serving the community and is not in necessarily serving a prison sentence in a state run facility.
Restorative Justice, an outcome of utilitarian philosophy (which posits maximum benefit for all stakeholders, as a favorable moral outcome) encourages victim to participate in the justice system as a method of healing and it stipulates offender to take responsibility for his actions and make them good.
Restorative justice is not a new system and has been practiced by tribal communities and local village communities with the help of village elders as arbitration and mediation for centuries. In fact it has shown highest rates in terms of victim satisfaction and offender accountability. Inspite of its rich history, currently this alternate form of justice carried out through mutual participation and offender-victim dialog, is happening only on the margins of mainstream criminal legal system.
Heres’ a US police officer describing the restorative justice system and how it works in actual situations:
To balance justice scales, against Kantian injunctions, Mahatma Gandhi weighed that an eye for an eye makes the world go blind. He believed in restorative justice for a wrong doing.
Having outlined the philosophical faultlines of criminal justice systems across the world, in my own heart, I side with utilitarian concept of justice. I believe that instead of treating crime purely as individual outcome which should be corrected at an entity level, we should view such acts as societal situations which have consequences for various stakeholders. Likewise our primary objective while considering justice should be to get benefit for all with its pecking order being victim first, community next and finally the offender himself. This is so because under deontological system of justice as practiced in our mainstream legal dispensations, the victim does not get a closure, society does not get any tangible benefit (reduced crime rates/productive labor/rehabilitation of offenders) except for taxpayers, who do get a bill to keep the mammoth criminal justice system ticking. Here is a little more on the problems that the conventional justice system throws up:
However in this piece I do not want to conventionally argue for one system of justice against another. In fact my proposition is that in all societies, if we have to be utilitarian’s in terms of justice, we need an accepted and functional, hybrid system of justice. Both the systems, retributive and restorative, have intrinsic advantages which should be leveraged while considering the overall shape of justice that a society dispenses. Functionally retributive system should be the stick and restorative, the carrot for bringing a course correction in any criminal behavior. Dynamically balancing the two approaches might turn out to be the best way that society can maintain the social control and enforce deterrence, that it so seeks.
Since this piece is not about legal technicalities and also I am not trained as an attorney, so I am just presenting a very broad brushstroke portrait of how this can be done. The final details can obviously vary substantially from the plan presented.
For most misdemeanors as under criminal laws (offences against property/justice/animals/vice crimes and some less grievous crimes against persons), most juvenile crimes and most offences under torts/civil laws (most negligence torts even due to recklessness or intent) restorative justice process might be the first route to take. If no closure can be obtained within its due process, the case can be escalated to the retributive process.
For most felonies (including homicides/terrorists activities/contraband and narcotics and other serious crimes against a person or a state) retributive system with its due process of trial and sentencing should be followed.
For this system to be effective, apart from the circle based approach currently being adopted in restorative systems, it might entail setting up of special courts and tribunals to mediate and make the awards. Also the laws might have to be amended wherein the awards and sentencing can be restorative and compensatory for victim as well as communities instead of only being punitive to individuals.
This brings us to the facebook debate and 5 year jail sentencing of Salman Khan for his conviction on charge of culpable homicide not amounting to murder. This was an escalated charge from earlier lesser charge of causing death by rash and negligent driving. The charges against him were framed under Section 304(2) (culpable homicide not amounting to murder) as also under Sections 279 (causing death by negligence), 337 (causing hurt by an act), 338 (causing grievous hurt), 427 (causing damage or mischief to property) of IPC, and provisions of the Motor Vehicles Act and Bombay Prohibition Act.
One side of the debate was that being a celebrity no exceptionalism can be applied and justice is served by his 5 jail term as he was drunk which is criminal negligence, he ran from crime scene and lied in court which is justice obstruction and obviously he killed someone which is manslaughter.
Now lets examine the utilitarian hierarchy of justice as it was applicable in this case. The victims do not get any compensation as none has been awarded (except for minor sums of couple of thousand dollars which were paid initially) so they have to struggle on. Society does not get any benefit from this situation and Salman Khan himself obviously does not benefit from going to jail. But yes justice as we narrowly define it, has been served and state (direct beneficiary in terms of law upkeep) and media (collateral beneficiary) have gained from this situation.
Now my point in that debate was that, had we used a restorative system of justice Salman Khan should have been put on probation with restrictions (or maybe a jail sentence of 1-2 years to account for culpability in homicide), should have been asked to compensate the victims of the case directly ( as a fixed charge for injured and as a percentage of his income to support the family of deceased). Also given his celebrity status, he should have been directed to save 100,000 lives in the community by either sponsoring the medical procedures for underprivileged or funding the organ donations to people who cannot afford such procedures. He could have been further directed to participate in social awareness campaigns for various causes that could have saved many more lives in developing India. So overall this justice dispensation would have accorded victim compensation, saved countless lives and benefited Salman as well.
Extending this argument I want to suggest that this system of justice should not only be extended to him but all convicted and under-trials who are on the charges which qualify for restorative justice system under a predefined criterion.
So will this kind of hybrid system of justice happen? Maybe Not. Is this desirable? Definitely.. Yes.
The jury then is out and the debate rages on…..
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