Guest Lecture at Indian Law Institute, Bhagwan Das Road, New Delhi

1. Criminal Law
LLM 1 Year
Section 5: Crime and Justice
Ms. Bhavana Mahajan
21st April 2016
Email: bhavana.mahajan@gmail.com

2. Topics
n Restorative Justice
n Theories of Punishment
n Victimology
n Plea Bargaining
n Sentencing Policy in India
n Prison Reforms

3. First Principles
n What is crime?
n Why is it ‘bad’? Who does it affect?
n Does it change over space and time? Why?
n What is Justice?
n What is the relationship between crime and justice?

4. I. RESTORATIVE
JUSTICE

5. WHY IS CRIME TRAUMATIC: Victim Lens
n Key Questions:
– WHY DID IT HAPPEN TO ME?
– WHAT IF IT HAPPENS AGAIN?
– WHAT DOES THIS MEAN FOR ME AND FOR MY OUTLOOK? (my faith, my vision of
the world, my future)
n Judicial needs of Victims include:
– Safety/prevention concerns
– Restitution: Restitution can provide a sense of Restoration on a financial as well as
symbolic level
– Answers: Information is important to the Victim
– Opportunity to tell their side of the story: Victims need opportunities to express and validate
their emotions; their anger, their fear, their pain
– Empowerment: Their sense of Personal autonomy has been stolen from them by an offender
and they need to have this sense of personal power to returned to them
– …
MEANING
IDENTITY
RELATIONSHIP
n Disorder: Crime may upset our sense of meaning which is a
basic human need
n Dis-empowerment: Crime is in essence a violation of SELF
– who we are, what we believe, of our private space
n Disconnection: It is a violation of our trust in our
relationship with others

6. BUT….
Traditional justice mechanisms focus almost
exclusively on offenders…..the victim’s voice is
silenced out.

7. WHY IS CRIME TRAUMATIC: Offender Lens
n What does the offender “deserve”?
Default Answer: Punishment
n Does Punishment Work?
Not always since it:
– Takes away any sense of ‘responsibility’ (issue of ‘accountability’ for the
crime): a system of punishment requires elaborate due process that encourages
self-defense and self-preoccupation on the part of the offender. As such it
encourages the offender to fight conviction rather than take responsibility.
– Destroys self worth (the offender’s self-image as a ‘victim’): Gilligan argues
that violence (a wrong or ‘crime’) is motivated by a desire to achieve justice or
undo injustice. Punishment, therefore, merely confirms this sense of injustice.
(Trauma unaddressed is re-enacted)
– Isolates from the larger community (the offender as a social ‘victim’): Adds
to the offender’s sense of victimization at the hands of the system, society.,
– Degrades them (‘shaming’ effect): reinforces shame which may have been the
original cause of the offense (Gilligan)
– …..

8. WHY IS CRIME TRAUMATIC: Community Lens
n What is a ‘community’?
n What are the needs of the community?
n What is the role of the community as you define it in the process of
responding to harm, building relationships and the process of justice?
n What are the risks and benefits of community involvement in
implementing justice mechanisms?
n What is the relationship between community and ‘State’?

9. Can Restorative Justice Itself be traumatic?
n When the victim and the offender are not equal: in some traditional societies, the victim
and offender may not be at the same socio-economic plane – even if they were to sit across the
table they would not be able to do so as equals bonded only by the crime. In such a context,
the offender in is the more powerful entity, socially and/or economically. In such a scenario, a
community-based restorative justice model underlined by power inequality could in fact
aggravate the context
n The ‘Community’ itself as a source of crime: Zehr envisages the community to be a
homogenous healing whole. However, in most of the developing world, community-based
decisions are dominated by the caste- and class-based politics with decisions taken by a few
and followed by the rest. Thus while community set-ups such as ‘Panchayats’ in India are
envisaged to be empowering justice delivery mechanisms at the grassroots, in practice, these
can themselves become offenders or tools for commission of crime
n Issue of on-time recourse to justice: restorative justice mechanisms sometimes may have
very long gestation periods which may even exceed life-times of individual human beings
rendering the process of justice meaningless in some cases.

10. Discuss
TASK: REFLECT ON A JUDICIAL RESPONSE
KEEPING IN MIND THE FOLLOWING
PARADIGMS
n RETRIBUTIVE
n REPARATIVE
n RESTORATIVE

11. RECAP

12. THE PROBLEMS OF PUNISHMENT
n Often ineffective or counter-productive
n Focuses on symptoms rather than causes
n Reinforces ‘street’ justice – an eye for an eye
n Encourages isolation rather than integration…

13. QUESTIONS:THE VICTIM
n WHAT HAPPENED?
n WHY DID IT HAPPEN TO ME?
n WHY DID I ACT AS I DID AT THE TIME?
n WHY HAVE I ACTED AS I HAVE SINCE THAT
TIME?
n WHAT IF IT HAPPENS AGAIN?
n WHAT DOES THIS MEAN FOR ME AND FOR MY
OUTLOOK? (my faith, my vision of the world, my
future)

14. NEEDS OF OFFENDERS
n ACCOUNTABILTY THAT
ü Addresses harms
ü Encourages empathy and responsibilty
ü Transforms shame into honor
§ ENCOURAGEMENT FOR PERSONAL CHANGE
ü Affirmation of worth
ü Competencies enhanced
ü Needs addressed, including contributing harm
ü Opportunities to “RE-story” their lives