Tussle between RESTORATIVE and Regressive JUSTICE Justice V Parthiban (Retd) Retired judge, Madras High Court On April 19, 2022, the Supreme Court quoted Oscar Wilde: “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future.” The law lords resorted to ‘Restorative Justice’ in commuting a death sentence to a life sentence of only 20 years for a 25-year-old convicted in the rape and murder of a four-year-old girl.

Tussle between RESTORATIVE and Regressive JUSTICE

Justice V Parthiban (Retd)

Retired judge, Madras High Court

On April 19, 2022, the Supreme Court quoted Oscar Wilde: “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future.” The law lords resorted to ‘Restorative Justice’ in commuting a death sentence to a life sentence of only 20 years for a 25-year-old convicted in the rape and murder of a four-year-old girl.

The Bench appears to have been overawed by the famous dialogue from Oscar Wilde’s play A woman of no importance—”Every saint has a past and every sinner has a future.” This dialogue delivered by a vile character called Lord Illingworth in the play has, over a period of time, metamorphosed into a convenient axiom to be mistakenly embraced, as in this case.

The prosecution proved the guilt to the hilt; the trial court sentenced the offender to death by hanging. The Madhya Pradesh High Court, in the appeal, confirmed the death sentence as a part of “rarest of rare cases”. Surprisingly, the apex court held the crime did not answer the definition of “rarest of rare cases”, as held in Bachan Singh v. State of Punjab (1980). The court commuted the death sentence to one for life, and even more strangely, reduced it to 20 years only.

The fundamental philosophy of “restorative justice”, a sublime principle, is aimed at restoration, reformation and healing, as opposed to retribution and punishment. The United Nations Economic and Social Council adopted a resolution in 2002 on the central theme of restorative justice. The intention was to put the clock back to where it was vis-a-vis the actors, as existing prior to commission of crime. The active and voluntary involvement of both the offender and the victim is a fundamental requirement.

It is a “healing process” primed with profound and insightful appreciation of the social conditions  of the offender, as alluded to by the Supreme Court. It is a psychological evaluation factoring in the victim’s readiness to condone the act, and forgiving the offender is an essential legal and ethical component towards its facilitation. A fine balance must be struck by the court.

Application of the doctrine, premised on compassion towards the offender alone, leaving out completely the victim and his or her family, negates the core principles and borders on the cavalier. One refrains from using stronger language. The court called the act “barbaric” and “monstrous”. The trained can detect an element of deliberation to commute the death sentence. Oscar Wilde became the saviour to the offender and court while sacrificing the victim’s family.

As mentioned earlier, the lines from the play are spoken by Lord Illingworth who is portrayed as a consummate amoral person, one who practices debauchery as a life principle. The dialogue is a sardonic expression against the Victorian morals of 19th century Britain, meaning contextually that saints have given up their pleasures of life, but sinners have many more pleasures to indulge in in the future. It is about the celebration of wickedness.

The semantic allure in the word play of Wilde is used as a catchy expression, forgetting the context in the process. As a matter of fact, it was St. Augustine, the Third Century Christian theologian and philosopher, who said, “There is no saint without a past, no sinner without a future.” And might I say this is not the first inapt and Wild(e) use and may not be the last.

Restorative justice has been tried out in several countries after its conceptualisation in the 1980s and adoption of the doctrine by the UN body. In all cases, when attempts were made, offences were not horrific like rape and murder, that too of a child. Research reveals that before invoking the doctrine, involvement of trained facilitators/mediators along with the offenders, victims and their families is a foundational requirement towards realisation of the conceptual aim. It is a process involving the victim/family and not a monochromatic exercise as the imprimatur from the law lords. The criminal procedure code provides for compounding of offences, but not in a case of “rape and murder of a child”. Courts assume such jurisdiction only when the offender and victim are on the same page.

“A wise judge may let mercy temper justice but may not let mercy undo it.” The aphoristic statement by American theologian Lewis B Smedes would sum up how mercy shown most inappropriately can harm the criminal justice system itself.

Showing mercy is a noble gesture, a humane disposition. To rescue the offender from the gallows on the principle that it was not the “rarest of rare cases” is understandable. But, commuting the death sentence and replacing the same with  a 20-year sentence without any supportive reasons or materials amounts to purblind judgement, reflective of a wobbly exercise of discretion.

This decision, based on faulty foundations, is seminally flawed, and may unintentionally have paved the way for judicial caprice to creep into the sentencing jurisprudence. It is unfortunate that the most critical aspect on applicability of restorative justice—in a case of POCSO offence and murder—was a missed opportunity to set a sound precedent.

English philosopher Thomas Hobbes said “The law is the public conscience”. Judges must not forget that ‘collective conscience’ is behind the prosecution. Hence, in such criminal cases, judges must yield to ‘collective conscience’ in societal interest. While retributive justice is anathema to Rule of Law, victim-centric justice is not. It is only recently that criminal jurisprudence in India is focusing on victims’ interests. And this decision may be a setback on that journey.

Restorative justice is of sublime and compassionate construct, lending chance to a sinner to repent and pivot. But to employ it—in a gruesome tragedy like a child’s rape and murder—may have set a bad precedent as “law of the land”. This is possibly prone to misuse and can lead to “Regressive” not Restorative Justice.