SHOULD JAILS BE A CENTRE OF RETRIBUTION

OR REHABILITATION?

SUBMITTED BY:

NAME: RHYTHM KATYAL

DIV: C

PRN: 17010223034

BATCH: 2017-22

SYMBIOSIS LAW SCHOOL, NOIDA

SYMBIOSIS INTERNATIONAL UNIVERSITY

In

August 2017

Under the guidance of

MS. GARIMA YADAV

ASSISTANT PROFESSOR

SYMBIOSIS LAW SCHOOL, NOIDA

CERTIFICATE

The Project entitled “Should Jails be a Centre of Retribution or

Rehabilitation?” submitted to the Symbiosis Law School, NOIDA for
Sociology as part of Internal assessment is based on my original work
carried out under the guidance of Ms. Garima Yadav from July 2017 to
August 2017.

The material borrowed from other sources and incorporated in the

project has been duly acknowledged.

I understand that I myself could be held responsible and accountable

for plagiarism, if any, detected later.

Signature of the candidate

Date: 31st August 2017

Acknowledgments

I would like to express my greatest thanks to the people who have

helped me the most, throughout my project. I am grateful to Ms. Garima
Yadav (Assistant Professor, SLS Noida) for her non-stop support for the
project.

A special thank of mine goes to my friends Pranav Dwivedi (Student,

BBA LLB, 2017-22) and Adwitiya Chakrabarti (Student, BA LLB, 2016-
21) who helped me out in completing the project, where they all
exchanged their own interesting ideas, thoughts and made this possible
to complete my project with all accurate information. I wish to thank my
parents for their personal support or attention who inspired me to go
my own way.

At last but not the least I want to thank my sister Chhavi Katyal
(Student, M.A in Psychology, AUD) who treasured me for my hard work
and encouraged me for taking up this topic as my project.
INDEX

1. INTRODUCTION 1

2. REVIEW OF LITERATURE

Differentiated Penal Codes

Victim Oriented Criminal Justice 2

3. DISCUSSIONS

2012 Delhi Rape Case 4

4. CONCLUSION 6
INTRODUCTION

“Restorative Justice” is an approach towards the legal system which

comes with various interpretations. The rate of the crimes is rising and
with it decreases the quality of the society. Something that can be
learned from the case of Ajmal Kasab is that sometimes the person does
not have a choice to choose between what is good and what is bad
because the upbringing surely affects a person’s social conduct in the
society. With the number of rape and terrorism cases going up, the
people often forget to question the backstory and the criminal is left
with no closure in the society. Classic movies like Shawshank
Redemption deal with the subject of criminal systems prevalent in the
modern times. The movie, which clearly shows how an innocent man is
charged for a murder he never committed and how he meets actual
criminals in the prison who have doctorate degrees but cannot serve the
society because of an unintentional crime they did in their lives. How do
you prove someone’s intention? How do you prove if a person won’t
commit a similar crime again? These questions have been asked since
time immemorial. The question that is still under shadows is if a criminal
should be provided with the rights that a human being deserves or not.

The “Retributive Justice” in our nation is done only in rarest of rare cases
but the social factors that affect prisoners range from gender to religion
to even economic background. This project will review the article
“Towards Restorative Criminal Justice” (Menon, 2016) and give details
of further discussions and perceptions about the two types of justice
system prevalent, Retributive and Restorative!
REVIEW OF LITERATURE

“While keeping the adversarial system of criminal justice for grave

offences, India needs to experiment with more democratic models
aimed at reconciliation and restoration of relationships.”

Social factors are what drive the people towards a certain direction in
their life. With India’s constitutional system, nearly 400 articles find
relevance in making the nation and system work well. N.R Madhava
Menon, the founder-director of NLSIU Bangalore and a frequent writer
in The Hindu talks about how India is trying to approach a system which
inclines towards “Restorative Justice”. Talking about the criminal justice
system, he mentions the ineffective punishments that are given to the
criminals and states the loopholes of the society where the prosecution’s
discretion creates a corrupt manipulated system. No doubt, he talks
about a system where the police officers are discrete about a case and
the system believes in solving the case in the very early stages, this can
be because of the lack of lawyers but the social aspect behind this is
clear, dealing with non-mainstream cases affects the image of a
mainstream lawyer.

DIFFERENTIATED PENAL CODES

N.R Menon mentions how our country is trying to create a rehabilitation

system for the prisoners by differentiating the penal codes for the ‘Soft’
and ‘Hard’ criminals. He mentions that decriminalization should be the
focus of the restoration. From a social perspective, he suggests a “Social
Offences Code” which he says should contain regulations for cases which
are civil in nature and do not require much of the police intervention.
A sociologist would view this code as wrongly termed because the social
offences must mean the offences which affect the society on a whole
level and leads to social bullying of the person who committed the crime.
Social factors like religion or economic background should be considered
as these factors are major forces which makes the even the legal system
weak at times. Educational qualification should affect a regulation in the
code he mentions, for example a doctor who was a clean surgeon should
be allowed to prove the intention he might have had while committing
a crime.

VICTIM-ORIENTED CRIMINAL JUSTICE

“Victim Centric” as Menon mentions is about restoring the trust and

confidence of a criminal in the legal system of the nation. Today it can
also be viewed as a shorter system of justice as compared to a
prolonged system of justice leading to frustration and further
wrongdoings.
DISCUSSIONS

Various discussions have been done on the argument between the two
types of justice systems. While the prisons in early 90s believed in
retribution than letting the criminal make a comeback, most of the
modern jails follow the idea of restoration. The earlier prisons did not
have a boundation of many social factors like the type of government or
the presence of a sole constitution. While many scholars argue that, the
democratic type of government is more retributive in nature because
the people elect their governments and the judicial system works
towards the betterment of the society and not for the individuals who
committed a crime against the society.

A few nations over the world are currently supplanting the antagonistic
model of criminal equity incompletely or completely with various models
of therapeutic equity, yielding promising outcomes in wrongdoing
control. The procedure is more shared, consensual and comprehensive,
that is normal for indigenous frameworks of equity. The part of the state
is decreased and the support of groups energized. This is not to be
mistaken for the panchayat model of subjective basic leadership by a
couple of older folks of the territory. Due process prerequisites are
followed in helpful equity while interest is augmented and made
straightforward, comprehensive and responsible. At the same time, the
framework regards assorted variety as a social actuality,
interrelatedness as an excellence and redressing/mending the mischief
as a noteworthy goal.

Wrongdoing and savagery constitute a noteworthy obstacle for

improvement and social combination for a plural society like India. The
ill-disposed model of criminal equity, with rebuffing the wrongdoer as
its lone point, has demonstrated exorbitant and counterproductive.
Groups must be included and casualties given rights in discovering
approaches to remedy the off-base. While keeping the antagonistic
framework for certain genuine and complex offenses, India needs to try
different things with more just models went for compromise and
rebuilding of connections. Remedial equity is an appreciated thought
especially in the matter of adolescent equity, property offenses,
collective clashes, family debate, and so on. What is required is a
difference in attitude, eagerness to convey casualties to the middle
phase of criminal procedures and to recognize that reestablishing
connections and amending the mischief are imperative components of
the criminal equity framework.

2012 Delhi Rape Case

On 16th December 2012, 6 men raped a girl in a moving bus. While 5 of

the accused were adults, one of them was just 16 years old and was
sent for a restoration policy under the Juvenile Justice Act. The public
questioned the validity of ‘Restorative Justice’ because the nature of the
crime that was committed by this juvenile was equally brutal and
scarring as any adult in that situation would have committed the crime.
The boy (unnamed) was a future of the nation and it was believed that
a chance would not let the immature mind go under chronic depression.

In such cases, the system tempts to follow retribution but again goes
with the restoration because the crimes that are done at times are so
sudden and instinctive that our mind stops controlling bodily actions of
a person. The debate of retribution and restoration has no end if “Rarest
of Rare” cases are talked about but giving a chance would be the best
solution for a major social change in the society.
CONCLUSION

The restoration policy does not only benefit the prisoner but his social
relation holders as well. The victim never gets a closure when a prisoner
is hanged to death or is kept rotting in jails because without a
confrontation, a closure cannot be provided. The social factors affect the
victim more than the criminal and these social factors defame the victim
as well as the prisoner for no reason and without the knowledge of a
proper back story.

CSJ and other NGOs are working on restoration of prisoners. National

Legal Aid Centre provides proper counselling to many prisoners and this
leads to their restoration. The confrontation of criminal and the victim
provides better ground to solve what remains unsolved and gives not
only the prisoner but also the victim another chance to live a peaceful
life!

Bibliography
Menon, N. M. (2016, April 5). Towards Restorative Criminal Justice. The Hindu.