Incorporate the Spirit of Restorative Justice

The overhauling of the Indian crimial justice system must focus on imparting novel ideas like the George Stinney Fund and the Alan Turing Act to compensate those who are wronged by the State

scales of justice

“George Stinney Jr., October 21, 1929- June 16, 1944. Wrongly convicted. Illegally executed by South Carolina, conviction vacated by court order dated December 16, 2014”- reads the epitaph on the tombstone of George Stinney Jr. The youngest person to be legally executed in the United States, George Stinney Jr. was a poor Black boy. His crime was incidentally encountering Betty June Binnicker and Mary Emma Thames, two White girls, just hours before they were murdered. He was accused of rape and murder of the two girls. Following a trial that lasted merely for two hours, an all-white jury sentenced him for death. Stinney was executed on June 16,1944. He was prepared for execution by an electric chair and using a Bible (the same scripture that says “the Lord is a God of Justice. Blessed are all who wait for Him!) as a booster seat as he was too small for the execution chair.

On December 17, 2014, a Circuit Court in South Carolina vacated George’s conviction, citing numerous violations of his constitutional rights. The court called his brutal execution “a great and fundamental injustice.” In 2022 a South Carolina lawmaker introduced a Bill in the House of Representatives demanding the state to pay for those people it wrongfully executed, beginning with the family of George Stinney. Mr Cezar McKnight, the law maker, said, “We can’t do justice, because justice would be us resurrecting Mr. Stinney and allowing him to have a good life, but what we can do is atone for what we’ve done, and that’s what we need to do.” The proposed fund is named the George Stinney Fund, after the innocent Black boy who was denied justice by prejudice.

The story of Vishnu Tiwari in India is not less heartbreaking. He was convicted for rape when he was merely 23 years old. After 20 years languished in jail, he was declared innocent by the Allahabad High Court in 2021. His prime time of life has been spoiled by the State for a crime that he never committed. He was booked for rape, criminal intimidation and exploitation of SC woman under the IPC and the SC/ST (Prevention of Atrocities) Act.A trial court convicted him and sentanced him for life imprisonment. The intervention of the State Legal Service Authority helped him to prove his innocence.

Likewise, the vintage British homophobia entrapped one of the best brains of the 20th century-Alan Turing. Despite being a decorated World War hero, Turing faced prosecution due to his sexual orientation. Thanks to the antediluvian anti-homosexuality laws existed in the UK, Turing was charged with gross indecency and avoided prison by accepting chemical castration. He was given injections of oestrogen intended to neutralise his libido. The UK passed the Policing and Crime Act 2017, informally  known as Alan Tuirng Law, which granted Ex post facto and posthumous pardon to men who were convicted under the anti-homosexuality laws existed in the UK. It was a symbolic expiation of the State for the wrong it committed to those convicted for their sexual orientation.

The tragedy of Ramachandra Srinivas Siras, an author and professor at the Aligarh Muslim University,, is the Indian version of Alan Turing’s. On 8 February 2010, two men intruded into Siras’ house and caught him having consensual sex with another man. The university suspended Siras for gross misconduct. Even though he won his case against the university in the Allahabad High Court, bruised Siras was found dead in his apartment in Aligarh a week later.

Restorative Justice and the State Responsibility

In his seminal work The Little Book of Restorative Justice (2002), Howard Zehr presented Restorative justice as a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible. He pointed out that Restorative Justice is a movement to address the needs and roles of victims of crime, offenders, and communities, rather than the legalistic system that holds offenders purely in relation to violation of the state and law. Victim needs include a sense of increased involvement and empowerment with the criminal justice process, including learning the facts contributing to the crime and allowing healing through the telling of their story. Offender needs to empathize with the victim and take responsibility for their actions. The community is involved as a “secondary victim” and is encouraged to have their voices heard, while also contributing to how a safer, healthier community can be achieved.Howard Zehr in his Changing Lenses–A New Focus for Crime and Justice (1990) had pointed out that whereas in ‘retributive justice’ framework, crime is an offense against the state, but in a ‘restorative’ justice framework, crime is viewed as a violation of people and relationships.

Zehr concludes that restorative justice can be a way of life, a philosophy grounded in three ‘R’ values: respect, responsibility, and relationship. He concludes by saying that restorative justice is like a river with many sources; though it began in the 1970s in its modern form in North America, it has deeper sources in traditional societies and many tributaries are and will be its source.

The State is presumed to be the fountainhead of justice. But in the cases of George Stinney Jr., Alan Turing, Vishnu Tiwari, Ramachandra Siras, and legion of others, the State is the culprit and the citizens and the community at large are the victims. In Restorative Justice respective, the State has to expiate for its wrong and compensate the victim of its wrongful action. The State can no longer claim immunity for its fallibilities.

The Union Government has declared its ambitious scheme of overhauling the criminal justice system by introducing the Bharatiya Nyaya Sanhita Bill, the Bharatiya Nagarik Suraksha Sanhita Bill, and Bharatiay Sakshya Bill to replace the IPC, the Cr.PC and the Indian Evidence Act. But this legislative venture seems more cosmetic than substantial. Rather than re-labelling the colonial legal debris, the Government must incorporate the principles of Restorative justice to the criminal justice system and impart novel ideas like the George Stinney Fund and the Alan Turing Law to atone the State’s failings.

Faisal C.K. is Deputy Law Secretary to the Government of Kerala.Views are personal

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