Sexual offences have now become a commonplace in India. Punishment is the society’s customary response to a crime. It neither is beneficial to the victim nor has any deterrent effect. The criminal justice system which is expected to deliver a sense of justice has failed in its current response to satisfy the large majority of the victims. The horrific incident in Delhi in 2012 that led to the sexual assault and murder of the twenty three year old shook the human conscience all over the world. Death penalty is the ultimate deterrent in rape cases in India, which is rarely given and it embodies the notion that justice is seen to be done. States often turn to symbolic practices of punishment rather than concentrating on eliminating the crime itself. Society can achieve a collective catharsis of anger and fear by punishing the perpetrators while avoiding the challenging work of fixing more systemic social evils. There is social stigma attached to sexual offence victims and historically they have been met with denial and disbelief, with society failing to develop an adequate response to a crime. In recent years improvements called for by reformers and feminists have seen that sexual offences are taken more seriously. As a result the procedures have improved and victims are said to be provided with a fairer treatment. Despite all this efforts sexual assault remains the most under reported form of personal violence which is prevalent in India. Hard hitting policies of tougher penalties, longer sentences and stringent release practices do little to address the majority of sexual offending. The victims are reluctant to pursue a prosecution, not wanting to be drawn into the protracted adversarial process. This exposes the fact that the conventional criminal justice system, with its single option of investigation by police and prosecution through the courts, is failing to provide an adequate response to the majority of victims of sexual assault.
The justice system should however be fair, flexible and benefit the society. The pragmatic approach to be adopted is the application of restorative justice principles. Restorative justice aims at a holistic approach taking into account the conditions of the victim and the offender. It also emphasizes the reintegration of offenders into societies rather than their control through stratagems of punishment and exclusion. It can be accomplished through cooperative processes that include identifying and taking steps to repair harm, involving all stakeholders, and transforming the traditional relationship between communities and their governments in responding to crime. The advocates of restorative justice argue that it is more likely than retributive justice to reduce the incidence of crime because of its principal concern for the safety of victims. Studies suggest that positive reinforcement of good behaviour is a much more effective way of changing maladaptive behaviour than either punishment or negative reinforcement. The society has now awakened to realize that the punitive options under the current system neither benefit the society nor do they serve as an effective deterrent. Forgiveness in the form of magnanimity in face of a crime to a victim is nearly saintly to expect in case of rape and extreme acts of sexual offences. Hence the need of the hour according to the author is an integration of the two concepts i.e. retributive and restorative as part of the same system of justice where they would complement and work in tandem with each other rather than operate as opposing or alternative systems. The ulterior objective of the system should be to ostracize this challenge and not the offender.
Sexual assault is complex, prevalent and insidious. Of all the offences, sexual offences are considered to be the most treacherous. Violence against women, including sexual violence, has been a persistent and chronic social problem within India.[i] Presently, the criminal justice system is far from perfect.[ii] The focus is more on how evidence was gathered than about what that evidence means. The existing criminal justice system is one designed by lawyers, for lawyers and the result is that victims and offenders are often bystanders in the proceedings[iii]. The system in itself is inadequate in terms of dealing with offenders, victims and communities in the aftermath of crime. This system is seen as retributive, concentrating solely on fixing blame and guilt. Recent legislative response has been aimed at monitoring offenders in communities and keeping them in prison.[iv] This has been done through longer sentences, and such other stringent measures. Such focus does not address the problems which victims and communities daily face.[v]