Restorative Justice in India: Old and New

Abstract

This chapter examines various traditional practices of restorative justice in vogue in India. More than two-thirds of the Indian population lives in villages, 80% of which have populations of less than 1000. Life in these tiny communities is regulated largely by age-old traditions and customs, folkways and mores, of which conflict resolution is a significant part. These practices coexist and often conflict with the formal criminal justice system introduced by the British that continued after India gained independence. Family itself resolves intra-family conflicts of all types. Since almost all marriages are arranged within the endogamous caste community by the parents of the couple, and a quarter of all families consists of joint and extended families, the presence of parents, grandparents and married siblings helps solve disputes amicably. Unresolved conflicts within and between families of the same caste are settled by the Caste Panchayats—informal committees of elders of the same caste. Certain caste institutions, such as monasteries, also settle even serious disputes. Two such case studies in Karnataka are examined here. Inter-caste and neighbourhood conflicts are resolved by the unelected Panchayats of the villages, generally composed of elderly members of all castes. Minor crimes, misdemeanors and civil disputes are settled within the villages amicably within a day without much cost. The process of hearing the parties, their witnesses and evidence, though comparable to that of the formal justice system, is more inquisitorial than adversarial. The Panchayat admonishes the erring party, imposes damages, minor penalties and, in more severe cases, excommunication or banishment from the village. The parties rejecting the decisions of the informal panchayats approach formal courts. But very few cases go to the police or court. Consequently, few crimes are reported to formal authorities, and India is thus a low-crime country! Recently, the state itself is imitating restorative justice practices in the formal justice system. They include state-funded compensation to the victims of bodily crimes, mediation, arbitration, plea bargaining and restitution. Informal hearing methods are followed in the Family Courts, Consumer Courts, Nyaya Panchayats and Gram Nyayalayas where lawyers are not allowed. Each of these innovations is discussed here.