Whenever her husband wanted to get intimate with her, Asha*, the mother of two teens, was taken to a beauty parlour. Her husband instructed the hair dresser for a specific type of hair cut that he felt would arouse him. Whenever this happened, Asha felt used and she decided to move the court for a divorce. She and her husband then sat through sessions of mediation at The Tamil Nadu Mediation and Conciliation Centre, Madras High Court. Through sessions the couple was made to see the other’s point and arrive at a consensus.
Uma Ramanathan, coordinator at the centre and the managing trustee, Foundation for Comprehensive Dispute Resolution, says that mediation as a means, is part of restorative justice or therapeutic jurisprudence. She says that it can provide solutions for cases that cannot be looked into by courts, as there are different factors that have to be considered.
“In many such instances of marital discord and even domestic violence there are a number of complex factors that need to be understood. A court set up may not be congenial for these. That is why it works very well in cases of marital discord and domestic violence. In such cases court proceedings can amplify the problems rather than finding a sane solution,” Ramanathan says.
Ramanathan has been training mediators at the centre to work outside across the state and country.
Remya Mariam Raju, assistant professor, department of criminology, DRDCCC Hindu College, says that it gives the parties a plethora of options for agreement through mediation. “It is voluntary, and both have to agree for mediation. The whole process takes about 60 days, within which they must report to the judge with the agreement. Main advantage is both parties can come to a solution, with the mediator (acting) like facilitator,” she said.
Remya, who did a study on mediation on matrimonial cases, notes that the initiative was a recent phenomenon here, while it has evolved abroad with concepts like family groups and peace-making circles.
Juvenile justice is an untapped area
However, if there is one field where it can be used more effectively and is yet to find acceptance is in the scope of juvenile justice.
In fact, Tamil Nadu has the most number of children in child care institutions, which also includes observation homes for children in conflict with law. Experts working in the field say that reformation is not possible as the environment is not congenial for it in these homes.
“Instead of sending them to observation homes, concepts of restorative justice is a good way to reform them,” said Remya.
In the backdrop of the cases like in Pollachi, it is important to understand that there is a deep seated problem that doesn’t arise overnight. “The stint at homes doesn’t change them much and they go back to crime,” says Ramanthan.
Andrew Sesuraj, who is state convenor of the Tamil Nadu Child Rights Observatory, says that India acceded to UN Convention on the Rights of the Child (UNCRC) way back 1992. “The key component of it was deinstitutionalisation of children in homes. Restorative justice can bring down the numbers in homes apart from nipping crime in the bud,” he says.
What is unique about restorative justice?
Howard Zehr, who is the pioneer of the modern concept of restorative justice, has described it in his book ‘The Little Book of Restorative Justice’ as “rather than obsessing about whether ‘offenders’ get what they deserve, restorative justice focuses on repairing the harm of crime and engaging individuals and community members in the process.’
In the Western world, it has found acceptance with the application of plea bargaining, victim-offender mediation, out of court settlement—different means of restorative justice—in the existing legal system.
Batting for its wider application in India, M Srinivasan, professor and head, department of criminology, University of Madras says that with the high pendency of cases, restorative justice can be a viable solution when dealing with compoundable offences. He adds, “Traditional approaches to the handling of crime problem have not altered the position of victims of crime for better in any way. Research conducted in many parts of the world have expressed their favour for restorative justice to improve their conditions or at least bring back to near normal conditions.”
Ramanathan recounts the case of two farmers that had a fight over watering of their fields, when one of them murdered the other in a fit of rage.
Both were poor and the wives of the deceased and the offender were unable to take care of the land. So the families mutually agreed upon the offender tilling both lands and handing over the yield from the land of the deceased to the latter’s family “It was a rare case and both families found this arrangement to be more beneficial for both and hence they decided to arrive at a consensus,” she says.
Ramanathan also discussed the Switzerland model of mediation where there are mediation set ups at every level-in schools, at workplaces and for marriages. “Maadhyam International in New Delhi has managed to set up peer mediation groups in schools for students. I have written to schools in the city, but I am yet to get a response,” she added, illustrating the difficulty in establishing a similar model in the city.