Mainstream, VOL LIV No 29 New Delhi July 9, 2016
Gulbarg Society Judgement: From Retribution to Restoration
Saturday 9 July 2016
by Binish Maryam
Ethnic violence leaves in its wake devastation on the one hand and deep psychological trauma on the other. The suffering of the victims becomes part of the collective psyche of the society. The strategies that the Indian state generally adopts to build peace in the post-violence scenario are not well equipped to take care of the antagonisms, grievances and pain that constitute the collective consciousness of the conflicting communities. Often monetary compensation and legal justice are used as tools to gain normalcy, but the erosion of trust and confidence between commu-nities is hardly addressed. In such circumstances although there is absence of violence, the apprehension and prejudices become an integral part of the community and its consciousness. Unless we initiate a process of restorative justice along with retributive justice, building peace will remain a distant dream and society will continue being prone to the recurrence of communal violence.
The Nuremberg trial, held by the Allies after World War II, brought all the perpetrators of human rights violation in Germany to undergo the legal judicial process. The culprits were held responsible for their crimes and sentenced under the criminal justice system. This model of justice was not accepted in South Africa in the post- apartheid period. In his book, No Future without Forgiveness, Desmond Tutu, the Archbishop and social right activist in South Africa, writes that the retributive justice system is more acceptable in the case of inter-state conflicts where people are confined to their own boundaries whereas in case of intra-state conflicts where the con-flicting groups have to stay together, there is a need for restorative justice so that the relations between the groups are restored.
Justice as a concept can be of two types: one that is retributive in nature and the other that is restorative in character. When we talk about justice, it is mostly in the legal context where the guilty are punished for their crime. This kind of justice is retributive justice. One argu-ment given in favour of legal justice is that if the offenders are not put behind bars, the victims may develop an idea of personal revenge and vengeance, which could be more dangerous for the society. It is argued that only trials serve to reinstate the lost dignity of the victims and re-establish their faith in the political system and its value. The legal procedure establishes individual accountability and thus eliminates the perception that the whole community is responsible for the wrong done. It also brings an end to impunity that sometimes is considered as a reason for increased human rights violations.
After every episode of mass violence, people long for justice but this wait hardly ends as the record of delivering legal justice to victims of communal violence is not very impressive in India. Gujarat has been one of the first cases where the culprits of mass violence have been brought to justice. This is a welcome step towards reinstating faith in the democratic and judicial system of our country. In earlier episodes of mass violence—like Nellie (1983), Delhi Sikh Riots (1984), Bhagalpur (1989), Mumbai (1992-93) and Kandhamal (2008)—a culture of impunity has prevailed. In such a scenario the Gujarat verdict comes as a ray of hope where the perpetrators of riots can be sent a message that impunity won’t remain a norm anymore, and if they are involved in the violence they will be prosecuted and justice will be done.
On February 28, 2002 the Gulbarg society in Ahmedabad witnessed brutal killing of 69 innocent persons, including former Congress MP Ehsan Jafri. Fourteen years after the incident 24 people have been convicted in the case, 36 have been acquitted and the charge of criminal conspiracy has been dropped. While the prosecution wants stringent punishment for the convicted, the defence seeks leniency in sentencing the convicts. For the family of the victims it is half-hearted justice as the masterminds are still roaming free. They call it a diluted and weak verdict. They believe that the 32 convicts should not have been acquitted in the case and among those convicted all should have been given life imprisonment; whereas families of those convicted believe that those with money and influence have got away while the poor and the weak have been caught in this case. Even after the announcement of the sentence a legal battle will continue between the two parties to prove guilt and claim innocence. The closure of the case and closure of pain remain elusive at the moment for either side.
Today in Ahmedabad the riot survivors live in desolate ghettos and resettlement colonies that at one and the same time remind of supreme neglect and denial. More than a decade has passed but the building where Ehsan Jafri resided is left all empty with no sign of life in it. The blackened walls of the Gulbarg society reflect wounded psyche, withering trust and permanent divide. The mistrust amongst the communities is so high that a day before the Naroda Patiya verdict most Muslim residents locked up their houses and left for a safe destination. People living in the relief colonies believe that real peace can come when the two communities will share maximum space with each other. Polarisation of communities on religious grounds is so stark that the peace that is visible in the form of absence of direct violence can be easily disturbed anytime. An atmosphere of mistrust and apprehension has developed amongst the people, thus raising the need for authentic reconciliation.
The retributive system recognises criminal guilt, not political or moral responsibility. The court is able to punish only a handful of culprits involved. Further, the emphasis on the individualisation of guilt is inherent in the retributive process, which overlooks the community dimension in conflicts. The legal sentences assuage the grievance and pain of the victims, still the family of convicts is left unsatisfied and broken. One community is at peace and not the other. Therefore the idea of justice needs to be revisited. Retributive justice alone cannot establish peace. For rebuilding relations there is a need for restorative justice as well.
Restorative justice seeks at mediating peace between groups in conflict. The ultimate aim is to restore relations as far as possible. In the restorative justice system the problem is viewed as that of the community as a whole with the purpose of achieving reconciliation and social harmony. This is a process where all the members of the community get involved and they are given a lesson on how to peacefully resolve a conflict. The healing process starts with a personalised description of the traumatic events by the victims or their representatives. The acknowledgement of the tragedy and injustice of losses by the aggressors is accompanied by a formal apology and a request for forgiveness.
The concepts of acknowledgement, apology and forgiveness are not familiar to the Indian system. Never after any gruesome event of violence has our society felt the need to indulge in these ideas. Amidst this battle for legal justice what we often forget to notice is the individual pain, trauma and permanent scar on the minds of the victims as a result of these brutal massacres. The Gulbarg Society judgment has succeeded in bringing legal justice but it has failed to bring peace for the victims and society at large. The survivors of violence are living with deep psychological trauma, as there is no formal mechanism to address this traumatic mindset; so the pain lingers. The individual pain of the victims of violence, if not addressed properly, leads to the permanent division of society. There is a need to come up with a peace model that takes care of both the physical and emotional damage done during riots. Any society should build upon the strength of the criminal law process, the retributive model, but to move it as far as possible towards the restorative ends. Both the retributive and restorative justice systems are equally important for the establishment of long-term peace.
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12. “Gulberg Society Massacre: Court Sentences 11 Persons Convicted Of Murder To Life”, The Indian Express, June 16, 2016.
13. “Gulberg Society Verdict: This Is Not Justice, My Struggle Continues”, Says Zakia Jafri, The Indian Express, June 17, 2016.
14. “Gulberg Massacre: Teesta Setalvad to Appeal against ‘Diluted, Weak’ Verdict”, The Indian Express, June 17, 2016.
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16. “A Ground Zero in Gulberg Society: the Remains of 14 years, Blackened Walls, Broken Soft Toys”, Ritu Misra and Leena Misra, The Indian Express, June 3, 2016.
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18. Rehana Rathore, personal interview, Naroda Patiya, Ahmedabad, October 22, 2012.
19. Abida, personal interview, Naroda Patiya, Ahmedabad, October 23, 2012.
20. Rehana Bano, personal interview, Naroda Patiya, Ahmedabad, October 24, 2012.
Dr Binish Haryam is an Assistant Professor (Ad-hoc), Maitreyi College, University of Delhi. She can be contacted at e-mail: email@example.com