By Sruthi Dixit, One Future Collective
The thing is that Alternative Justice might feel like a new or unestablished concept. 'Perhaps it's something like Cancel Culture,’ you might wonder, 'but with added legal jurisdiction'. This couldn’t be farther from the truth.
Alternative justice has a long and very well established history, and it’s often been used as a mechanism to bridge the gaps that modern justice mechanisms are unable to fill. It’s the ringer you bring in when conventional justice mechanism have thrown their hands up and said “I've got nothing here.” From Canada’s Truth and Reconciliation Commission to Rwanda’s Genocide Tribunal to Bangladeshi Village Courts, human history is in fact littered with elements of alternative justice, and they usually arise at the points when conventional justice has had no answers.
The trouble is that where conventional justice has failed, alternative justice has often failed too. But when applied only as a last-ditch, Hail-Mary pass, we can’t help but feel like the odds are usually stacked against it. At the very least, in the overall game of “Let’s play Justice,” it’s safe to say that alternative justice hasn’t really had a fair kick at the can. Add that to less education around what alternative justice entails, and subsequently less substantial understandings of where and how to apply it, and it becomes easy to see how significant gaps in genuine restoration and social healing continue to elude us.
Over the past year, alternative justice has slowly emerged as a potential answer to a lot of questions being raised around the world. From calls to defund the police to protests about abuses of power, the growing distaste for conventional governance and justice mechanisms has seen the world collectively take a step back and really reconsider long-established ideas around ‘victims’, ‘perpetrators’, and ‘justice’ altogether. What is it we are seeking when we seek justice? Is there really an alternative way of doing this? And what is alternative justice altogether?
By walking us through a view of justice that is right-based and survivor-centric, the article below is a first step toward demystifying what “Alternative Justice” means. It helps us understand the history of this method so that we can better apply it to our future. Moreover, it helps us recognize that governance is built on institutions. And when the institutions no longer fit the needs of the people, we have to search for better alternatives.
What are alternative justice processes?
A traditional idea of the term “justice”, is that of old men in robes delivering judgments based on evidence or lawyers in suits and robes, vehemently arguing to protect their clients. It is sometimes difficult to imagine justice outside the bubble of lawyers, judges and courts. Alternative justice processes (AJP) however, envision justice outside courtrooms. They are often seen as healthier means to access justice, as they do not require as many resources or as much time. AJP is done with the consent of all parties involved, and also is more personalised, trying to account for the interests of all the parties involved.
Arbitration, negotiation, mediation, and conciliation are some ways in which AJP is already practised within the Indian judicial system. However, these are usually limited to a certain type of civil and commercial litigations and have not yet been adapted to the larger universe of cases that exist within the system, especially where harm is perceived to be done to the society at large or against the state, as with criminal cases.
We have a very linear understanding of what justice can look like and which confines our journey towards justice, especially social justice. A majority of the Indian population is unaware, and in many cases indifferent to, alternative ideas of justice that look beyond the barriers of formal justice mechanisms. Another reason why AJP is commercialized but its potential in other aspects of justice remains untapped is that most welfare legislation does not provide for AJP to exist within the statute. Incorporating AJP into the letter of the law, especially in welfare legislation and rights-based litigation might make justice more accessible to the Indian population. It will also undoubtedly reduce the backlog of cases in courts.
Adopting AJP within Indian statutes
An example of AJP in practice is the mechanism under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). This is one of the most comprehensively written social justice legislation which provides a redressal mechanism that lives (for the most part) outside the formal justice system. The POSH Act requires workplaces [with more than 10 employees] to establish an Internal Complaint Committee to address complaints of sexual harassment at the workplace. These committees are composed of employees, and they decide complaints on basic principles of natural justice (did both parties have the chance to put forth their case?) and also in various instances set precedents where survivors decide what justice means to them. Remedies such as conciliation at the request of the complainant, which can go a long way in addressing trauma, have often been adopted by ICCs across India, making this an example of survivor-centric legislation rooted in AJP.
The POSH Act is not the only Indian statue incorporating AJP. Back in 1987, attempts were made in the Legal Services Authority Act to enable various legal service authorities to present to parties the opportunity to amicably settle their differences and avoid the ordeal of going to court. However, in its present functioning, these authorities predominantly deal with cases under the Motor Vehicles Act or the Negotiable Instruments Act (cheque bouncing cases) and petty offences. Section 320 of the Criminal Procedure Code also provides for offences that are compoundable: meaning, offences for which parties can settle the matter on amicable terms without pursuing criminal proceedings in Court. Examples of compoundable offences include cases of adultery, causing a miscarriage, cheating, and defamation. While these mechanisms are seen as conciliation and outside of the regular justice system, it is important to note that when parties want to adopt these methods, they still require the approval of the court.
Closer within the legal system, although it still deserves a mention, is the concept of plea bargaining, introduced into our Criminal Procedure Code in 2005. Plea bargaining is a provision under our law by which someone accused of committing an offence has the option to plead guilty to a charge in return for a lesser sentence, or even an agreement from the complainant to drop the charges.
Family group conferences, circle sentencing and more: International AJP best practices, incorporated within the law
New Zealand’s Children, Young Persons, and Their Families Act 1989 is an example of how healthy implementation of AJP incorporated through the letter of the law will bring about positive upward trends in social justice. Also known as the Oranga Tamariki Act, the law introduced the concept of family group conferences (FGC) in which decisions regarding children, especially youth offenders or victims of abuse, are mediated between family members, social workers, police and the children, all to act in the best interests of the child. It is therefore no surprise that New Zealand has one of the lowest rates of juvenile offenders in the world.
In Canada, circle sentencing, or peacemaking circles are community-directed processes in partnership with the formal justice system, in order to promote healing for all affected parties, and an opportunity for the offender to make amends. Sentencing plans may incorporate commitments by the system, community, and family members, as well as by the offender.
Restorative justice is not an unknown concept in India. Customs play such a huge part in our lives that they are recognised as a source of law under the Constitution (Article 13(3)). Justice systems based on customary law aim to reconcile relationships and are more corrective than punitive. For example, the village council in Arunachal Pradesh, called the Kebang system, seeks to repair harm caused by offences rather than deter offenders.
Where Do We Go From Here?
It is evident that AJP has a long way to go, in India. The laws spoken of, above, do not help in making access to justice easier, and neither do they implement more rights-based, survivor-centric ideas of justice.
Incorporating AJP into statutes is important, and will require the imagination of all stakeholders involved: the lawmakers, lawyers, judges, civil society organisations, and the general public, to make it work. Law and policymakers should operate from an intersectional lens, acknowledging lived experiences of the diversity of the population they govern. There is also a necessity to raise awareness about AJP to as many people as possible and encourage them to engage in such mechanisms.
Embracing alternative justice processes within legislation is a way to encourage existing systems of formal justice to move towards restorative justice practices, and to imagine a more expansive definition of the word “justice” itself. Alternate justice processes encourage us to think of the overlap between justice, community, healing, and the question: “How best can we move forward, from here?”
The People's Podium is a monthly column, in collaboration with One Future Collective, that explores current policy-legal affairs in India and around the world, from a lens of social justice and intersectionality.
About the author
About the author
Sruthi Dixit is a Research Associate at One Future Collective.
One Future Collective is a feminist youth led not for profit based in India. Their mission is to nurture radical kindness in people, communities and organisations through the work they do on gender justice, feminist leadership and mental health, to enable a world built on social justice led by communities of care.