Reparative Justice in Caste Atrocities: Can Indian Criminal Law Go Beyond Retribution?

The origin of caste system is peculiar to India. It is a social hierarchy which divides people into rigid hierarchal groups. It is much similar to the western practice of racism wherein people’s social status is fixed at the time of their birth. This system systematically categorises people into Brahmins, Kshatriyas, Vaishyas, and Shudras, pushes Dalits outside and treats them as an inferior. This exclusion is based upon ancient and cultural practices which promote discrimination against the Dalit community. Caste system is hereditary in nature and unlike the European phenomenon of class system, the caste system does not allow a person to grow out from his/her caste. Dr. Bhim Rao Ambedkar and other lawmakers of India acknowledged this system of social hierarchy and took an affirmative action by creating a socially inclusive legal document, the Indian Constitution. Unlike the USA’s Constitution which was “color-blind”, the Indian constitution was created with a vision to protect the interests of all, especially the minorities. Despite the rights provided by the constitution and the efforts made by legislation to prevent caste atrocities through laws such as the SC and ST (Prevention of atrocities) Act , incidents of caste-based violence and discrimination continue to take place in every aspect of social and public interactions. This article serves as a critique to the Indian legislation which is largely based upon the retributive approach and only focuses on individual caste-based crimes. This paper argues that the caste is a systematic method of discrimination built upon social sanctions and therefore it cannot be dismantled solely by penalizing individual actions, still this is all that our criminal laws do. There is a need for a holistic approach to resolve this years old system of social stratification. The existing legal framework is based upon retribution and lacks reparative characteristics like community healing, public apology etc. Inspired by the models of reparative justice followed in countries like South Africa, Canada, Rwanda etc, this paper proposes a similar model to be adopted and implemented by the Indian society. Lastly, this paper addresses the various gaps in the Indian framework and proposes for a structural change in the Indian model of justice. Many Indian laws focus on compensation and rehabilitation but such laws are poorly implemented and that’s why they are not very effective. While this paper recognizes un-effective implementation as a limitation of the Indian legislative model, it also argues that non-implementation is not the sole issue rather there are inherent flaws in the legislation too.