Restorative justice is a new movement in the fields of victimology and criminology. Acknowledging that crime causes injury to people and communities, it insists that justice repair those injuries and that the parties be permitted to participate in that process. Restorative justice programs, therefore, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime. They become central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender, and community. The restorative process of involving all parties – often in face-to-face meetings – is a powerful way of addressing not only the material and physical injuries caused by crime, but the social, psychological and relational injuries as well. When a party is not able to or does not want to participate in such a meeting, other approaches can be taken to achieve the restorative outcome of repairing the harm.
In addressing offender accountability these approaches can include restitution, community service, and other reparative sentences. In addressing victim and offender reintegration they can include material, emotional and spiritual support and assistance.
A definition of restorative justice that emphasizes the importance of both restorative processes and outcomes is the following: Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders.
Restorative justice is different from contemporary criminal justice in several ways.
First, it views criminal acts more comprehensively — rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims, communities and even themselves.
Second, it involves more parties in responding to crime — rather than giving key roles only to government and the offender, it includes victims and communities as well.
Finally, it measures success differently — rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented.
Stephen Schafer studied existing compensation schemes in 29 countries in 1958-59 and gave the following suggestions.
- Compensation to victims of crime could be brought within the purview of criminal procedure and dealt with in the same criminal court which deals with the offense.
- Compensation may be claimed by the victim but if he doesn’t, the court should deal with it as part of its fundamental duties,
- If the question of compensation leads to delay in the pronouncement of sentence, the court should pass a part sentence and may postpone its decision in relation to compensation.
- Compensation should be fixed with reference to the offender’s economic and social position.
- Where the offender is not able to compensate, the state must undertake its responsibilities.
- The state should set up a compensation Fund with the aid of fine and other sources of revenue.
The U.N. Congress on Prevention of Crime and Treatment of Offender took up the cause and contributed substantially in drafting a declaration of victim’s right. It was placed on the agenda of the 7 U.N. Congress in Milan, August-September 1985. The U.N. General Assembly adopted the Basic Principles of Justice for Victims of Crime and Abuse of Power; this declaration is specifically concerned with societal response to the needs of the victim. The declaration deals with two focal areas: (a) victims of crime and (b) victims of abuse of power”. The first category relates to the conventional definition of crime and the declaration lays down norms for providing for i. standards for access to justice and fair treatment, ii. restitution from the ‘offender, iii. compensation from the State and. iv legal assistance.
- To know the problems of victims,
- To understand the offenses against the victims,
- To know the laws related to victims,
- To understand the compensation of victims,
- To know the Rights of victims,
- To know the remedies of victims
The Indian Criminal Justice system is based on Deterrent and Preventive theory. The main concern of the system is to deter the offender and the society at large against the commission of the crime and provide compensation to the victim. As a result, the focus is on the offender and the needs of the victim are not given importance. There is no law in India regarding victim so they can have a say in the criminal justice system apart from the newly added S. 357 of the CrPC on compensation of victims.
However, a victim does not participate in the prosecution and therefore feel alienated. The interest of the victim can only be protected if they participate actively in the investigation and the trial. The practice of Restorative Justice in India is almost non-existent. The Criminal Justice System in India is not victim-oriented, but punishment oriented based on retributive, deterrent and reformative theory. The interest of the victims gets suppressed under these laws. The concept of compensation, restoration and reformation are not common here. The victimization theory is still in its abstract form and requires much attention. Section 357-358 of Criminal Procedure Code, 1973 states to provide compensation to the victim. It provides that the compensation can be awarded irrespective of whether the offense is punishable with fine or whether the fine is imposed. It can be viewed as a form of restitution. Usually, the compensation awarded is quite inadequate to meet the needs of the victim. A beginning of Restorative Justice can be seen in section 320 of criminal procedure code, 1973. It states the compounding of offenses. It is an effort to incorporate Restorative justice into the prevailing system. This gives the victim an opportunity to mediate with the offender and compromise, although, the consent of the court is required to finalize the case and agree with the mediation and compromise. But this may not always provide satisfaction to the victim. Many a time, compromise is done due to coercion, force or corruption. The victims are not provided with remedies in such cases. In the name of Restoration, it is simply disposing of the cases.
The main objective of restorative justice that is the realization of the crime by the offender and thus repairing the harm caused to the victim remains unaddressed. The offender simply escapes from punishment through this practice. There is a dire need to investigate these consequences and amend the section accordingly. The prevailing Criminal Justice System requires a shift towards the Restorative Justice without departing from the safeguards that have been given to the accused persons in our constitutional and criminal jurisprudence. Restorative justice keeps both the victim and the offender at par. The offenders are given respect and given the opportunity to repair the harm caused by the crime and reintegrate in society in the ways that lead to lawful behavior.
We have seen in many cases, that courts tried to compensate the victims by providing financial assistance to the victims. In Delhi, domestic women working forum case Court compensated victims by directing the concerned authorities to pay Rs 10000 each victim. In Guadalupe M.J. Cherian v State of UP court directed the state of UP to pay Rs. 2, 50,000 to two sisters who were raped by an unidentified assailant. State of Gujrat v Hon’ble High court of Gujrat Question was raised that weather victims of crime form the wages of prison labor needs to be compensated or not. In this court directed that state that they should make provisions where Victims needs to be compensated from the money earned by the prisoners in the prisons. The Government of India, Ministry of Home Affairs by its order dated 24 November 2000 constituted the Committee on Reforms of Criminal Justice System to consider measures for reviewing the criminal justice system. The committee submitted the report explaining how the SC and HC evolved in bringing the concept of monetary compensation to victims along with other reliefs. The report further stated that “medical justice to the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of the liberal package of reliefs and remedies forged by the apex court.
The decisions in Nilabati Behera v. the State of Orissa and in Chairman, Railway Board v. Chandrima Das are illustrative of this new trend of using constitutional jurisdiction to do justice to the victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the state for the failure to protect the rights of the victims.” In Palaniappa Gounder v. State of Tamil Nadu High court Imposed a fine of 20000 on the accused and after sentencing him directed that out of 20000 a sum of 15000 should be paid to the victim under Section 357 (1) (c) of the Code of Criminal Procedure, 1973. In Sarwan Singh v. State of Punjab Court observed that “It is the duty of the court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation. After consideration of all facts of the case, we feel that in addition to the sentence of 5 years of rigorous imprisonment, a fine of Rs. 3,500 on each of the accused under Section 304 (1), IPC should be imposed.”
In Guruswamy v. State of Tamil Nadu court imposed a fine of 10,000 thousand on the wrongdoer and directed that same should be paid to deceased widow wife and her minor children because they were completely dependent on the deceased. Court changed its firm understanding after the case of Sarwan Singh v State of Punjab in the case Hari Krishnan and the State of Haryana v. Sukhbir Singh and others. “The power under Section 357 Criminal Procedure Code is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a recompensatory measure to rehabilitate to an extent the beleaguered victims of the crime, a modern constructive approach to crime, a step forward in our criminal justice system … The payment by way of compensation must, however, be reasonable. What is reasonable may depend upon the facts and circumstances of each case.” In Rachhpal Singh v. State of Punjab High Court first directed to pay Rs 2,00,000 to the two victims by the accused, but further when they appealed to SC it was proved that accused is not in a position to pay 2,00,000 to both the victims so High court order to pay Rs 200000 was modified and amount for compensation was reduced to Rs 100000.
Restorative justice is a set of ideals about justice that assumes a generous, empathetic, supportive, and rational human spirit. It assumes that victims can be generous to those who have harmed them, that offenders can be apologetic and contrite for their behavior, that their respective ‘communities of care’ can take an active role of support and assistance, and that a facilitator can guide rational discussion and encourage consensual decision-making between parties with antagonistic interests. If anyone of these elements may be missing, then it can potentially weaken the entire restorative justice process.
Furthermore, it may not be possible to have equity or proportionality across restorative justice outcomes, when outcomes are supposed to be fashioned from the particular sensibilities of those in restorative justice encounter. Similarly, restorative justice can be criticized on various grounds from Indian perspectives that can be understood with the help of the diagram given below.
Juvenile Justice made a departure from the criminal justice model of punishment recognizing the negative influence of association with adult offenders and the higher possibility of reformation of children being in the growing age where their capacities are still being built and developed. While children are protected from the baneful effects of prisons, the victims of their offenses have found no solace from the juvenile justice system. The victims feel that children are let off easily even when they commit a serious offense or repeat offenses.
Juvenile Justice adopted the path of reformation of children found to have committed an offense through various community based reformative and rehabilitative measures and using institutionalization as a measure of last resort and for the minimum period till suitable community-based alternatives are found for them. For example, as per section 18 of the Juvenile Justice Act, 2015, the Juvenile Justice Board can pass orders for Child in Conflict with Law such as:
- direct the child to participate in group counseling and similar activities;
- order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board.
In designing a community service program for children above the age of 14 years, such as maintaining a park, serving the elderly, helping at a local hospital or nursing home, serving disabled children, serving as traffic volunteers. The Juvenile Justice Board may combine the restorative justice approach by keeping in mind:
- the nature of offense committed by the Child in Conflict with Law
- the circumstances of its commission
- the impact on the victim
- lessons that should be taught to the Child in Conflict with Law
- how the program will help to correct the harm to the victim any offense is fit for restorative justice if it is applied appropriately. Many countries in the world are using restorative justice to rehabilitate children who have committed crimes. The preconditions for adopting the restorative practice in a given case are:
- The Child in Conflict with Law must accept a commission of an offense.
- The Child in Conflict with Law (and not their parents) must be ready to accept responsibility for correcting the wrong.
- The Child in Conflict with Law must be ready to apologize to the victim.
- The victim will have a say in deciding what he/she want the Child in Conflict with Law to do to make amends.
- It cannot be demeaning the offender but must be focused on making good the harm caused.
- The victim should be assisted in not demanding something which is beyond the means of the Child in Conflict with Law to fulfill.
Restorative justice practices can also be used as a very effective positive disciplining tool among the children in Children in Conflict with Law as well. It is useful for conflict resolution among children and when there is some peer harm involved. While this requires some training of the staff, it is not a complex process. It involves getting both parties (that have caused harm and that have been harmed) to agree to a conference where the victim can speak about the impact and the accused is also given a chance to explain his/her behavior. It is a forum where people deal with wrongdoing and conflict. The facilitator creates a safe space for everyone to participate. The facilitator does not influence the decisions taken by the participants but allows them all to speak and find their own solutions.
Restorative justice has not yet changed the basic course of the criminal justice system. It has proven to be a more effective alternative to prison or other forms of punishment, but it can produce mitigated results in terms of victim participation and reparation for injury. Victims’ problems are not resolved once and for all by the solutions made available to them. The objectives of reparation and healing put forward in these approaches must not confine us to a simplistic view of their needs and the complex processes associated with their recovery. While its objectives may be laudable, restorative justice is nevertheless a dis-aggregated model. Combining relational justice, participative or consensual justice and transforming or reforming justice, restorative justice has become a catchall concept that has something for everyone. The wide range of practices, the orientation of policies and objectives primarily toward offenders, and the lack of consensus on theoretical principles and its impact fuel the current debate. Lode Walgrave, an ardent proponent of this approach, agrees that the “piecemeal proliferation”, the “mix of good intentions” and the “rampant growth of programs” threaten the value and potential of restoration. We must be careful not to be hasty in embracing this option and take the time to clearly identify the parameters of the underlying philosophy and the associated practices, implement initiatives in this area gradually and adopt an array of strategies.
It is also important to target best practices, gather data on bigger groups and the long-term effect of programs. The research should also make it possible to conduct more thorough analyses in order to get a better understanding of victims’ concerns or their position on issues like forgiveness and reconciliation with the offender. The allocation of resources is a key factor in the attainment of such objectives. Restorative justice has great potential for the parties involved and for the community. However, it is not the magic solution to all evils. It remains an option for some crimes in some circumstances and under some conditions. It must not be considered a cheap form of justice or pretend justice. Nor must it trivialize the valid demands of victims. The restorative justice model will gain legitimacy if victims’ needs are placed in the forefront and it succeeds in mobilizing all the players in the justice system, victim support groups in particular. Support groups must be actively involved in the design, implementation, and evaluation of restorative justice programs. Finally, discussion of the restorative justice approach must not be confined to a small circle of experts. The community will never embrace and participate in restorative justice unless it understands its purpose and its aims.
Ahuja Ram, criminology: victim in the crime, Rawath publication Division, New Delhi 388, 393, 396 (2006)
Criminal procedure code, 1973, section 357- 358
TOWARDS A RESTORATIVE CRIMINAL JUSTICE SYSTEM: VICTIM OFFENDER MEDIATION, BhavyaSriram, and Maheshwari S, p. 1910th
D.P. Kohli Memorial Lecture on ‘Criminal justice system – growing responsibility in light of contemporary challenges’ by Hon’ble Sh. K.G. Balakrishnan, Chief Justice of India (New Delhi – April 2, 2009), p. 12Dehli Domestic Working Women Forum v National Commission for Women 1994, SCALE 11
1995 Supp 3 SCC 387
(1978) 7 SCC 392(1993 2 SCC 746)
(2000 Cr LJ 1473 SC)
Government of India (2003) Report of the Committee on Reforms of Criminal Justice System, 1, pp. 75–84
(AIR 1977 SC 1323)
(AIR 1978 SC 1525)
1979 Cr LJ 704
1957 AIR 637
(AIR 1988 SC 2127)
Hari Krishnan and the State of Haryana v. Sukhbir Singh and others (AIR 1988 SC 2127).
2002 Cr LJ 3540 SC.
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