Concept of Restorative Justice & Legal Position in India

Overview : Concept of Restorative Justice & Legal Position in India

• Introduction
• Principles of Restorative Justice
• Restorative Justice and Indian Laws
• Panchayats
• Customary Laws
• Civil Cases
• Criminal Cases
• Section 320 of Criminal Procedure Code, 1973
• Plea Bargaining (Sections 265A-L of the CrPC)
• International Approach on Restorative Justice
• Conclusion

Restorative justice is a procedure which can be applied to restore and reduce conflicts between the parties, to help in sustaining a wholesome environment through healthy communication to mend the harm caused. It enables in restoring some basic questions such as, who has been hurt and what are their requirements. Engaging the ones who are affected is extremely required in order to bring out the essence of restorative justice. [1]

Restorative justice magnifies the weakness of the offenders and continuously strives to draw the strength of these individuals, helping in discrediting their criminal behaviour. The concept that surrounds restorative justice is respect, accountability, integrity, empathy etc. The International, National and Local Justice System along with the correction departments, help in administering and moulding policies which would be more relevant to catering the requirements of crime victims and the community at large. Restorative Justice indulges in mitigating the process of generating justice and fostering accountability, which is actively developing throughout the world.[2]

Introduction

Restorative Justice is a kind of surrogate procedure in order to achieve justice, here the society addresses an offence being committed and seeks reparation for the same. This is a considerably newer concept, which is gaining acceptance in the society at quite a speed. It is a reaction which revolves around the importance of restoring the loss suffered by the crime victim, the offender is held accountable for the damage caused and helping in establishing peace. The community and the crime victim strive to resolve the issue and cure the damage caused thereby helping in restoration.

In the traditional justice perspective, an offence is considered to be a violation of the justice system and would magnify the establishment of guilt and stigmatizing and eventually imposing punishment, whereas if we look at Restorative Justice, it provides an opportunity for the victim to vocalise, in addition to this provides the offender to comprehend what crime the individual has committed, regret for the damage caused and work towards reparation.

Principles of Restorative Justice[3]

• Offence against individual relations is Crime
• Victims and Community are the core elements of the justice process.
• The primary priority in the attainment of justice is to assist the victim
• The secondary priority would be reinstating the community to the degree possible.
• The offender has a personal liability towards the crime victim and the community at large, for the crimes committed.
• Restorative Justice will lead to the development of the offender to comprehend the gravity of the offence committed by him.

Restoration focuses on the victim; the victim possesses no right in the criminal justice system. A victim is only considered as a witness to the prosecution. The recent change in the responsibility of the system towards for the right of the accused and victim so as to bring both of them at par is necessary. The National Offender Management Service (NOMS) Restorative Justice Capacity Building programme is an important development in the Criminal Justice System in the recent years, which caters to fostering relations and restoring victim and offenders to improve and amend conflicts arising through the crime committed.[4]

The Centre for Justice and Reconciliation conducted various successful reform projects: Rwanda Project started in 2001-2003, where prisons who were accused of genocide were made to meet their victims, survivors and community members, in the community justice inspired court called Gacaca. Nine months later the participation in these courts increase and more perpetrators wanted to confess and at present the Prison Fellowship Rwanda looks after seven “reconciliation villages” where these survivors and their perpetrators live together in harmony.[5]

In India, in cases of convictions can be sent for appeal and revisions, reaching to a conclusion in the judgement takes a considerable amount of time. The victim is already being subjected to emotional trauma and mental agony. The institution of the judicial system solely believes that disclosure, vindication, and enforcement of truth is the core underlying purpose of achieving justice.[6]

Justice Krishna Iyer, in Ratan Singh v. State of Punjab, contended-

“It is a weakness of our jurisprudence that the victims of crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature. We can only draw attention to this matter.”[7]

In the case of Babu Singh v. State of Uttar Pradesh[8], the Supreme Court proposed that methods of restorative justice such as community service, meditative drill or study classes should be initiated to help in restoring the offender.

The routine in criminal proceeding revives back the trauma in the minds of the victim of serious crime throughout the justice process and defeats any scope of providing closure or repairment of emotional damages caused to the aggrieved party. Different countries are enabling financial and legal help in the sphere of restorative justice.

In 2002, the UN Commission on Crime Prevention and Criminal Justice suggested to include Restorative Justice in the Criminal Justice System, in order to keep the offender and victim at par. The offender confesses and apologizes to the victim and the guilt of the offender guides him into non-repetition of the offence. The offender is also obligated to mend the damage caused to the victim. [9]

Restorative Justice and Indian Laws

• Panchayats

After independence, the provisions of the constitution helped in the establishment of Nyaya Panchayats, which was considered as a dispute resolution mechanism on a community level.[10]

Ever since there has been a constant push for the creation of community-focused justice models which have the power to try civil and criminal offences which are less grave in nature, thereby minimizing the formal legal process of involving courts. Panchayati Adalats, Gram Nyayalayas, Khap Panchayat also known as ‘kangaroo courts’, Mahila Panchayats and Nari Adalat are some examples.[11]

• Customary Laws

Customary Laws plays a very important role in dispute resolution in India and believes in the principle of justice being community-centric.

Article 13(3) of the Indian Constitution believes in acknowledging customs as a source of law. For example, the tribes of the Garo Hills consider the whole community accountable for an offence, rather than stigmatizing and blaming a particular individual. [12]

• Civil Cases

The timely approach regarding justice in civil and compoundable criminal cases by the establishment of “People’s Courts” or Lok Adalat. Formulation of Family Courts under Family Courts Act, 1984, to resolve matters such as divorce, the validity of marriage and restitution of conjugal rights by fostering dialogue between parties to settle matters in the absence of legal professionals.[13]

The Arbitration and Conciliation Act of 1996 is another example for courts setting mediations centres to lessen the delay of cases in courts and relying more on speedy resolutions by reaching to their own solution.[14]

• Criminal Cases

Section 320 of Criminal Procedure Code, 1973

Settlement of a dispute between the victim and the offender can be reached with Section 320 of the Criminal Procedure Code, 1973. ‘Compounding of offences’ has been one of the recognised mechanisms to attain restorative justice. A process where both, the offender and victim come to a consensus of not opting for litigation this is known as compounding.

This provision enables to take recourse to ‘compounding of cases’ in a few offences and does not require the consent of the court and in certain cases the approval of the court. There are certain offences where a particular person is affected and not the entire society. These offences can be compounded without the consent of the court under 320 (1) of Criminal Procedure Code, 1973. These offences would encompass a person’s feelings, criminal trespass, hurt, confinement, adultery, defamation etc.

Subsection (2) under this section would comprise of offence which is more severe in nature and affect a larger mass of people, these offences cannot be held compounded without the court’s approval. Grievous hurt, breach of trust which involve a huge amount, fraud, counterfeiting, wrongful confinement etc.[15]

Plea Bargaining (Sections 265A-L of the CrPC)

Chapter XXI A of the Criminal Procedure Code 1973, encompasses the procedure of plea bargaining, section 265 A-L deal with the concept. In cases where the offence is punishable with death or imprisonment of more than 7 years, further exceptions will be socio-economical offence[16]. The procedure of application of the same is stated in Section 265-B and other relevant provisions extend to 265 L.[17]

International Approach on Restorative Justice

Restorative Justice has been established in varies countries such as New Zealand, Canada, France, South Africa, Australia. It can use practised through various methods such as Victim-Offender Mediation, Family/Community Group Conferencing and Peace-making Sentencing Circles. Hence these methods have been successful in providing an opportunity for both the crime victim and the offender to meet.

North America and Europe, have about 300 and 500 victim-offender mediation programme which have proven to have successful results. These programmes have granted satisfaction and lessened the fear that surrounding the victim and lower rates of commission of newer offences.

The Centre for Restorative Justice & Peace-making at the University of Minnesota School of Social Work on the University’s St. Paul campus was formulated to foster restorative justice through negotiation and dialogue between the victim, offender and the community. The centre presumes that the active participation of the victim, offender and community will help in resolving future issues and would build a safe environment for the community. [18]

Restorative justice initiatives implemented by Canada would (i) The principles of Restorative Justice can be established during the sentencing of the crime know as Sentencing Circles (ii) Restorative Justice Options to Parole Suspension program currently this program enables to apply Restorative Justice when the offender is on conditional release during the course of a sentence (iii) Circles of Support and Accountability (COSA) pilot project to render assistance to high-risk sexual offenders in community restoration. [19]

Conclusion

Restorative Justice is a way of analysing the rectification. To be applicable for the reintegration of offenders and supporting the victim. Both the parties are brought together, thus designing a field of victim-offender mediation, ADR’s, Family Group Conferencing (FGC) and Victim-Offender Conferencing (VOC).[20]

In a study, the primary findings suggested that the most effective method in case of severe violence would be victim-offender mediation. Both the offender and the crime victim have graded restorative processes to be fair and satisfactory rather than the traditional criminal justice system; various studies have pointed out the same where satisfaction in relation to restorative processes has been as high as 95 per cent. The recent evaluation in relation to restorative justice programmes depicted that these programmes have enabled a significant reduction in recidivism. Restorative justice can help in lessening the cost of achieving justice and increase efficiency.[21]

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[1] International Journal of Law, Volume 3, Issue 3, Lipika Sharma, “Restorative justice system: A comparative analysis” (May 2017)

[2] Ibid

[3] International Research Journal of Management Sociology & Humanity, Volume 5 Issue 1, S.R. Sandhya, “An analytical study on Restorative Justice”

[4] “Wait ’til eight, An essential start-up guide to NOMS RJ scheme implementation” (January 2013)

[5] Centre for Justice and Reconciliation, “System Reform Projects” Link

[6] International Journal of Law and Legal Jurisprudence Studies, (Volume 1 Issue 6), Himanshu Kamal Tripathi & Vishalakshi Singh, “Jurisprudential analysis of victimization: Need of Restorative theory and State Compensation in Indian Criminal justice system”

[7] Justice Krishna Iyer; Ratan Singh vs State of Punjab AIR 1980 SC 84

[8] Babu Singh v. State of Uttar Pradesh, 1978 SCR (2) 777.

[9] Ibid.

[10] The Constitution espoused non-enforceable provisions relating to self-governance: Directive Principles of State Policy in Part IV of the Indian Constitution under Articles 39A and 40.

[11] CSJ Centre for Criminology and Victimology, National Law University Delhi, “Perspectives of Justice: Restorative Justice and Child Sexual Abuse in India”

[12] Ibid

[13] Family Courts Act Section 9 (1984).

[14] CSJ Centre for Criminology and Victimology, National Law University Delhi, “Perspectives of Justice: Restorative Justice and Child Sexual Abuse in India”

[15] SAGE Publications, Journal of Victimology and Victim Justice, Mehak Bajpai, “Advancing of Restorative Justice in Criminal Law in India and Germany: A Comparative Study” (2018)

[16] The socioeconomic offences that are excluded include offences under the dowry prohibition Act, Commission of Sati Prevention Act, The Indecent Representation of Women (Prohibition) Act, 1986, The Immoral Traffic (Prevention) Act, 1956, Protection of Women from Domestic Violence Act, 2005, The Army Act, 1950, The SC and ST (Prevention of Atrocities), 1989 and many more.

[17] SAGE Publications, Journal of Victimology and Victim Justice, Mehak Bajpai, “Advancing of Restorative Justice in Criminal Law in India and Germany: A Comparative Study” (2018)

[18] International Journal of Law and Legal Jurisprudence Studies, (Volume 1 Issue 6), Himanshu Kamal Tripathi & Vishalakshi Singh, “Jurisprudential analysis of victimization: Need of Restorative theory and State Compensation in Indian Criminal justice system”

[19] Behavioral Sciences and the Law, Robin J. Wilson, Bria Huculak and Andrew McWhinnie, “Restorative Justice Innovations in Canada” (2002)

[20] BAILEY, R., & EKIYOR, T. (Eds.). (2005). Promoting restorative justice in South Africa’s correctional services: Prisons Transformation Project (pp. 10-13, Rep.). Centre for Conflict Resolution. Retrieved May 15, 2020, from www.jstor.org/stable/resrep05161.8

[21] United Nations Office On Drugs and Crime, “Handbook on Restorative Justice Programmes” Link

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1. Models of Criminal Justice System: Crime Control and Due Process
2. Crime And Elements Of Crime