Restorative justice refers to "a process for resolving crime by focusing on redressing the harm done to the victims, holding offenders accountable for their actions and, often also, engaging the community in the resolution of that conflict."[1] It is aimed at addressing the consequences of crime by encouraging victims and offenders to communicate and deliberate on the damage caused by the crime. Restorative justice is an approach used to address criminal behaviour by finding a balance between the needs of the community, the victims, and the offenders.

The fundamental principles of restorative justice have been depicted through the definition given by Tony F. Marshall: "Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future"[2] Restorative justice aims to address the consequences of crime and encourages dialogue between the victims of crime and their offender(s). To give effect to the cause of restorative justice to restore victims, various new initiatives programs, etc. have been launched globally.

Victims at the Core: Navigating the Dynamics of Restorative Justice

The concept of restorative justice has three primary goals. Firstly, it seeks to grant decision-making power to those individuals who have been most impacted by the crime. The second objective is to address and rectify the harm caused as a result of the crime. Thirdly, the system aims to rehabilitate the offender.[3] One distinguishing aspect of this theory is that it extends beyond just the victim and includes all individuals who have been significantly affected by the crime. "A restorative process is any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator." [4]

The restorative justice process enables the victim, the offender, and the affected members of the community to directly participate in responding to the crime. The different aspects of restorative justice include community participation, interaction between victim and offender, and reparative sanctions. Very frequently, restorative justice is facilitated by direct and indirect negotiation between victims and offenders.

The involvement of the parties plays a vital role in the procedure, placing emphasis on fostering relationships, promoting reconciliation, and reaching agreements regarding the desired outcome between the individuals harmed and the individual responsible. The process is also supported by the involvement of professionals such as social workers, police, lawyers, judges, support groups, and the community. A victim is a central participant in the restorative justice system and the restoration of harm caused by the crime to the victim is the primary concern.

According to criminologists Retzinger and Scheff, there are two processes occurring simultaneously in the restorative justice approach, namely, material reparation and symbolic reparation. The process of material reparation culminates in a final settlement between the victim and the offender consisting of specific agreements pertaining to victim compensation, community service, and so on. On the other hand, symbolic reparation comprises gestures and expressions such as remorse, regret, courtesy, respect, pardon, etc.

It appears to be less visible or tangible. Retzinger and Scheff opine that the offender's apology and the victim's forgiveness is central to reconciliation, victim satisfaction, and deterrence to further crimes.[5] The three fundamental essentials of restorative justice are victim-offender encounters, repairing harm, and transformation of offenders.

Restorative justice aims to address the detrimental effects of crime on individuals and communities by taking a comprehensive approach to repairing harm.[6] Each party involved in a crime has distinct needs that must be met. When individuals become victims of a crime, they not only lose control over their lives but also suffer a loss of personal autonomy. The main focus for these victims is to find healing, as they are the ones most affected by the crime. Such instances of crime and wrongdoing can result in physical and emotional damage, as well as loss of property for the victims.[7] The healing of victims is a crucial aspect of this process, as they find solace through the encounter and its outcomes.

On the other hand, offenders are the ones primarily responsible for causing harm. Their main objective is to make amends, particularly to the victims, in order to strive to regain trust within the community and restore their standing within society. Moreover, restorative justice recognizes the importance of fostering healthy relationships and ensuring the safety of the community as a whole. By facilitating direct encounters between victims and offenders, it empowers offenders to make amends directly to those they have harmed, including potentially other members of the community.

Understanding How Restorative Justice Empowers Victims, Rehabilitates Offenders, and Harmonises Communities

Restorative justice provides victims with the opportunity to regain control over their lives, which have been disrupted as a result of the crime. It allows victims to have a say in the process of justice, its outcomes and potentially empowers them. While some victims may seek punishment as a means of making a strong statement against the wrongdoing, true vindication is most powerful when offenders acknowledge the harm caused, offer genuine apologies, and express a sincere desire to make amends.

When a crime occurs, the immediate concern for the victim is their safety. They need assurance that they are protected from any ongoing or future harm. Crime has a profound impact on victims, affecting their physical, mental, and emotional well-being. Fear, anxiety, and irrationality are natural consequences of crime, resulting in sleepless nights and loss of appetite. Victims may require emotional support, counselling, or therapy to process their trauma and begin healing from its effects.

Offenders must actively engage in actions to rectify their wrongs directly with the victims and, potentially, the community at large. The primary objective of restorative encounters is to empower offenders to make reparations. Restorative justice centers around creating safe spaces where offenders can take positive and constructive steps to heal, repair the harm caused, and reconcile relationships. By atoning for their misdeeds, offenders redeem themselves and establish a sound connection with the community, including the victims. Offenders can regain their standing in the community by committing to inner transformation and personal growth, openly acknowledging their wrongdoing, taking responsibility for their actions, and making amends to those they have harmed.

In victim-offender mediations, the primary participants are the victim and the offender and a facilitator conducts individual meetings with each party to prepare them for the dialogue. Once both parties are ready and willing to proceed, they come together in a secure and controlled environment for the mediation.[8] While family members and other community members may be present, their role is primarily that of observers or providing support. During the encounter, the offender takes responsibility for their actions, addresses the victim's questions, and listens to how the victim has been affected. The parties engage in discussions about the needs and harms resulting from the wrongdoing.

The mediation session may conclude with an agreement delineating the steps the offender will take to make amends, which may include restitution or community service. The facilitator continues to monitor the progress of both parties, particularly the offender, in fulfilling the terms of the agreement.

Restorative Justice in India: A Viable Option or a Far-Fetched Dream?

Justice Krishna Iyer in the case of Ratan Singh v State of Punjab opined that:
"It is the weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the 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." [9] India's criminal justice system fails to prioritize the rights of victims, lacking a specific legislation that grants them a voice in court proceedings.

The concepts of compensation, restitution, and restoration are not widely practiced in India. Not all cases can be addressed through the process of restorative justice, as it must coexist with the traditional criminal justice system.[10] Therefore, it is necessary to have proper legislation to determine the criteria for distinguishing cases.

In Babu Singh v. State of UP,[11] a suggestion to introduce measures of restorative justice such as community service, meditation exercises, etc. in order to assist in the rehabilitation of the offender was put forth by the Supreme Court. As a result of a change in viewpoint, victimology, rights of victims, and restorative justice are gradually gaining ground within the criminal justice system in India. Restorative justice is based on therapeutic, corrective, and preventive theories of punishment. Restorative justice offers numerous advantages such as speedy resolution, cost-effectiveness, preservation of positive relationships, and the potential for ongoing connections.

Restorative justice has been implemented within the criminal justice system through methods like plea bargaining, victim-offender mediation, and out-of-court settlements. The success of these approaches in other jurisdictions has influenced our legislature to adopt them within the Indian Criminal Justice System. As a result, plea bargaining[12] has emerged as a part of our criminal procedure as provided in Section 265A of the Code of Criminal Procedure Code 1973 (CrPC), incorporating different processes.[13]

Section 320 of the CrPC has been introduced with the aim of incorporating restorative justice principles into the legal system by allowing to reach a resolution between the victim and the offender. Compounding of offences[14] is a recognized method for pursuing restorative justice, which involves a process where both the offender and victim agree not to pursue litigation. Section 320 allows for the compounding of certain offenses without the need for court consent, and in some cases, even court approval.

These offenses typically affect specific individuals rather than society as a whole. Sections 357-58 of the Code of Criminal Procedure Code 1973 (CrPC) provide for compensation of victims. Section 357A of the CrPC mandates that each State Government formulate a plan to allocate funds specifically for compensating crime victims.[15] It plays a crucial role in the rehabilitation process for victims of violence, such as rape. However, the lengthy process of obtaining mandated compensation offers little support to the victims who have suffered. Section 360 of the CrPC grants the court the authority to grant probation to an offender upon displaying good conduct or receiving punishment and being instructed to uphold good conduct.[16]

The Apex Court in Re Exploitation of Children in Orphanages in State of Tamil v. Union of India observed that:
"the importance of rehabilitation and social re-integration clearly stands out if we appreciate the objective of the Juvenile Justice Act which is to foster restorative justice. There cannot be any meaningful rehabilitation, particularly of a child in conflict with law who is also a child in need of care and protection unless the basic elements and principles of restorative justice are recognized and practised."[17] The Juvenile Justice (Care and Protection) Act of 2015 incorporates the principles of restorative justice.

However, there is still a lack of clarity regarding the application of these concepts in juvenile justice cases. Section 18 of the Act[18] includes provisions that focus on restorative outcomes, although it does not specifically mention restorative justice in cases involving juvenile offenders.

The process of restorative justice can prove effective in cases of domestic violence wherein the offender is typically someone familiar, such as an immediate family member or relative. In situations where the offender is known to the victim, it becomes crucial to engage in dialogue to facilitate understanding and resolution of the conflict resulting from the offense. Restorative justice has been recognized for its ability to allow victims to actively participate in determining an appropriate response to acts of violence.

Furthermore, it enables the establishment of new community standards and norms based on the outcomes of restorative justice meetings. It is important to acknowledge that in cases of domestic violence, victims may choose to pursue both restorative justice and legal prosecution against the offender, depending upon the grievousness of the crime.

In the adversarial criminal justice system prevalent in India, the victim or their representative had little to no involvement beyond being a mere witness. The main purpose of excluding the victim from the trial process was to prevent the trial from becoming a vengeful confrontation and to treat them as private parties.

However, it is highly undesirable to exclude the victim from the trial proceedings and restorative processes. Nevertheless, there is a growing emphasis on 'restorative justice in current discussions, aiming to address this issue, albeit at a slow pace. Restorative justice is not only an idea being presented in India, but it is also gaining rapid support globally. The government must recognise this vision and acknowledge the crucial importance of meeting the needs of victims. This aligns with the principles of natural law jurisprudence, which promotes morality and equity.

Conclusion
As a nation firmly rooted in the principles of non-violence and peace, India should actively promote the implementation of restorative justice through possible avenues. Given the flaws and drawbacks of the current criminal justice system in India, as well as the benefits and long-term advantages of adopting a restorative justice approach, it is crucial for the legal system to incorporate this approach to the greatest extent possible. Adapting the legal system to keep pace with our rapidly changing society and the advancements brought about by technology and modernization is essential in ensuring that justice is served. It is high time for India to embrace restorative justice and prioritise the satisfaction of the needs of victims.

References:

1. Handbook on Restorative Justice Programmes (United Nations Office on Drug and Crime, 2006) - URL: https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf accessed 31 December 2023.
2. John Braithwaite, 'Restorative Justice: Assessing Optimistic and Pessimistic Accounts' 1999 25 Crime and Justice - URL: https://www.jstor.org/stable/1147608 accessed 31 December 2023.
3. Jo-Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative Justice: How Much Involvement Are Victims Looking For?' (2004) 11(2) - URL: https://journals.sagepub.com/doi/10.1177/026975800401100204 accessed 31 December 2023.
4. 'Handbook on Restorative Justice Programmes' (United Nations Office on Drug and Crime, 2006) - URL: https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf accessed 31 December 2023.
5. Braithwaite (n 3).
6. 'Three Core Elements of Restorative Justice' (Restorative Justice Exchange, 25 February 2022) - URL: https://restorativejustice.org/what-is-restorative-justice/three-core-elements-of-restorative-justice/ accessed 31 December 2023.
7. Jonathan Derby, 'Restorative Justice Principles and Practice' (Prison Fellowship International, March 2021) - URL: https://cdn.restorativejustice.org/wp-content/uploads/2022/06/17163033/RJE-Resource-HANDBOOK-on-Restorative-Justice-Principles-and-Practice.pdf accessed 31 December 2023.
8. ibid.
9. Rattan Singh v State of Punjab, (1979) 4 SCC 719.
10. Ajay George, 'Applicability of Restorative Justice in India: An Overview' (2022) 2(2) Indian Journal of Integrated Research in Law - URL: https://ijirl.com/wp-content/uploads/2022/05/APPLICABILITY-OF-RESTORATIVE-JUSTICE-IN-INDIA-AN-OVERVIEW.pdf accessed 31 December 2023.
11. Babu Singh v State of UP, 1978 AIR 527, 1978 SCR (2) 777.
12. Code of Criminal Procedure 1973, s 265A.
13. Surbhi Singh, 'Restorative Justice Under Criminal Law - A Study' (2021) SSRN - URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3842800 accessed 31 December 2023.
14. Code of Criminal Procedure 1973, s 320.
15. Code of Criminal Procedure 1973, s 357A.
16. Code of Criminal Procedure 1973, s 360.
17. Re Exploitation of Children in Orphanages in State of Tamil v Union of India, (2017) 1 SCC 653.
18. Juvenile Justice (Care and Protection) Act 2015, s 18.

Award Winning Article Is Written By: Ms.Debalina Roy

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