Download - AN ANALYTICAL STUDY ON RESTORATIVE JUSTICE

IRJMSH Volume 5 Issue 1 online ISSN 2277 – 9809

International Research Journal of Management Sociology & Humanity Page 127 http:www.irjmsh.com

AN ANALYTICAL STUDY ON RESTORATIVE JUSTICE

S.R. SANDHYA , M.A. M.L., ASST. PROF IN SAVEETHA SCHOOL OF LAW

SAVEETHA UNIVERSITY, CHENNAI

E-mail: [email protected]

Abstract:

The traditional system of administration of criminal justice by punishing the offender and thereby

restoring peace in the community has undergone a major change in the contemporary world. Many

countries at present adopted the principles called restoration and restitution in their criminal justice

system. It is not only the prosecution and the accused has a major play towards the dispensation of

justice in criminal cases, the victim is the most important party, he/she is to be remedied. The disposal

of criminal cases in courts with the prevailing procedures of our times is losing relevance in the present

day society, since because the crime rate is increasing at exorbitant level inspite of the new techniques

evolved and applied by the criminal justice agencies in handling the crimes and criminals. The best

alternative would be the application of Restorative justice principles in criminal proceedings so as to

make it more effective and functional. The victims’ interest would be properly addressed under this

concept of restoration. It is not possible to restore the victims back to their original position but

providing monetary compensation and also including them as a party in criminal cases to express their

grievances before a court of law will have positive response in providing relief to them. Restoration and

restitution in Indian Criminal Court process can be traced in the form of giving monetary compensation

mailto:[email protected]



to the injured victims but whereas the participation of victim in criminal cases was considerably

reduced. The programs under the restorative justice system like victim-offender mediation, family group

conferencing, sentencing circles, and restorative conferencing will comprehensively address the

inadequacies present in the present criminal justice system. The study was made to find out the

implications of Restorative justice principles to our Indian court process and thereby bringing necessary

changes in the Indian criminal procedure code.

AN ANALYTICAL STUDY ON RESTORATIVE JUSTICE

1. INTRODUCTION

“For too long, the law has centered its attention more on the rights of criminal than on the victims of

the crime. It is high time we reverse the trend and put the highest priority on the victims and

potential victim”.

-Gerald R. Ford1

The present modern age has contributed many means for the progress of the civilised human

community, starting with cultural and social development to the advancement in science and

technology. The civilization thus brought changes within the society for its betterment and improvement

but it also paved way for the commission of new crimes. It is the inherent nature of men to find

differences and conflict among them for larger and smaller issues. The conflicts between us takes the

shape of crime in the society whereby resulting in the emergence of effective criminal justice system.

The vital individuals constituting the element of crime are the offender and the victim. It is astonishing

to state that, our justice system has paid enormous attention towards the offender in rehabilitating and

1 Refer “Message of American president Gerald, R. Ford in the American Congress in 1975”



protecting him whereas the other important element of crime the victims were least considered and

concerned. Our knowledge about victim is in a state of continuing development. Under most of the legal

systems of the world, a victim is merely a complainant who activated the machinery of the criminal

justice system by bringing evidence and information about illegal acts to the attention of the authorities.

A crime victim is only a witness for the prosecution. Since crime is conceptualized as an event that

threatened and offended the entire community, and was prosecuted by the state on behalf of the

people, the actual victim was treated like just another piece of evidence, a mere exhibit to be discarded

after the trial. Whereas, the accused has got several rights, the victim has no right to protect his or her

interest during criminal proceedings. Hence, the Concept of Restorative Justice is the best alternative to

the traditional criminal justice system, where the victims and his family members were adequately

represented and redressed.

Restorative Justice views crime as an act committed against the victim and mainly focuses on

repairing the harm caused to the victim and community. It also focuses on the assistance provided to

the offender and identifies the ways to prevent future re-offending. It is of similar to that of the

alternative dispute resolution mechanism used in civil cases, arbitration, mediation and conciliation is

the common modes of dispute resolution for the settlement of the cases outside the courts. The

application of these mechanisms in criminal cases in the form of compounding is not adequately

established in the Indian criminal justice system. These methods have some relevance in other countries

in the form of Restorative Justice in settling the criminal cases by victim- offender mediation. In India the

state is the complainant in criminal cases, the prosecutor is the prominent person who initiates the trial

by describing the charge against the accused person and pleads for his conviction, the crime victims are

not adequately represented by the state machineries, their redressal is considered very least compared

to the rights of the accused person. Restorative Justice principles has some relevance in India under



sec.320 and sec.357-A2, as such the concept of Restorative Justice is not recognized by the Indian

criminal courts in its justice administration process.

The victims have been marginalized by the accusatorial system of criminal justice. Though we

have compensatory provisions in our criminal procedure code for restitution and rehabilitating victims

but they are ineffective in its application due the discretionary power of the courts. Victims have almost

lost their faith in the criminal justice system due to the neglect and insensitive of law enforcing

machineries on them. The innocent victims were left without any redress though whatever may be the

final verdict of a court in a criminal case. Even punishing an offender or putting him behind the bar

serves no purpose for an injured victim. Hence the concept of Restorative Justice is emerging as a

cardinal assistance to the victims of crime. The present study focuses on the implications of Restorative

Justice in criminal justice system along with its application, achievements, limits etc. The justice system

concentrating on restoring and repairing crime victims is an eventual reform to the traditional offender

oriented criminal justice system.

2. NEED FOR VICTIM-ORIENTED APPROACH Despite the absence of any special legislation to render justice to victims in India, the Supreme

Court has taken a proactive role and resorted to affirmative action to protect the rights of victims of

crime and abuse of power. The court has adopted the concept of Restorative Justice and awarded

compensation or restitution by enhancing the amount of compensation to victims, beginning form the

1980s. [Sukhdev singh vs. State of Punjab (1982 SCC Cr 467), Balraj vs. State of U.P. ( 1994 SCC Cr 823),

Giani Ram vs. State of Haryana( AIR 1995 SC 2452), Baldev Singh vs. State of Punjab (AIR 1996 SC 372)]3.

Victims of Sexual Assault

2 Code of Criminal Procedure, 1973

3 www.unafei.or.jp/english/pdf (accessed on 14.7.12)



There is yet no provision in the law mandating in-camera trials particularly when the victim is a

child. There is also no statutory scheme recognising the rehabilitative needs of the victims of rape. The

legislative and executive apathy to the problem stands in contrast with the response of the S.C. in Delhi

Domestic Working Women’s Forum v. U.O.I4. The case arose out of an incident in which six women,

working as domestic servants in Delhi, were raped by eight army personnel in a moving train between

Ranchi and Delhi. The members of the petitioner forum, when prevented by the employers from

meeting the victims, sought the court’s directions for expeditious and impartial investigation of the

offences. The court enunciated the vital principles which are need to be followed in assisting the victims

of rape. They are 1) the complainant in sexual assault case had to be provided with legal representation

2) legal assistance would have to be provided at the police station since the victim of sexual assault

might be very well be in a distressed state upon arrival at the police station 3) the police was under a

duty to inform the victim of her right to representation before any questions were asked of her and the

police report should state that the victim was so informed 4) a list of advocates willing to act in these

cases should be kept at the police station for victims who did not have a particular lawyer in mind or

whose own lawyer was unavailable.

Victims of Custodial Crime

The constitutional right of a victim of custodial crime to receive compensation was reiterated by

the S.C. in Nilabeti Behera V. State of Orissa5. The court pointed out that it was not enough to relegate

the heirs of a victim of custodial violence to the ordinary remedy of a civil suit. The right to get relief of

compensation in public law from courts exercising their writ jurisdiction was explicitly recognised. This

was further developed in D.K .Basu V. State of West Bengal6.

4 AIR (1995) 1 SCC 14.

5 AIR (1994) SCC (Cr) 823

6 AIR (1997) SC 610



However, in the last few decades, there is greater awareness on the part of the higher judiciary

of the need for a better treatment of crime victims by the criminal justice agencies at different stages in

India and this is reflected in the recommendations of the different committees and some of the

landmark judgments of the apex court in India.

Justice for Rape Victims-Guidelines for victim Assistance

In Bodhisattwa Gautam v. Subhra Chakraborty7, the S.C. held that if the court trying an offence

of rape has jurisdiction to award compensation at the final stage, the court also has the right to award

interim compensation. The court, having satisfied the prima facie culpability of the accused, ordered him

to pay a sum of Rs.1000/- every month to the victim as interim compensation along with arrears of

compensation from the date of the complaint. It is a landmark case in which the S.C. issued a set of

guidelines to help indigenous rape victims who cannot afford legal, medical and psychological services,

in accordance with the principles of U.N. Declaration.

State Compensation for Victims of Abuse of Power

As early as 1983, the S.C. recognised the need for state compensation in cases of abuse of

power by the state machinery. In the landmark case of Rudul Shah V. State of Bihar8, the S.C. ordered

the Government of Bihar to pay to Rudul Shah a further sum of Rs.30, 000/- as compensation, which

according to the court was of a “palliative nature”, in addition to a sum of Rs.5000/- in a case of illegal

incarceration of the victim for long years. Similarly in Saheli, a Women’s Resources Centre through Mrs.

Nalini Bhanot v. Commissioner of Police, Delhi Police9, the court awarded a sum of Rs.75,000/- as state

compensation to the victim’s mother, holding that the victim died due to beating by the police. In

another landmark case of D.K. Basu v. State of West Bengal, the S.C. held that state compensation is

7 AIR (1996) SC 922

8 AIR (1983) SC 1086 9 AIR (1990) SC 513



mandatory in case of abuse of power and said that “to repair the wrong done and give judicial redress

for legal injury is a compulsion of judicial conscience”.

Though the Indian courts have awarded compensation to the crime victims under the Law of

Torts and Criminal procedure code but no legal provision has been enacted for their restitution and

reparation. There is considerable number of victims who consents to adopt mediation procedure in

dealing with their criminal cases. C. Chinhin and R. Griffith, in their work stated that “It does not seem

that the system ignores the victim because he is perceived as a threat. Indeed, the victims were not

expressing a desire to take over the criminal justice system. They are happy that decisions to charge, to

prosecute and to sentence should be left with those who are doing it. There were some areas where

victims wished for consultation before decisions were taken by using mediation dispute regulation

procedure on whether charges should be pressed or dropped at court and on whether information

about victims should be given to the press”10. It is for our legislators and courts to formulate proper laws

and policies in implementing the amicable procedure in criminal court process in order to provide

proper remedy in restoring back the victims of crime to their original position to the possible extent.

The notification of the Government of India constituting the Committee on Reforms of Criminal

Justice system, chaired by Justice V.S.Malimath was uncharacteristically candid in its lamentation that

“People by and large have lost confidence in the Criminal Justice System… Victims feel ignored and are

crying for attention of Justice”11. In its turn the Malimath committee, after making extensive

recommendations to ensure that “the system must focus on justice to victims” has concluded that

“criminal justice administration will assume a new direction towards better and quicker justice once the

rights of victims are recognized by law and restitution for loss of life, limb and property are provided for

10

C. Chinhin and R. Griffith, “Resolving Conflict by Mediation”, New Law Journal (1980), p. 6-8 11 Committee on Reforms of Criminal Justice System- Report, GOI, Ministry of Home Affairs, Vol. I, March 2003



in the system”. While largely accepting the recommendations of the law commission of India in relation

to witness protection the Malimath committee concludes that time has come for a comprehensive law

need to be enacted for protecting the witness and the members of his family.

The existing legal framework in relation to rights of victims of crime reveals that except in the

area of awarding compensation, very little has been done either statutorily or through schemes to

address the entire range of problems faced by the crime victims. There is a need to take a fresh look at

the position and the level in which the victim of a crime is placed in our criminal justice system.

Restorative Justice helps in identifying the points of redressal that can be addressed to the crime victims

without entering into the stringent procedural aspects of traditional court system. It helps in avoiding

the vengeance attitude that arises in the common criminal trial convictions and also helps in preventing

future re-offending. Not only the parties to the criminal cases are involved but also their families and

friends are also involved in making the decision by mediating. The development of this concept in other

countries is worth mentioning when compared to that of India. Even in India the concept of Restorative

Justice was in practice during the ancient times in the form of Panchayats, but legal recognition to it is

lost due to the implication of laws in the form of statutes. Hence, this study is made to find out and

understand the concept of Restorative Justice, its development and application in other countries, and

to adapt this concept in India, with required modifications suitable to its culture and tradition.

3. AIM AND OBJECTIVE OF THE STUDY The aim of the study is to make a detailed analysis on the operation of the concept of

Restorative Justice in the criminal justice system along with its basic principles and values. The origin

and development of Restorative Justice in other countries is studied and its relevance in Indian Criminal

Court process is evaluated. The study also helps in understanding the victims from the perspective of

restoration and evaluates the modes of resolving criminal cases in the Restorative Justice process. It also

studies the pros and cons of the Restorative Justice process in its application and aftermath of its results.



The objectives of the study are:

1. To study the application of Restorative Justice in the criminal justice system.

2. To understand the participation of victim in the criminal justice process in securing justice.

3. To analyse the non punitive and restorative approach adopted by the criminal courts in

providing restitution to the crime victims.

4. To identify the limitations to restoration process and to suggest the ways to improve it.

4. SCOPE AND LIMITATION OF THE STUDY The researcher made an analytical study on the restoration of crime victims in India,

1. To study the participation and involvement of victims in criminal justice system.

2. To examine the rights and protections available to crime victims under Restorative Justice.

3. To find out the limitations and existing legal framework on the Restorative Justice.

The study focuses only on the parties to a criminal case those subjected themselves in the Restorative

Justice process.

5. HYPOTHESIS Restorative Justice remains to be the ideal concept in the criminal justice system and can play a

best role in preventing recurrence of crimes.

6. METHODOLOGY OF THE STUDY

The research undertaken is doctrinal one focussed on the Restorative Justice in the Indian

Scenario in the light of the legislative and procedural scheme as is available and making a vivid

comparison with the justice system operating in other countries. Following both acquistorial and

inquisitorial. The study mainly depends on the collection of primary and secondary sources from books,

journals, websites, case laws and such other sources.

7. RESTORATIVE JUSTICE: MEANING AND RELEVANCE



Many authors have attempted to define the term Restorative Justice but till now no

comprehensive definition has been accepted as such by the legal community. The following definitions

are the prominent ones:

“Restorative Justice is an approach to justice that aims to involve the parties to a dispute and

others affected by the harm (victims, offenders, families concerned and community members) in

collectively identifying harms, needs and obligations through accepting responsibilities, making

restitution, and taking measures to prevent a recurrence of the incident and promoting

reconciliation”12 .

However, the most widely accepted definition was formulated by an early advocate of Restorative

Justice, Tony Marshall (1999:5) in the following terms:

“Restorative Justice is a process whereby parties with a stake in a specific offence collectively

resolve how to deal with the aftermath of that offence and its implications for the future”13.

According to its proponents, Restorative Justice is not a new invention. Rather, it is a return to

traditional patterns of dealing with conflict and crime that had been present in different cultures

throughout human history (Braithwaite 2002a, chapter 1). It is argued that in the era pre-dating modern

states, crime was conceptualized in personal terms and was responded to in a fashion more in line with

Restorative Justice, with the emphasis placed on restitution and reconciliation. The state-administered

retributive response to crime that dominates today’s justice systems and governs our understanding of

crime and justice is a phenomenon just a few centuries old. The punitive system of crime control

evolved and achieved its full development in the second half of the eighteenth century, and, as other

12

http:// www.restorativejustice.org/ (Accessed on 10th

June 12) 13

Marian Liebmann, “Restorative Justice how it works”, (Jessica Kingsley Publications, 2007)

http://www.restorativejustice.org/



parts of the world were colonized by Europeans, the Western model of justice was imposed on

colonized peoples. Once western legal systems were established, the informal, community based forms

of conflict resolution survived to some degree-openly or secretly-in many countries, but in public

discourse they were generally considered as practices inferior to law. However, since the 1960s, there

has been a sea change. Attempts have been made to begin reversing the historical process and revive

ancient conflict resolution traditions. A variety of social and political movements have contributed to

this reversal, such as the informal justice movement, the restitution movement, the victim’s movement,

penal abolition, peacemaking criminology, the women’s movement, the growth of interest in native

justice traditions of indigenous people. These diverse influences directly or indirectly contributed to the

emergence of the Restorative Justice ideas and practices14.

8. KEY IDEAS AND VALUES OF RESTORATIVE JUSTICE Restorative Justice is different from the contemporary criminal justice in several ways. It views

criminal acts more comprehensively rather than defining crime as simply lawbreaking; it recognizes that

offenders harm victims, communities and even themselves. 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. It measures success differently rather than measuring how much punishment is

inflicted, it measures how much harm is repaired or prevented. The fundamentals in Restorative Justice

process include the following:

Restorative Justice principles are characterized by four key values: First, the encounter of both

parties. This step involves the offender, the victims, the community and any other party who was

involved in the initial crime. Second, the amending process takes place. In this step, the offenders will

take the steps necessary to help repair the harm caused. Third, reintegration begins. In this phase,

14

Margarita Zernova, “Restorative Justice”, (Ashgate publication, 2007) p. 1



restoration of both the victim and the offender takes place. In addition, this step also involves the

community and others who were involved in the initial crime. Finally, the inclusion stage provides the

open opportunity for both parties to participate in finding a resolution. The process of Restorative

Justice is lengthy and must be committed to by both parties for effective results15.

The basic principles of Restorative Justice are:16

1. Crime is an offense against human relationships.

2. Victims and the community are central to justice processes.

3. The first priority of justice processes is to assist victims.

4. The Second priority is to restore the community to the degree possible.

5. The offender has a personal responsibility to victims and to the community for crimes

committed.

6. The offender will develop improved competency and understanding as a result of the

Restorative Justice experience.

7. Stakeholders share responsibilities for Restorative Justice through partnerships for action.

9. COMMON FEATURES OF RESTORATIVE JUSTICE The basic element in the philosophy of Restorative Justice contains the following:

1. Crime causes harm to victims, offenders and communities; crime is fundamentally a violation of

people and interpersonal relationships.

2. Violations create obligations and liabilities. Offender’s obligations are to make things right as

much as possible.

3. Besides, the government, victims, offenders and communities should be actively involved in the

criminal justice process; and

15

http:// www.restorativejustice.org/ (Accessed on 10th

June 12) 16

James Dignan, “Understanding victims and Restorative Justice”, (Open University Press,2005)

http://www.restorativejustice.org/



4. In promoting justice, the government should be responsible for preserving order, and the The

cardinal principles in the idea of Restorative Justice are the following ones:17

A definition of crime as injury to victims and the community peace;

A focus on putting right the wrong;

A view that both the victim and the offender are active players in responding to and resolving

the criminal conflict;

Compensating victims for their losses through restitution by the offender;

Empowering victims in their search for closure through direct involvement in the justice process;

Assisting victims to regain a sense of control in the areas of their lives affected by the offence;

An objective of holding offenders accountable for their actions;

Impressing on offenders the real human impact of their behaviour;

Encouraging offenders to accept responsibility for their behaviour in a way that will aid them to

develop in a socially acceptable way;

Seeking to address the personal and relationship injuries experienced by the victim, offender

and the community as a consequence of the offending; and

A commitment to include all affected parties in the response to crime.

The Declaration on the Basic Principles of the Use of Restorative Justice programs in Criminal

Matters (2000)18 provides operational guidelines and procedure to effect the restorative process. It

provides the fundamental procedural safeguards to be applied in Restorative Justice programs and in

particular to restorative processes:

17

Ibid 18

Ibid



1. The parties should have the right to legal advice before and after the restorative process and,

where necessary, to translation and/or interpretation. Minors should, in addition, have the right

to parental assistance;

2. Before agreeing to participate in restorative processes, the parties should be fully informed of

their rights, the nature of the process and the possible consequences of their decision;

3. Neither the victim nor the offender should be induced by unfair means to participate in

restorative processes or outcomes.

The document highlights some other important provisions in the clauses-13 to 23 of the Declaration.

The salient ones are as under:

Judicial discharges based on agreements arising out of Restorative Justice programs should have

the same status as judicial decisions or judgments and should preclude prosecution in respect of

the same facts.

Where no agreement can be made between the parties, the case should be referred back to the

criminal justice authorities and a decision as to how to proceed should be taken without delay.

Lack of agreement may not be used as justification for a more severe sentence in subsequent

criminal justice proceedings.

Failure to implement an agreement made in the course of a restorative process should be

referred back to the restorative program or to the criminal justice authorities and a decision as

to how to proceed should be taken without delay. Failure to implement the agreement may not

be used as justification for a more severe sentence in subsequent criminal justice proceedings.

Facilitators should be recruited from all sections of society and should generally possess good

understanding of local cultures and communities. They should be able to demonstrate sound

judgment and interpersonal skills necessary to conducting restorative processes.



Facilitators should be responsible for providing a safe and appropriate environment for the

restorative process. They should be sensitive to any vulnerability of the parties.

Facilitators should receive initial training before taking up facilitation duties and should also

receive in-service training. The training should aim at providing skills in conflict resolution, taking

into account the particular needs of victims and offenders, at providing basic knowledge of the

criminal justice system and at providing a thorough knowledge of the operation of the

restorative program in which they will do their work.

There should be regular consultation between criminal justice authorities and administrators of

Restorative Justice programs to develop a common understanding of restorative process and

outcomes, to increase the extent to which restorative programs are used and to explore ways in

which restorative approaches might be incorporated into criminal justice practices.

Member states should promote research on and evaluation of Restorative Justice programs to

assess the extent to which they result in restorative outcomes, serve as an alternative to the

criminal justice process and provide positive outcomes for all parties.

Restorative Justice processes may need to undergo change in concrete form over time. Member

states should therefore encourage regular, rigorous evaluation and modification of such

programs in the light of the above definitions19.

10. METHODS OF RESTORATIVE JUSTICE

Meetings between victims, their offenders, and members of the affected community are

important ways to address the relational dimension of crime and justice. It is accepted that the following

three methods are hallmarks of Restorative Justice. Each requires that the offender admit responsibility

for the offence. Each is limited to parties who volunteer to participate.

Victim Offender Mediation

19

Ibid



(VOM also called Victim-offender dialogue, victim-offender conferencing, victim-offender

reconciliation, or Restorative Justice dialogue), is usually a meeting, in the presence of a trained

mediator, between victim and offender. This system generally involves few participants, and often is the

only option available to incarcerated offenders. The goals of victim offender mediation include:

permitting victims to meet their offenders on a voluntary basis, encouraging the offender to learn about

the crime’s impact and to take responsibility for the resulting harm, and providing victim and offender

the opportunity to develop a plan that addresses the harm.

Family or Community Group Conferencing

Family Group Conferencing has a wider circle of participants than VOM, adding people

connected to the primary parties, such as family, friends and professionals. FGC is often the most

appropriate system for juvenile cases, due to the important role of the family in a juvenile offenders’

life. This process brings together the victim, offender, and family, friends and key supporters of both in

deciding how to address the aftermath of the crime.

Peacemaking or Sentencing Circles

These circles use traditional circle ritual and structure to involve all interested parties.

Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a

healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up

circles to monitor progress. This is a process designed to develop consensus among community

members, victims, victim supporters, offenders, offender supporters, judges, prosecutors, defence

counsel, police and court workers on an appropriate sentencing plan that addresses the concerns of all

interested parties. The goals of circles include: promoting healing of all affected parties, giving the

offender the opportunity to make amend, giving victims, offenders, family members and communities a



voice and shared responsibility in finding constructive resolutions, addressing underlying causes of

criminal behaviour, and building a sense of community around shared community values.20

The other two process of Restorative Justice are:

Restorative Conferencing

(RC) also involves a wider circle of participants than VOM. Restorative conferences, which have

also been called Restorative Justice conferences, family group conferences and community

accountability conferences, originate as a response to juvenile crime. An RC is a voluntary, structured

meeting between offenders, victims and both parties’ family and friends, in which they address

consequences and restitution. Restorative Conferencing is explicitly victim sensitive. The conference

facilitator arranges the meeting, in some cases, a written statement or a surrogate replaces an unwilling

victim. The conference facilitator sticks to a simple script and keeps the conference focused, but

intentionally does not testify. The intent is to allow subsequent conferences to succeed without a

facilitator.

Community Restorative Boards

It also referred to as Community Justice Committees in Canada and Referral Order Panels in

England and Wales, is typically composed of a small group, and prepared by intensive training, who

conducts public, face-to-face meetings. Judges may sentence offenders to participate; police may refer

them before charging them; or they may engage outside the legal system. Victims meet with the board

and offender, or submit a written statement which is shared with the offender and the board. Board

members discuss the nature and impact of the offense with the offender. The discussion continues until

they agree on a deadline and specific actions for the offender to take. Subsequently, the offender

20

Ibid



documents progress in fulfilling the agreement. After the deadline passes, the board submits a

compliance report to the court or police, ending the board’s involvement21.

11. RESTORATIVE JUSTICE AND ADR Any discussion on Restorative Justice remains incomplete without reference to Alternative

Dispute Resolution. Restorative Justice is very different from either the adversarial legal process or that

of civil litigation, J. Braithwaite writes, “Court-annexed ADR (Alternative Dispute Resolution) and

Restorative Justice could not be philosophically further apart”, because the former seeks to address only

legally relevant issues and to protect both parties’ rights, whereas Restorative Justice seeks, “expanding

the issues beyond those that are legally relevant, especially into underlying relationships.”22 The ADR, as

technique, helps the Restorative Justice to achieve its objectives. The ADR refers to any ways and means

of resolving conflicts and disputes outside of the courtroom.

ADR includes arbitration, mediation, early neutral evaluation, and conciliation. As burgeoning

arrears in the courts, rising costs of litigation, and time delays continue to plague litigants, many

countries of the world have institutionalized ADR programs. These programs operate both voluntary and

mandatory basis.

All parties engage in creating agreements in order to avoid recidivism and to restore safety for

how the wrongdoing can be righted which allows the victim to have direct say in the judgment process.

This gives offenders the opportunity to understand the harm they have caused, while demonstrating to

the community that the offender might also have also suffered prior harm. Healing by reintegration of

21 http://www.forensic.to/webhome/ (Accessed on 10 June 12) 22

Ibid

http://www.forensic.to/webhome/%20(Accessed



offenders into the community, strives to restore harmony, health, and well-being by comprising

personal accountability, decision-making and the putting right of harm23.

12. RESTORATIVE JUSTICE IN INDIA: The development of Restorative Justice in India can be traced in the form of panchayats which

were in practice in ancient times. After the intervention of British, the panchayats lost its importance

due to the introduction of procedural laws in the form of statutes for its application in criminal courts.

The concept has no legal recognition in Indian sphere, as no statute prescribe specifically for the

application of Restorative Justice principles. It is the need of the hour to incorporate the concept

Restorative Justice in India, taking examples from other countries and modifying it in such a manner so

as to fix according to Indian conditions24.

The Indian heritage has much testimony to offer that its socio-cultural fabric contains intrinsic

mechanism to bring the conflicting people together and settle their dispute in a highly informal manner.

In fact, the caste panchayats and other social groups in the countryside have been an effective source to

dispense justice. The verdict delivered by these bodies was acceptable to everybody. The interests of

the victims were supreme. Many times the offenders were directed to compensate or restore the harm

done to the victims. The effect and impact of social expectations and social sanctions on the behaviour

of the people have always been decisive. This has been able to resolve the mutual conflicts of the

people25.

The current scene regarding the Restorative Justice in the country can be understood in the

following heads:

23

Marian Liebmann, “Restorative Justice How it Works”, (Jessica Kingsley Publications, 2007)) 24

http://www.forensic.to/webhome/ (Accessed on 10 June 12)

25

http://www.forensic.to/webhome/ (Accessed on 10 June 12)

http://www.forensic.to/webhome/%20(Accessed



Inadequate Legal Basis

The Restorative Justice in the Indian criminal jurisprudence is almost non-existent. This is mainly

due to the fact that the system of criminal justice in this country is hardly a victim-oriented one (Bajpai,

1997). The progress made in the spheres of victimology is yet to reach to the criminal justice practices in

this country. There is no separate law in this country enabling the victim to have their say in the criminal

justice process. The compensation, restitution and restoration are still not very common here. The main

reason is perhaps that the procedural law in the country does not provide much scope for these

practices. As regards compensation, some highly inadequate and restricting provisions are available in

the Sections. 357-58 of the Criminal Procedure Code, 1973. The procedure to get the prescribed

compensation is too cumbersome to practically help the victim. The amount of fine imposed on the

offender, the main source of compensation, has remained unrevised since 1860, the year when the

Indian Penal Code was enacted.

Compoundable Offences

The victim and offenders can reach to settlement of the matter in accordance with the Section.

320 of the Criminal Procedure Code, 1973. This procedural law allows the parties to undergo what is

called “compounding of cases” in certain offences without the permission of court and in some cases

with the approval of the court. The compounding of the offences has connotations to what is now

popularly being voiced as “Restorative Justice”. There are some offences which affect individuals and do

not affect the society. This type of offences can be compounded without the permission of the court

under the sub section (1) of Section. 320 of the Criminal Procedure Code, 1973. The offences under this

category are: hurting religious feeling of a person, hurt, confinement, mischief, criminal trespass,

adultery, defamation etc. The offences under sub section (2) of this law contains those offences which

are of grave nature and likely to affect people at large. These cannot be compounded without the

permission of the court. The offences under this class include: grievous hurt, wrongful confinement,



misappropriation of property, breach of trust involving heavy amount, fraud, counterfeiting, indecent

behaviour towards women etc. The offences reached to successful compounding always result in

acquittal.. It does not attach any condition of restoration/reparation of harm afflicted. In the name of

restoration, recently higher courts in India have given verdicts in favour of the victims26

13. CONCLUSION AND SUGGESTIONS

The traditional criminal justice system focuses on crime prevention, crime reduction, punishing

law breakers, and on offender rehabilitation with an attitude of deterrence and retribution. The crime

victims were only mere complainants or parties to a criminal case as a mere spectator not having any

role to play in decision making process. With the emergence of study on victimology the attention on

victims gained momentum from the criminologists, stressing for victims rights, protection, restitution

and empowerment. The resultant is the advent of numerous statutes on victim’s protection with certain

modes of redressal in current legal systems. Restorative Justice in the criminal justice arena is a

paradigm shift from the traditional justice system. It is victim centred justice/victim-oriented justice,

giving victims the opportunity to express their concerns over the crime and the offender.

The time factor in disposal of cases is another area of concern where the criminal courts are

obsessed with huge arrears and backlog of cases for adjudication. The cost incurred in criminal justice

process is also a deteriorating factor which needs a change for its reduction. The implication of

restorative principles will manage both the time factor and cost factor in a significant way by avoiding

the long court procedures and involving the mediators of their (parties) choice. Punishment and

rehabilitation of offenders failed to prevent the commission and reduction of crimes, it also failed in

preventing re-offending, researches indicates that Restorative Justice interventions helps in preventing

26

Ibid



commission of further offences. The offender is made accountable directly towards his victim and he

tries to make amends for the injury/loss caused by his criminal conduct. Restoration is alternative to

punishment and helps in re-integration of offenders in community, in avoiding the attitude of private

vengeance in them. It also helps in avoiding offender stigmatisation and ensures successful

reintegration. In civil disputes the implication of Alternative Dispute Resolution mechanism had attained

the higher level of disposing civil matters out of court. Likewise, the application of mediation principles

by way of Restorative Justice in criminal cases can be the best alternative to deal with the interests of

the victim, offender and the community.

From the doctrinal study it is derived that the Restorative Justice remains to be the ideal

concept in the criminal justice system and it helps in preventing the recurrence of crimes. Hence the

hypothesis is proved.

SUGGESTIONS

The legislative scheme in India provides for Restorative Justice principles in the form of

compounding of offences and awarding compensation under Sec.357-A of Criminal Procedure Code.

There is no specific legislation on victims in India, the concept of restoration and restitution need to be

incorporated in order to protect the interests of victims in criminal cases. The enactment of a statute

incorporating the restorative justice ideals suitable to Indian conditions is required to address the

grievances of victims. And it is also highly advisable to adopt the partie civile concept practiced in France

to India, whereby the victims can make their concern in court to their full satisfaction without waiting

for the final verdict of a case.

The Restorative Justice principles are sometimes characterized as informal justice, as it lacks

proper rules and regulation for its implementation. In order to evade criticisms from the opponents of



Restorative Justice and also for its effective execution the following suggestions in addition to its existing

principles can be included for its application.

In Restorative Justice Process all parties must be provided with complete information as to the

purpose of the purpose of the process, their rights within the process and the possible

outcomes of the process.

Voluntariness of the parties must be ensured and reasonable amount of time to be given to

consider their options in choosing the Restorative Justice process.

Confidentiality must be maintained in Restorative Justice process.

The victims and offenders should be allowed to legal advice at any stage of the proceedings.

Proper evaluation and monitoring of restorative programmes should be done at appropriate

intervals.

Measures to ensure safety of participants should be made.

The claim of Restorative Justice advocates that Restorative Justice as an alternative to the conventional

criminal justice system can be supported on optimistic accounts. But instead of using it as an alternative,

it can be utilised in addition to the existing criminal justice process. With regard to India, protection and

redress for victims of crime must become a primary concern. Incorporating into Indian law the

established principles of Restorative Justice could be a significant step towards this goal.

BIBLIOGRAPHY

BOOKS REFERRED

1. Marian Liebmann, “Restorative Justice How it Works”, Jessica Kingsley Publications

(2007)

2. James Dignan, “Understanding victims and Restorative Justice”, Open University Press

(2005)

http://www.ebooks.com/searchapp/searchresults.net?page=1&term=Liebmann%2C+Marian&restrictBy=author



3. John Braithwaite, “Restorative Justice and Responsive Regulation”, Oxford University

Press (2002)

4. Carolyn Hoyle, “Restorative Justice, Critical Concepts in Criminology”, Vol.1, “The Rise of

Restorative Justice”, Routledge Publishers (2010)

5. Margarita Zernova, “Restorative Justice”, Ashgate publication, (2007)

6. David W.Newubauer.Henry F.Fradella, “America’s courts and the Criminal justice

System”, 10th

edition, Wordsworth Cengage Learning

7. Larry J.Siegel, “Introduction to Criminal Justice”, 12th

edition, Wardsworth Cengage

Learning, (2009)

8. Hari Om Gautam,“Victims of Crime and the Law”, Regal publications, 2011 edition.

9. Clifford K. Dorne, “Restorative Justice in the United States”, Pearson Education,

Inc.,(2008)

10. Tim Newburn, “Criminology”, Willlian Publishing (2008)

11. Dennis Sullivan And Larry Tifft, “Handbook of Restorative Justice: A Global

Perspective”, Routledge publishers, (2006)

JOURNALS REFERRED 1. A.S. Anand, “Victims of Crime-The Unseen Side”, (1998) 1 SCC (JOUR) 13.

2. C. Chinhin and R. Griffith, “Resolving Conflict by Mediation”, New Law Journal (1980)

ACRONYMS

http://www.google.co.in/search?hl=en&rlz=1W1SKPT_enIN451&biw=1280&bih=570&tbm=bks&tbm=bks&q=inauthor:%22Dennis+Sullivan%22&sa=X&ei=7epEUJvDD8qzrAeqwIDIAw&ved=0CDQQ9Ag

http://www.google.co.in/search?hl=en&rlz=1W1SKPT_enIN451&biw=1280&bih=570&tbm=bks&tbm=bks&q=inauthor:%22Larry+Tifft%22&sa=X&ei=7epEUJvDD8qzrAeqwIDIAw&ved=0CDUQ9Ag

http://books.google.co.in/books?id=7R15bTGLPCsC&pg=PA284&lpg=PA284&dq=understanding+victims+and+restorative+justice&source=bl&ots=N2nuqagZxK&sig=wLAXjVkksJq9bFV7Zjdkq3YRMSs&hl=en&sa=X&ei=7epEUJvDD8qzrAeqwIDIAw&ved=0CDMQ6AEwAQ

http://books.google.co.in/books?id=7R15bTGLPCsC&pg=PA284&lpg=PA284&dq=understanding+victims+and+restorative+justice&source=bl&ots=N2nuqagZxK&sig=wLAXjVkksJq9bFV7Zjdkq3YRMSs&hl=en&sa=X&ei=7epEUJvDD8qzrAeqwIDIAw&ved=0CDMQ6AEwAQ



1. AIR – ALL INDIA REPORTER

2. ADR – ALTERNATIVE DISPUTE RESOLUTION

3. BARJ – BALANCED AND RESTORATIVE JUSTICE

4. CDSS – CAROLINA DISPUTE SETTLEMENT SERVICES

5. CICS – CRIMINAL INJURIES COMPENSATION SCHEME

6. Cr. P.C – CRIMINAL PROCEDURE CODE

7. CLJR – CENTRE FOR LEGAL AND JUDICIAL REFORM

8. FGC – FAMILY GROUP CONFERENCING

9. IMF – INTERNATIONAL MONETARY FUND

10. NAVSS – NATIONAL ASSOCIATION OF VICTIMS SUPPORT SCHEMES

11. NGO – NON-GOVERNMENTAL ORGANISATION

12. PMS – PROBATION AND MEDIATION SERVICE

13. RCMP ROYAL CANADIAN MOUNTED POLICE

14. RC – RESTORATIVE CONFERENCING

15. RJ – RESTORATIVE JUSTICE

16. SCC – SUPREME COURT CASES

TABLE OF CASES



1. Sukhdev singh vs. State of Punjab (1982 SCC Cr 467)

2. Balraj vs. State of U.P. ( 1994 SCC Cr 823)

3. Giani Ram vs. State of Haryana ( AIR 1995 SC 2452)

4. Baldev Singh vs. State of Punjab (AIR 1996 SC 372)

5. Delhi Domestic Working Women’s Forum v. U.O.I (AIR (1995) 1 SCC 14)

6. Nilabeti Behera V. State of Orissa (AIR (1994) SCC (Cr) 823)

7. D.K. Basu V. State of West Bengal (AIR (1997) SC 610)

8. Bodhisattwa Gautam v. Subhra Chakraborty (AIR (1996) SC 922)

9. Rudul shah V. State of Bihar (AIR (1983) SC 1086)

10. Mrs. Nalini Bhanot v. Commissioner of Police, Delhi police (AIR (1990) SC 513)