THE CONCEPT OF RESTORATIVE JUSTICE

Profile of Author: Prerna Chhabra is a 4th year BA.LLB (H) student from CPJ (CHS & SOL) (affiliated her GGSIPU). Her areas of interest are family law, constitutional law, criminal law and socio-legal issues.

Introduction

The concept of restorative justice is that concept of justice where organizing a meeting between the offender and the victim takes place for a greater benefit. Justice is sort here by discussing why did they do this act, what was their mindset, what led them to these acts and what harm has their actions caused to the victim. Amongst all these points being discussed the most important point how is the offender willing to repay/repair the damages caused to the victim.

The offender can repay the victim in cash or kind. Being affectionate towards the victim with a feeling of contrite or simply feeling remorseful. It urges the offender to take responsibility of their acts and actions. This also instils in the them the feeling of doing good for the community at large by reforming them as a person.

As it is known that offences come attached with punishment. But according to Albert Eglash, the person who used the term “restorative justice” for the first time in 1977, said that justice have different approaches as under:

• "retributive justice, based on punishment”
• "distributive justice, involving therapeutic treatment of offenders”
• "restorative justice, based on restitution with input from victims and offenders.”

Definition of Restorative justice

According to John Braithwaite – it is a process “where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.

Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime. The process of restorative justice thus shifts the responsibility for addressing crime.”.

Carolyn Boyes – Watson defines it as – “a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peace making tribunals such as the South Africa Truth and Reconciliation Commission to innovations within the criminal and juvenile justice systems, schools, social services and communities. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to re-establish mutual responsibility for constructive responses to wrongdoing within our communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all.”

Its Application

It is often felt by various functionaries[1] of the court that in matters or suits, a victim doesn’t get peace and feels that the justice done is insufficient. It deepens their wounds and doesn’t service the purpose of the term. This type of justice focuses on reforming the person rather than putting him behind the bars. A way is opted to reach a consensus between victim and offender.

In Criminal cases, the judges and magistrates arrange bail of the person by setting conditions of his release, dismiss charges and impose sentences. Then the correctional officers award privileges and revoke parole for such offenders.

This type of practice is prevalent in Minnesota, United States. It has been exercising restorative justice since 1990’s under Department of restorative justice initiative.

Application of Restorative Justice in India

The enforcement of the Indian Constitution paved way for “Nyaya Panchayats”, which focuses on dispute resolution mechanism at the basic level. The concept of ‘khap panchayats’, Mahila Panchayats and Nari Adalat have been prevalent in India and practice restorative justice.

Under Civil Courts, a special set of courts were established for resolution of disputes relating to family matters like divorce, guardianship, custody, other matrimonial matters. Apart from that the concept of Alternative dispute resolution in India is practiced by various ways, but Arbitration and Conciliation Act, 1996[2] set the basis of restorative justice in India.

Section 320 of Code of Criminal Procedure, 1973 says that in cases of compoundable offences “There are certain offences where a particular person is affected and not the entire society. these offences would encompass a person’s feelings”

The Concept of Plea Bargaining under section 265 A- L, enshrined in chapter XXI – A of Code of criminal procedure, also encompasses the provisions of restorative justice in India.

Juvenile Justice Act, 2015 and Restorative Justice

It is a well-established fact that in India, child offenders are sent to rehabilitation centres. They aren’t awarded punishment, rather are sent to get reformed under reformative practice of justice.

“As per section 18 of JJ Act, 2015, the JJB can pass orders for CCL such as:

• direct the child to participate in group counselling and similar activities;
• order the child to perform community service under the supervision of an organization or institution, or a specified person, persons or group of persons identified by the Board.”

Conclusion

This concept is not new, and has existed in the society since ages, people have chosen and have opted for other ways of achieving justice. But with changing times, crimes is growing at a rapid pace too, and sometimes for certain compoundable or non-serious offences, people cannot be put behind bars. They can be reformed so that they can learn from their mistakes and can deter themselves from doing these offences in the future.

This concept also comes in handy for children, who do not know the consequences of their actions. They have their whole lives ahead, putting them behind bars, might not be the wisest decision. But restoring them with a peaceful mindset at their tender age can not only change them as an individual but can also mould their life for something positive.

Frequently Asked Questions (FAQs)

1. What is restorative justice?

The concept of restorative justice is that concept of justice where organizing a meeting between the offender and the victim takes place for a greater benefit. Justice is sort here by discussing why did they do this act, what was their mindset, what led them to these acts and what harm has their actions caused to the victim. Amongst all these points being discussed the most important point how is the offender willing to repay/repair the damages caused to the victim. The offender can repay the victim in cash or kind. Being affectionate towards the victim with a feeling of contrite or simply feeling remorseful. It urges the offender to take responsibility of their acts and actions.

1. Where did this concept become accepted and its applicability in India?

This type of practice is prevalent in Minnesota, United States. It has been exercising restorative justice since 1990’s under Department of restorative justice initiative. In India the practices can be traced in “Nyaya Panchayats”, which focuses on dispute resolution mechanism at the basic level. The concept of ‘khap panchayats’, Mahila Panchayats and Nari Adalat have been prevalent in India and practice restorative justice.

Under Civil Courts, a special set of courts were established for resolution of disputes relating to family matters like divorce, guardianship, custody, other matrimonial matters. Apart from that the concept of Alternative dispute resolution in India is practiced by various ways, but Arbitration and Conciliation Act, 1996 set the basis of restorative justice in India.

[1] Referred as “judges, lawyers, prosecution and parole officers”

[2] Act No. 26 of 1996.

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