Rohit Kapoor
Justice Krishnaiyer, V.R. observed “Restorative devices to redeem the man, even through community service, meditating drill, study classes or other resources should be innovated. (1978 AIR Supreme Court of India at page 429).
Restorative justice has emerged as a new form of justice in the arena of criminal administration of justice. In this area constitutional courts have been inclined to examine the plea of victims for Redressal of the losses suffered during the violent incidents including rights and caste clashes. The plea that is evoked is that on culpable inaction in which the state and its agencies are expected to anticipate the losses of the damage to public and private property in certain situation over which the victims have no Control.
The Hon’ble Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union of India & Ors. in Writ Petition (Crl) No.362/93, while outlining the broad parameters for extending assistance to the victims of rape, indicated the necessity of setting up of a Criminal Injuries Compensation Board. The Government has formulated a scheme, ‘Financial Assistance and Support Services to Victims of Rape: A Scheme for Restorative Justice’ which envisages setting up of Criminal Injuries relief and Rehabilitation Boards at National, State and District level.
Restorative justice (also sometimes called reparative justice) is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, “to repair the harm they’ve done-by apologizing, returning stolen money, or community service”. Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state.
The General Assembly of the United Nations in its 96 th plenary meeting held on 29th November, 1985 set out the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which recognizes and grants to the victims, their families, witnesses and others who aid them the rights in the area of access to justice and fair treatment, Restitution and Compensation as basic human rights. The experience in India and many other countries of the world is that the formal system of criminal justice, due to various reasons, has not been fully successful in achieving its objectives. Mounting arrears in the court, delay in disposal of cases and consistently rising rate of acquittals resulted in the loss of public confidence in the system. Besides, it was felt that the victims of crime who ought to be in the center are often marginalized in the criminal justice process.
In July 2000, United Nations Economic and Social Council (ECOSOC) resolution entitled Basic principles on the use of restorative justice programmes in criminal matters requested the Secretary-General to seek comments from Member States and relevant intergovernmental and nongovernmental organizations, as well as institutes of the United Nations Crime Prevention and Criminal Justice Programme network, restorative justice programmes in criminal matters, including the advisability of developing a new instrument for that purpose.
It has been held by Delhi High Court (Anupam Sharma vs Nct of Delhi And Anr. Decided on 23 August, 2007) ‘Restorative justice’ may be used as a synonym for mediation. The object and nature of restorative justice aims at restoring the interest of the victim. Involvement of the victim in the settlement process is welcome in the process of restorative justice. It is a process of voluntary negotiation and concentration, directly or indirectly between the offender and the victim.
Restorative justice (also sometimes called reparative justice) are not theories of punishment Rather, their argument is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centered. They envisage less resort to custody, with onerous community-based sanctions requiring offenders to work in order to compensate victims and also contemplating support and counseling for offenders to reintegrate them into the community.
One area which is totally overlooked in the above practice is the plight of the victims. It is a recent trend in sentencing policy to listen to the wailings of the victims. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. A glimpse at the field of victimology reveals two types of victims. First type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. Second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner.
The basic elements in the philosophy of restorative justice contain 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. Offenders’ obligations are to make things right as much as possible according to one thought.
It’s the time we, apart from asking what law was broken, who broke it, how should they be punished, also start asking questions like who has been hurt, what are their needs and who is responsible for making things right?
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