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Restorative Justice: Balancing the Rights of the Victims and the Wrongdoers

Updated: May 3

Hiral Mehta*

 

Abstract

Restorative justice is an approach that addresses the harms and needs of the victims. It allows an offender to gain insight into the causes and effects of their actions and understand the responsibility of those acts. This research paper evaluates the concept of Restorative justice as a flexible and variable approach that can be adapted to different situations and an ideal method to deal with different kinds of offences and offenders, including situations involving heinous crimes. It focuses on the rights of the victims by allowing them to engage in conflict resolving procedures alongside various alternate options to the traditional criminal justice system such as mediation, alternate dispute resolutions, Panchayats, etc. Restorative justice is a better way to deal with crimes involving juvenile offenders. In such situations, the primary objective of the intervention is to ensure that juvenile offenders do not continue to engage in illegal activities and are provided with a fair chance at life.


Keywords

Restorative Justice, responsibility, Rights of the victims, alternatives, mediations, juvenile offenders


Introduction

Committing a criminal act is more than a mere violation of the law. It has a negative impact on people, relationships, and society and manifests in distress. The scales of justice have been disproportionate in favor of defendants at the cost of the victims for too long. The lack of a formal legal process that redresses the harm done to the victims has, in turn, revictimized the crime victims. Although the offenders are punished, the feelings of their trauma and sufferings intensify when they are unable to voice their pain. Thus, there is a need to repair the harm suffered by the victims through an appropriate justice system. The ideal way to repair these damages is to have the parties resolve the issue together. The party that is affected the most by the crime should be able to engage in its resolution. Participation in the justice process would be therapeutic as it would help the victims to better understand the details of the crime and give them an opportunity to share their stories. Further, it would help the victims validate their loss and the sense of being wronged. Justice requires restoration for victims, criminals, and societies affected by crime. Therefore, to alleviate suffering, society should focus on the needs of the victimized parties as well as on the responsibilities of wrongdoers.


The traditional perspective considers an offence to be a violation of the justice system. It furthers the establishment of guilt and eventually imposes a punishment that fits the crime. It considers crime a wrongful act against the state and disregards the importance of reintegrating the victims and the offenders into society. It also fails to provide the victims the opportunity to voice their emotions and sufferings. Thus, the concept of restorative justice aims to address the offence committed through a different perspective by seeking reparation for the same. It allows the wrongdoer to comprehend the intensity of crime they have committed, regret the harm caused by their actions, and compensate for the same.


Types of Restorative Justice Programs

Restorative Justice is best accomplished through cooperative processes that allow the victims and offenders to meet face-to-face. This enables them to express their feelings directly to each other and develop a new perspective of the situation.


i. Victim-Offender Conferencing (VOC)

The most effective plan of action to address youth crimes is victim-offender conferencing. Victim-offender conferencing includes various other programs, such as mediation, victim-offender dialogue, and victim-offender reconciliation. Victim-Offender Conferencing programs feature a face-to-face encounter between a victim and an offender, facilitated by a third-party mediator, with the provision of additional support personnel for either party. [1] These methods serve as engaging programs for juvenile delinquents that help in their character development. Interacting with adolescent delinquents can mold the child’s life into something much more meaningful. The primary objective of VOCs is to discuss the harms caused as a result of the crime or violation by the offenders and to reach an agreement between the two parties. Studies show that guilt-prone individuals are more inclined to assume responsibility for their offences and faults. The feelings of remorse and guilt stimulate a more positive set of feelings, thoughts, and behaviours. This method allows the victims to express their feelings, such as shock, fear, and anger, and fosters constructive intentions in the wake of the errors and consequent constructive behaviors among the offenders.


ii. Mediation

Mediation programs essentially refer to a meeting between the victim and offender facilitated by a professional and trained mediator. With the help of a trained third party, they can reach an agreement. This process will also boost the healing process by bringing closure to both parties. Ideally, the third party first individually meets the victim and the felon to prepare them for the meeting. The victim and offender attempt to resolve their issues and learn about the impact of crime on each other’s lives. The mediator ensures that both the parties are given fair opportunities to express their feelings and perceptions of the crime. This usually dispels the preconceived notions the parties may have about each other. Addtionally, this ensures that the encounter with the wrongdoer does not re-victimize the victim and that the wrongdoer understands their responsibility for the incident and the effects of the incidents. With the assistance of the mediator, the mediation program ensures that the offender compensates for the damages caused to the victim. Studies show that this method has high satisfaction and participation rates. It successfully concludes the process of restitution and results in reduced fear among victims and reduced offences by the perpetrator.


iii. Group Conferencing

Group conferencing is a modern approach that was first adopted and implemented in New Zealand in 1989. It is one of the most systematically institutionalized restorative justice methods. Each conference includes a convenor or facilitator. It includes the participation of the family and friends of the parties, community members, attorneys, and social welfare officials to address the consequences of the crime effectively and facilitate a desirable outcome for the victim as well as the offender. It aids in exploring appropriate ways to prevent acts of transgression from reoccurring. Conferencing programs involves a variety of groups to instill a sense of responsibility in the offender and devise a strategy for restitution. The community consensus on the resolution and condemnation of the offensive behavior leads to the clarity of norms and values. Moreover, qualitative studies suggest that this method has been very effective in helping offenders develop empathy for their victims. It has also resulted in a change in the offender's behavior and improved relationships between the families and the police and strengthened support networks for the offender.


Restorative Justice in India

In 2000, The Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century emphasized on the need for the development of restorative justice policies, procedures, and programs that are respectful of the rights, needs, and interests of victims, offenders, communities and all the other parties. Later in 2002, the U.N. Commission on Crime Prevention and Criminal Justice suggested making ‘Restorative Justice’ a part of the criminal justice system. This was proposed to reduce the burden on the criminal justice system and encourage programs that take legal, social, and cultural circumstances into account.


India’s criminal justice system focuses more on retributive justice – justice based on institutionalised retaliation. The system is based on the principle ‘justice means punishment.’ However, recently, a relevant question is being asked – “justice for whom?” In many situations, the punishment is deemed to be not satisfactory enough by the victims and also fails to fulfill their other important needs: solace for their loss, providing mental relief, and mending their injuries. Restorative justice lays equal importance on the process as well as the outcome. It includes different problem-solving methods focused on the active involvement of both parties in resolving the issue and mitigating the negative effects of the crime.


Recently, in India, the courts have implemented restorative justice values in matters involving heinous crimes and inflicted rigid sentences that have resulted in furor among the legal community and civil society. The main idea behind this concept is to let the offender confess and apologise to the victim, and encourages the offender to gain insight into the causes and effects of his or her behaviour that would eventually guide him into non-repetition of the offence. The offender would also be obligated to mend the damage and harm caused to the victim.


It has been observed that numerous criminal proceedings are initiated just to bully the opposite party and settle personal scores in a civil suit. The criminal system is already overburdened with too many cases; between 2010 and 2020, pendency across all courts grew by 2.8% annually. As of September 15, 2021, over 4.5 crore cases were pending across all courts in India. Of these, 87.6% cases were pending in subordinate courts and 12.3% in High Courts. Therefore, the use of alternative solutions should be promoted. The concept of restorative justice encompasses the idea of reparation and compensation to the victims. In Salem Advocate Bar Association, Tamil Nadu v. Union of India,, the Supreme Court observed that Section 89 of the Code of Civil Procedure that aimed at encouraging out-of-court settlement was constitutionally valid and key to expediting dispute resolution. Later, in Anupam Sharma vs Nct Of Delhi And Anr, , the court stated that “The object and nature of restorative justice aims at restoring the interest of the victim.” Therefore, the involvement of the victim in the settlement process is important to ensure restorative justice. It is a process of voluntary negotiation that allows the parties to mitigate the negative consequences.


The restorative processes do not necessarily rule out all forms of traditional punishments. It aims to achieve positive and reforming outcomes focusing on meaningful reparation. Usually, two criteria, the seriousness of the crime and the criminal background of the accused, are considered to prescribe a punishment. Efficient policies on sentencing are required to ensure equal treatment of all individuals. Introducing more uniformity and consistency into the sentencing process makes it easier to predict just sentencing outcomes. The principle of proportionality, as followed in State Of U.P vs Sanjay Kumar, prescribes that “the punishments should reflect the gravity of the offence and also the criminal background of the convict”. In this case, the respondent, Sanjay Kumar, was charged under Section 376 and 302 of the Indian penal code. The trial court convicted the victim and awarded a death sentence. Being aggrieved by this decision , the respondent appealed to the high court. However, the High Court reduced the death sentence to life imprisonment. Thus, the appellant filed a petition before the Supreme Court against the decision of the High Court. The Apex court, balancing the aggravating and mitigating factors, upheld the decision of the High Court and stated that it is important to inflict a punishment appropriate to the offence in order to correctly represent societal disdain of the crime. In a criminal trial, the type and intensity of the offence, not the offender, are relevant factors in determining the proper sentence. The court observed that unnecessary sympathy in imposing an insufficient penalty would do more harm to the public system by undermining public confidence in the legal system's competence, and society could not long survive under such grave risks. It further states that “By laying emphasis on individualised justice and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing.”


In the Niti Aayog report titled Strategy For New India @ 75’, the organisation suggested the establishment of a mechanism that would mandate the parties to compulsorily attempt to resolve the conflict using alternate methods of resolution like mediation and conciliation before approaching the court.


Thus, there is a need to formulate policies aimed at the development of a culture favorable to the use of restorative justice methods among the law enforcement, judicial, social, and local authorities. The pro-functional approach towards dispute settlement using techniques outside the formal legal system would highly influence the members of the society and also reduce the number of cases brought to the courts. Various legal bodies around the world have accepted restorative justice programs like mediation, ADRs, Panchayats, etc, as an efficient and ideal way to resolve civil, family, and commercial disputes. The Indian courts have positively supported and suggested mediation programs in civil cases for early resolution and also for bringing down court load and pendency. The overwhelming effect of this has prompted some Indian courts to suggest mediation and ADRs in a few criminal cases as well.


Restorative Juvenile Justice

In the recent times, Juvenile Delinquency has become a fundamental issue of concern for the legal justice system. A juvenile can be defined as a child who has not attained a certain age at which he can be held liable for his criminal acts like an adult person under the law of the country. The word delinquency has its roots in the Latin word ‘delinquere’, which means to leave or to abandon. Juvenile delinquency refers to crime that is committed by a young person under a certain age.


The age of juvenile delinquent is not uniform all over the world and differs from country to country. The laws of a particular country determine who can qualify as a child and be included within the ambit of the term. The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. According to the old Juvenile Justice Act 1986, boys under 16 years and girls 18 years were treated as juveniles. However, this act was amended in 2015, to treat boys and girls between 16-18 years as adults in the cases involving commitment of heinous crimes.


Delinquency is often regarded to be social evil, comprehensive of socially unacceptable behaviour of children. These acts include use of vulgar language, gambling, stealing, commitment of heinous crimes like murder, sexual offences and indulging in substance abuse.


Delinquency Classification:


i. Individual Delinquency

Under this, only one person or individual is involved in the commitment of a delinquent crime and the reason can be attributed to the specific person and his/her individual family relations.


ii. Group Support Delinquency

Under this, crimes are committed with a group of individuals and not in a single capacity. The reason for such a delinquency can be attributed to the culture in the neighbourhood rather than the individual’s family.


iii. Organised Delinquency

These delinquencies are committed with proper prior planning and formation of organised groups.


iv. Situational Delinquency

Unlike other types of delinquencies, having deep rooted causes, situational delinquency occurs as an impulsive reaction in the moment.


The Factors of Juvenile Delinquency are as Follows:


i. Social Factors

The society at large influences the choices of a child and has a huge impact in the choices made by him/her. The companionship, of family and friends available in the neighbourhood also impacts these choices. In addition to this, availability of drugs in the neighbourhood, school, joblessness, a broken home, addicted parents and rural urban migration are other social factors contributing to juvenile delinquency. Familial characteristics such as weak parenting skills, family size, home discord, child ill treatment, and antisocial parents are major factors linked to juvenile delinquency. Various factors such as peer errant behavior, peer approval of criminal behavior, attachment or allegiance to peers, and peer pressure for deviance have all been associated with adolescent antisocial behavior


ii. Environmental Factors

A child’s development is influenced by many environmental factors. These factors can affect a child’s behavioural outcome. Developing a better understanding of the environmental causes of juvenile delinquency allows the society to better protect children from becoming offenders. Juvenile delinquency is a deviance phenomenon caused by bio-psycho-social factors and characterized by the incapacity of minors and young adolescents to adapt to the rules of conduct in society. Family environment can present either risk or protective factor, socio- cultural environment and intra family factors influences anti-social. However, in recent years, the heinousness of the crimes committed by juveniles is compelling the judiciary of various countries into lowering the age of juvenile delinquency to 16 years. Factors such as inequality within race, availability of resources, dysfunctional families and lack of proper education are all interconnected and become leading factors of juvenile delinquency. With an increase in the number of risk factors to which youth are exposed increases, the probability of them engaging in delinquent conducts also rise. Technology is the most influential cause of juvenile delinquency. It is an important issue for our criminal justice system because majority of these youths engage in violent crimes.


iii. Individual Factors

These factors include the personal habits of the individual, their age and gender, mental health, emotional capacity and history of substance abuse as well. Various individual-specific characteristics are linked to delinquency. Low verbal IQ and delayed language development have both been considered as causes of delinquency. Race and caste discrimination also triggers delinquent attitude among young children. It is observed that “Children with low academic performance, low commitment to school, and low educational aspirations during the elementary and middle school grades are at higher risk for child delinquency than are other children.”[2]


Preventive Measures for Juvenile Delinquency

Firstly, identification of children with deviant behavior and then providing them with the required treatment is of utmost importance. These adolescents become habitual measures are not taken on time. There has been an improved understanding of the importance of preventive measures for juvenile delinquency. One of the most basic measures is to assist children and families in the early stages of life by spreading awareness by educating the family and spotting potential delinquents early on. Other remedies include assistance to the under-privileged members of the society, education on substance abuse, clinics for child guidance and improving the socio-economic standards of the society.


Some of the provisions that are very useful for the welfare, development and growth of the juveniles that prevents them from transgressing have been mentioned below.

  • Individual Programs- It involves the prevention of juvenile delinquency through the methods of counselling, psychotherapy and proper education.

  • Environmental Programs- It involves the using techniques with a view to change the socio-economic context that is likely to promote delinquency.


Rehabilitation of Juvenile Delinquents

Rehabilitation is a method of reintegrating adolescents back into society with the understanding that they are not inherent felons and that they may be reintegrated back into society through counseling and educational methods. Juvenile courts, probation houses, licensed institutions, and foster homes are among these organizations. A few amended clauses of the Juvenile Justice Act provide for one or more juvenile justice boards in each district, with judges and social workers who have a thorough understanding of children's psychology, psychiatry, sociology, and legislation. The approach for rehabilitation and social reintegration is outlined in Section 39. Its goal is to create individualized plans for each child, preferably through family-based care, using a variety of approaches such as restoration to family or guardianship, with or without monitoring or sponsorship, adoption, or foster homes. Section 46 sets forth guidelines for assisting juveniles in resettling into society after they are 18 years old, as well as providing financial assistance to such minors.


The current juvenile justice system relies mainly on expensive and harmful incarceration, harsh probation, and other excess punitive sanctions. It lacks an adequate legal framework and a specialist workforce. This punitive approach fails to yield fruitful outcomes. It leads to high recidivism and victim dissatisfaction. The procedures followed by criminal courts to settle conflicts involving juvenile defendants, especially for petty crimes, can be unjust and too severe. Therefore, to ensure that juvenile delinquents' rights are protected and preserved, restorative justice programs should be used. Principle IV under rule 3(2) of Juvenile Justice (Care and Protection of Children) Rules, 2007 states that, “In all decisions taken within the context of administration of juvenile justice, the principle of best interest of the juvenile or the juvenile in conflict with law or child shall be the primary consideration.” Retribution and repression must give way to rehabilitative and restorative objectives of juvenile justice. This principle aims to ensure that the juvenile has physical, emotional, intellectual, social, and moral development and ensures the safety, well-being, and permanence of each juvenile delinquent, thus enabling each child to survive and reach his or her full potential.


Restorative Juvenile justice is an alternative method that can be used to resolve conflicts between young adults. The earliest juvenile reformative establishment in India was set up in Bombay in 1843, and the first act, known as the 'Apprentice Act,' was enacted in 1850. The Indian Penal Code, 1860, under Section 82 and 83, grants absolute and conditional immunity to children under the age of seven who have committed an offence. In the case of Hiralal Mallick v. State of Bihar, a 12-year-old boy was found guilty of violating section 302 read with Section 34 of the Indian Penal Code, along with his two elder brothers. The court gave him a life sentence. However, because he was 12 years old at the time of the crime, he was granted a reduced sentence.


The Juvenile Justice (Care and Protection of Children) Act, 2000 is India 's principal legal mechanism for juvenile justice, as it takes a child-centered approach to meet their developmental requirements. This Act was revised in 2006 and 2010 to emphasise the importance of the kid over the crime he or she has done, and to ensure that the juvenile is on a reformative track instead of a downward spiral back into delinquency. The concept of restorative justice is a contemporary idea that is developing and gaining acceptance throughout the world. It focuses on attaining justice, fostering accountability, and ensuring the efficient communication required to mend the damages. The participation of the aggrieved parties is very important to bring out the essence of restorative justice. It includes inculcating values such as respect, responsibility, integrity, empathy, etc.


Conclusion

Restorative justice is an alternative problem-solving approach to criminal acts involving the victims and the wrongdoers, the community, and a third party. It is not a specific process laid down under any statutes, but rather a concept that orientates the general practice of making amends to the victim of a crime. Restorative justice is different from the traditional criminal justice system since it emphasizes the parties' relationship rather than a closed procedure that takes place in isolation. It focuses on restoration of the loss suffered by the crime between a victim and an offender using alternate methods such as mediation, Alternate Dispute Resolutions, and Victim-Offender Conferencing.The juvenile justice system needs a new focus and a different rationale. Subjecting young offenders to rigid punishments for petty crimes would only hinder their development and draw them back into criminal activities.

Restorative justice is centrally focused on restoration: restoration of the victim, restoration of the law, restoration of the harm caused by crime to the victim as well as the community, and restoration of the offender’s responsibility. It equally, if not more, aims to construct a better and just society.

[1] https://www.ojp.gov/pdffiles1/ojjdp/grants/250872.pdf [2] Rolf Loeber, David P. Farrington, Child Delinquents: Development, Intervention, and Service Needs, 1, 223-237 (2001).



 

[*] Hiral Mehta is a second-year student at Symbiosis Law School, Pune, India.


Preferred Citation – Hiral Mehta, “Restorative Justice: Balancing the Rights of the Victims and the Wrongdoers", Syin & Sern Law Review, 2nd May 2022.

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