In order to “identify” and “address” injuries, needs, and obligations in order to heal and put things right, “restorative justice” refers to a procedure that incorporates as many people as possible who have an interest in a particular crime.This idea holds that when a wrongdoing or crime is committed against a specific person, attention should be paid to that person rather than the state portraying itself as the main victim.
Difference Between Conventional Criminal Justice System and Restorative Justice –
Three fundamental questions are raised by the traditional “criminal justice system”:
Which legal statute has been violated?
Who disobeyed the law? additionally
What penalty are they due?
However, a new set of questions is posed from a restorative perspective, such as:
Who has been harmed?
What requirements do they have?
Whose responsibility are these?
In other words, crimes essentially happen when people hurt each other and break their relationships. Individuals who are supposed to live in harmony and peace within the society betray these implicit commitments and carry out deeds that undermine the social fairness that our constitution assures us of.
The foundation of restorative justice is the idea of “Creative Restitution.”
The existence of “humanity” and “accountability” set this system apart. The offender in creative restitution must walk the “second mile” with other offenders and find ways to make amends to the victims of his crimes. The offender has a duty to change the other offenders in addition to being held accountable to the people he has harmed.By providing for their necessities, it seeks to make up for the losses suffered by the victims and to ease the offender’s worries so that he can turn to rehabilitation and reintegration into society.
Concept of Restorative Justice –
“Restitution” is not a new idea in the penal system. It has existed since the beginning of time. Reparation was set aside for civil wrongs, and punishment was meted out for crimes, when acts and omissions against generally accepted social behaviour were designated as crimes or wrongs. Therefore, even though restitution is commonly employed to right civil wrongs, Dr. Albert Eglash supported its application in criminal cases as well.
All parties involved in the offence, including the victim, the state, the judiciary, and the offender, are included in “restorative justice”. In order to collaborate to address and resolve the issue that has arisen as a result of the offender’s actions, it acknowledges their needs and points of view. Stakeholders from all sides get together to discuss the consequences of the offender’s injustice and decide on a plan of action that will work for everyone. Its foundation lies in the optimism principle, which holds that getting the offender and victim to sit down and talk about their feelings is beneficial to them both.
This is meant to make up for the harm done to the victim, address the root causes of the criminal’s actions, and reassure the public that the offender has turned his or her life around and is no longer a danger. The felon has recovered from the procedure and is no longer a threat to society.
Above all, this perspective maintains that rather than crimes being committed against society, they are committed against people, relationships, and emotions. Retributive justice held that it is a violation of one person by another, and this is perhaps the only area where restorative justice and retributive justice agree.
However, restoration is focused on the future because it aims to address the issue that the offender’s actions have caused now. The felon has recovered from the procedure and is no longer a threat to society. Conversely, retributive justice punishes the criminal solely for the actions that he committed and goes to the past to establish guilt. It therefore becomes incumbent upon us to right the wrongs.
It often brings victim and offender together to talk about how they have been victimised, how they have been injured, why they have committed crime, and how to find a path forward that works for everyone. As a result, it is a solution-focused approach that helps the offender as well as the victim rather than being punitive. As such, it recognises the needs of the victim, something that the Indian Criminal Justice System has frequently been accused of neglecting.
According to Justice Wadhwa, “if justice is not served to the victim of the crime, criminal justice would appear to be lacking.” In the criminal justice system, a victim of crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially if he passes away or sustains more injuries. Even while a life lost or an honour taken cannot be restored, compensation can at least bring some comfort.” Restitution and compensation to the victim are now the top priorities for all criminal justice systems worldwide.
Process of Restorative Justice –
- Dialogue between victim & offender: It has received a great deal of attention globally and is one of the best ways to demonstrate how restorative justice operates. The “victim” and the “offender” meet in person with the assistance of a skilled mediator to devise a plan to make up for any harm caused by the crime or civil wrong that occurred.
- Conferencing: “Community service,” “offender therapy,” monetary restitution, symbolic restitution catered to the victim’s needs, or any other agreed-upon undertaking to repair the victim’s harm caused by the offender are all examples of redress that can be discussed and agreed upon during a sentencing hearing.
- Forming restorative circle: Stakeholders get together in restorative circles to talk and listen to one another. During the discussion, participants should stand in a circle and give each other a fair chance to speak. People can talk about the reparation for the crime or civil wrong as well as its effects on the victim, their relatives, and the community in these Circles.
Restorative Justice in India –
The “adversarial criminal justice system” in India has certain examples of “restorative justice,” which attests to the existence of some instances of “adversarial justice” in the “Indian criminal justice system.” The accused is “presumed innocent” unless and until they are proven guilty, with the exception of certain situations in which the “onus of proof” is on them. Alternatively, proving the defendant’s guilt beyond a reasonable doubt falls beyond the purview of the prosecution.
Anupam Sharma v. NCT of Delhi and Anr. 146 (2008) DLT 497, The “Delhi High Court” ruled that mediation and restorative justice are equivalent. Restoration of the “victim’s interest” is the goal of “Restorative justice” and nature. In restorative justice, the victim’s involvement in the “settlement” process is welcomed. It is an agreement and negotiation process that is consensual between the perpetrator and the victim, either directly or indirectly. In the field of “victimology,” the “Gujarat High Court” claims that this ruling is a first step towards realising the goal of restorative justice for crime victims.
Manohar Singh v. State of Rajasthan and Ors. AIR 2015 SC 1124, According to the Supreme Court, the purpose of Section 357 of the “Code of Criminal Procedure 1973” is to guarantee that victims’ interests are taken into consideration when developing the “criminal justice system”. There are instances when the circumstances are so dire that a person shouldn’t be kept behind bars. To ensure that complete justice is done, it is instead possible to order the accused to make restitution to the victim or other person who was harmed as a result of the crime.
BY – APARNA SINGH KSHATRIYA