Reconciliation Realised: A Dive into Restorative Justice Paradigm
The concept of restorative justice is an evolving notion that is still
developing in the Indian judicial system. Practices of restorative justice aims
to redress the dehumanisation that individuals in the traditional criminal
justice system endure. This research examines the evolution of restorative
justice concepts in the Indian judicial system, emphasising its ideological
basis in respect of primary elements and potential impact, on both the victims
and offenders Further, the research discusses the ways in which restorative
justice incorporates the victim, the offender, and the community in an effort to
repair the suffering created by criminal behaviour.
Furthermore, the integration of restorative justice within certain legal systems
in India, as well as globally is studied in the paper. This research also
provides several case laws and successful restorative justice programs in
various legal contexts.
Introduction
Indeed, restorative justice has been a prevalent form of justice for
generations. However, it differs significantly from the penal system most of us
are used to. Instead of imprisoning offenders, a restorative justice system asks
them to atone for their crimes and alter their ways in the future. It is a
system that considers crime to be an act of harm rather than a violation of the
rules. As a result, it considers jail an indirect, insufficient, and ultimately
counterproductive solution to crime.
As the name suggests, they are a set of concepts and activities that provide an
alternative method to dealing with crime and its consequences. Its techniques
address the dehumanisation that many persons face in the regular criminal
justice system. Instead of considering a criminal conduct as only a breach of a
law or regulation, restorative justice considers it a violation of people and
relationships.
Furthermore, restorative justice aims to involve those most directly impacted by
a crime in the legal system, mainly victims and survivors. Restorative Justice
is a problem-solving approach to crime that involves parties and the community
working with statutory bodies.
The principles of Restorative Justice involve including the perpetrator and
victim, as well as their family and communities, recognizing crime in its social
context, and adopting a proactive approach to problem-solving. It emphasises the
interconnection of criminal justice with other components, viewing it as a
component of a larger social context rather than as a stand-alone system.
The subject of accessibility has always been a key component of criminal justice
administration research throughout its lengthy history. Indeed, one of the most
fundamental and inevitable questions about any notion, theory, or concept of
justice is whether or not certain aims can be achieved by a certain means or by
any methods at all.
Restorative justice, being a long-standing concept in human society owes much to
contemporary movements aiming at fixing the shortcomings of the current judicial
system and generating alternative ways of "providing justice". In order to
establish societal peace and order as well as minimise complaints about
procedural justice, restorative justice entails a complete procedure that
operates inside the ordinary legal framework and expedites the resolution of
legal disputes. Therefore, it is one auxiliary method to refute the societal
perception of "injustice" against the victim, the criminal, and the community.
Evolution
Restorative justice is not unique in its dialogical and restitutive nature.
Several indigenous civilizations exhibit comparable procedures and ideals.
Before the nation state was formed, misconduct was predominantly seen in an
interpersonal rather than a legal context, according to Howard Zehr, one of the
early proponents of restorative justice. The communal justice system of this era
was significantly less structured and tended to be restitutive.
Eventually, a more formalised and centralised legal justice system took the
place of the informal, customary, and negotiated aspects of communal justice. It
was the state's duty to impose a legal system and associated penalties, not the
communities' (Zehr, 1990). In contrast, the majority of indigenous traditions
understood misbehaviour not in legal terms but in deeply community ones. This
engendered a shared obligation to address the damage inflicted by misconduct,
including an extensive network of connections encompassing both the transgressor
and the affected party.
As stated in the preamble to the Basic Principles traditions have affected the
inception of restorative justice in the modern era often draws upon traditional
and Indigenous forms of justice, which view crime as fundamentally harmful to
people." Restorative justice as we know it now, began to take shape in North
America in the 1970s when the first programs of its kind were introduced.
Two probation officers in Kitchener, Canada, gathered together the perpetrators
and victims of a vandalism case in 1974 to address the offence head-on and talk
about methods to set things right. The Victim-Offender Reconciliation Program (VORP)
was established as a result of this successful experiment, which also served as
the foundation for further advances in North America and elsewhere. Over the
ensuing decades, as the program expanded and changed, it produced a fresh way of
looking at crime that was eventually labelled "restorative justice."
Communities' decisions to adopt or maintain specific customs will interpret the
values found in these practices, and these social life components will form the
compatibility and tradition in establishing social norms. Adherence to these
practices also establishes the legal tradition of the society to control the
interpersonal relationships among members on various aspects of their daily
lives. The complex evolution of the current legal system in India indicates
that, with the exception of a few family law areas, the traditional elements and
dispute resolution process have essentially been eliminated in favour of a more
gradual adoption of common law principles through case law and analogy.
Perspective of victims
Victims often exhibit the majority of fundamental desires. Being the target of
deliberate cruelty or violation by another person can seriously impair that
person's sense of worth and well-being. Victims frequently feel confused,
denigrated, taken advantage of, angry, and insecure. Their sense of independence
is restricted by worries and anxieties, bitterness and fury, and even material
or physical losses. The shock of the crime and the perpetrator's recollections
may leave the victim permanently disabled.
In the past, the criminal justice system has not given victims' needs much
thought. This is because, in the majority of contemporary criminal justice
systems, the state is named as the "victim" of the offence rather than the real
person hurt, and the criminal charge is one of breaching the law rather than
causing harm to the individual. As a result, victims are essentially incidental
to the legal process.
Victims are usually not allowed any say in the proceedings beyond the fact that
their participation is confined to testifying on behalf of the prosecution. In
many cases, victims may not even need to be present in person during the trial
because the criminal justice system is primarily concerned with the law, not the
individual.
In Manohar Singh v State of Rajasthan and Ors AIR (2015) SC 1124, the
Supreme Court said that the whole point of Section 357 of the Code of Criminal
Procedure, 1973 is to make sure that the interests of the victims are taken into
account in the "criminal justice system". Sometimes, the situation is so bad
that it doesn't make sense to keep a person in prison. Instead, directing the
accused to pay some money to the victim or the person who was hurt due to the
crime can make sure that some justice is served.
Standpoint of offenders
Even criminals can seek appropriate justice. They demand a fair trial and due
process. They have to acknowledge the consequences of their actions and take
responsibility for them. When it comes to facing their own past of trauma,
disadvantage, and victimisation, they often need help. Not just their worst
deeds, but their complete humanity must also be acknowledged. They also need the
opportunity to make amends for their wrongdoing and be accepted back into the
community of law-abiding individuals. In theory, the legal system makes a
conscientious effort to meet the demands of criminals, particularly their right
to a fair trial.
How can this be applied?
In many situations or crimes committed in a community, restorative justice
proved useful. In criminal circumstances, victims get the chance to express
exactly how the crime has affected their life, receive answers to any unresolved
questions, and participate in holding the offender accountable for their
actions. Criminals have also been given the chance to share their own narratives
about the motivations behind their crimes and how they have affected their
lives. They are offered the opportunity to attempt mending their connection with
the victim to the greatest extent possible by some form of recompense.
Victims can testify in court proceedings about how the incident affected their
lives, get information about what happened, and take part in holding the
perpetrator responsible. Offenders might share their tale on why they committed
the crime and how it has impacted their life in the interim. They are offered
the chance to personally recompense the victim to the extent that it is
feasible. In the case of civil cases, they might be in the form of money,
community service linked to the offence or generally, education meant to
discourage recidivism, or a statement of sorrow.
In order to assess the experience and fallout from the crime, concerned
individuals get together with all parties engaged in the community. Once they
can relate to their victims' experiences, criminals learn about them.
Subsequently, they discuss how they came to commit the crime and their personal
experiences. A plan is established to prevent such occurrences in the future and
to make up for the losses suffered by the affected parties. The community holds
the offender or offenders accountable for adhering to the plan.
Recognizing restorative justice programs
The term "restorative justice program" might come across as overly formal or
highbrow. Nonetheless, as societies shift away from only penalising tactics and
toward methods centred on rehabilitation and restoration, this is an idea that
is becoming more and more popular around the globe. Changing the question from
"Who is to blame?" to "How can the harm be undone?" offers a different
perspective. A restorative justice program is essentially a framework or
procedure intended to mend the damage created by conflict or criminality.
Restoring harmony and balance for all parties is the main goal, not just
punishing the offending parties.
One well-known instance of a restorative justice initiative that has been
effective is Family Group Conferencing (FGC) in New Zealand. An unsettling
number of juvenile criminals were imprisoned prior to FGC. However, the legal
system changed from a blame-and-punish strategy to a more restorative one with
the advent of FGC. A resolution to the offence that meets the needs of all
parties concerned is discussed at the conference, which is attended by the
victim, the offender's family, and the community.
In victim-offender mediation, a mediator helps the victim and the offender
communicate so that both may share their needs and feelings related to the
offence. Finding a solution that addresses the harm caused and is agreeable to
all parties is the goal. Youth encounters with the legal system can have a
significant effect on them.
Furthermore, the punitive judicial system can leave young people with lasting
wounds that hinder their social and emotional growth. Programs for restorative
justice are important in this situation. The UK's Youth Restorative Justice
Programme, which deals with minor offences and situations of disruptive
behaviour, is one noteworthy example. Young offenders have the opportunity to
understand the consequences of their conduct, express sorrow, and engage in
activities aimed at making amends through a mediation process.
In order to use restorative justice techniques, Delhi Police established a
Restorative Justice Unit in collaboration with NGOs and specialists. Instead of
using typical disciplinary tactics, this unit sought to address disputes and
minor offences via communication and reconciliation. Also, such approaches have
been used in several Indian schools to manage student disputes and disciplinary
difficulties.
These programs include children in the resolution process with the goal of
instilling in them an impression of accountability and responsibility. Several
state community mediation centres have been experimenting with restorative
justice strategies. These facilities frequently employ skilled mediators who
help victims and criminals communicate in order to reach amicable agreements
that lessen the load on the official legal system.
For young offenders, some states in India have looked into alternatives to
restorative justice. Young offenders are to be rehabilitated and reintegrated
into society by participation in community-based plans as well as restorative
procedures.
Conclusion:
In summary, restorative justice emphasises rehabilitation over punishment and
offers a revolutionary alternative to incarceration. It is a type of justice
that aims to improve the humaneness of the criminal justice system. Compared to
punitive approaches of justice, which prioritise funding for jails and
incarceration at the expense of other pressing needs like industry, healthcare,
and education, this system is less expensive. The acceptance of restorative
justice ideas is a reflection of a growing understanding of how punitive tactics
fall short in meeting the multifaceted needs of offenders, victims, and
communities.
Restorative justice is a transformational alternative that prioritises healing,
reconciliation, and relationship repair. It aims to address the underlying
causes of conflict and encourage genuine accountability. Additionally, the
cooperation and active engagement of a wide range of stakeholders-including
legislators, attorneys, law enforcement, community leaders, and civil society
organisations-is essential to the success of restorative justice programs in
India.
The integration of restorative justice ideas into the Indian judicial system
necessitates the development of partnerships, capacity building, and discourse.
A thorough analysis of the prospects, difficulties, and practices of restorative
justice within the Indian judicial system yields numerous important revelations.
While it cannot be applied to every crime, restorative justice plays a critical
role in drug misuse, prostitution, traffic violations, and offences involving
minors who are too juvenile to realise the significance of their actions and
will, thus, do less harm to society.
Law Article in India
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