Restorative justice is a wide word that encompasses a variety of initiatives.
But there is no consensus on a specific definition of "restorative justice". A
popular definition given by Tony Marshall defines "restorative justice" as "a
process whereby all parties with a stake in a specific offence come together to
resolve collectively how to deal with the aftermath of the offence and its
implications for the future".
On similar lines, Zehr lists three major objectives of the system of restorative
justice. Firstly, this system aims to put the power to decide on the people
"most affected" by the crime. Second objective of this system is to "repair"
the harm caused because of the crime. And thirdly, it aims "rehabilitation"
of the offender. One characteristic feature of his theory is that the process
is not limited to the "victim", but includes all who are "most affected" by the
However, much like the dominant form of criminal justice system where state is
given the primacy, the victims' involvement or satisfaction is not given much
weightage as a criterion of restorative justice. It is often called that the
"restorative justice" model involves four parties viz. the "victim", the
"offender", the "society" as well as the "government". However, as was the
case with the traditional model, the concerns and needs of the victim is dwarfed
by that of the society and the government. Although a role is provided to the
victim or her representative, but a greater role is provided to the other
parties leaving the victim with a sense of deep injustice. Such is the case
with many criminal justice systems across the world.
The "criminal justice system" in India is also somewhere afflicted with this
problem of lack of effective victim involvement. Although the criminal
procedural laws in India do not mention the principle of restorative justice,
some provisions of such laws provides some features of this model. Further, many
of such provisions were not part of the original laws. They have been introduced
through many amendments which were passed because of a growing awareness of
victim as a stakeholder.
This paper examines the extent of victim satisfaction and participation that
these scattered provisions of the "Code of Criminal Procedure 1973" provide for
and whether they achieve their objective of providing some features of the
restorative justice model. This paper looks into the idea of restorative justice
and explores the various methods which are prevalent around the world. This
paper also looks into various legal provisions in India which implements the
restorative justice model in the country.
In This Regard The Following Questions Come Up Which Need Answers:
- What does the idea of "restorative justice" means?
- Is the idea of "restorative justice" embedded in the India society and
- What are the various methods provided by the "Code of Criminal Procedure
1973" which are in tune with the idea of "restorative justice"?
- Is the victim being given enough attention under the "Code of Criminal
Procedure 1973" (which is an essential of "restorative justice")?
The Idea Of Restorative Justice
What is restorative justice?
" is a process that involves as many people as
possible who have a stake in a specific crime in order to "identify" and
"address" harms, needs, and obligations in order to heal and make things
right. According to this concept a wrongful act/ crime is done against an
individual so there is need to focus on that particular individual rather than
state displaying itself as a major victim.
The Conventional "criminal justice system" mainly poses three questions:
But from a restorative point of view different set of question is asked
- Which law has been broken?
- Who broke the law? and
- What punishment do they deserve?
- Who has been hurt?
- What are their needs?
- Whose obligation are these?
So basically Crime occurs when people inflict harm on one another and violate
their relationships. People who are expected to live in peace and tranquillity
within the community break those implicit promises and commit acts that harm the
social justice guaranteed to us by this constitution. Restorative justice is
based on the concept of 'Creative Restitution,' which was developed by
psychologist Dr. Albert Eglash.
This system is distinguished by the presence of "humanity" as well as
"accountability". In creative restitution, the offender is required to find ways
to make amends to the victims of his actions and to walk a "second mile" with
other offenders. Not only is the offender held accountable to those he has
harmed, but he is also obligated to change the other offenders.It aims to
compensate victims for their losses by attending to their needs, as well as to
address the concerns of the offender, who is given the opportunity to reform
himself and reintegrate into society.
What Entails Restorative Justice?
"Restitution" is not a novel concept in the realm of punishment. It has been
around since the dawn of time. However, when acts and omissions against widely
accepted society behavior were classified as crimes or wrongs, reparation was
reserved for civil wrongs and punishment was meted out for crimes. Thus, while
restitution is frequently used to address civil wrongs, Dr. Albert Eglash
advocated for its use in criminal instances as well.
"Restorative justice" involves all parties engaged in the offense, including the
victim, the state, the judiciary, and the perpetrator. It recognizes their needs
and viewpoints in order to work collaboratively to fix and deal with the
situation that has occurred as a result of the offender's actions. Everybody
stakeholders convene to examine the ramifications of the offender's injustice
and agree on a course of action that benefits all. It is founded on the optimism
principle, which claims that compelling the perpetrator and victim to sit
together and express their emotions benefits both parties.
This is intended to compensate the victim for their loss, to fix the causes of
the offender's crime, and to reassure society that the offender has been healed
and is no longer a threat to society. As a result of the procedure, the criminal
has been healed and is no longer a menace to society.
Above all, this view asserts that crime is perpetrated against individuals,
relationships, and emotions rather than against society. It is a violation of
one person by another, as retributive justice believed, and is likely the only
point of agreement between retributive and restorative justice.
However, restoration is future oriented because it is concerned with resolving
the problem created by the offender's acts in the future. As a result of the
procedure, the criminal has been healed and is no longer a menace to society. On
the other hand, retributive justice looks to the past to prove responsibility
and punishes the offender only for the deeds performed by him. As a result, it
becomes a responsibility to remedy wrongs.
It frequently brings victim and offender together to discuss victimisation, how
they have been harmed, their motivations for committing crime, and how to create
a route that benefits everyone. As a result, rather than being punitive, it is a
solution-oriented strategy that benefits both offender and victim. Thus, it
acknowledges the victim's requirements, which the Indian Criminal Justice System
has been accused of failing to address on countless occasions.
On the same lines, Justice Wadhwa has stated that "criminal justice would look
hollow if justice is not done to the victim of the crime. A victim of crime
cannot be a forgotten man in the criminal justice system. It is he who has
suffered the most. His family is ruined particularly in case of death and other
bodily injuries. An honour which is lost or life which is snuffed out cannot be
recompensed but then compensation will at least provide some solace". To
compensate and restitute the victim becomes the most important duty of every
criminal justice machinery across the world.
Process Of Restorative Justice
Restorative Justice's fundamental principles are implemented in a variety of
ways and models.These efforts are centred on "resolving" the victim's/aggrieved
party's harm, involving "all parties affected by the crime or civil wrong",
"empowering victims", and "facilitating dialogue among various stakeholders".
Dialogue Between Victim & Offender:
It is one of the best ways to show how restorative justice works, and it has
gotten a lot of attention around the world. A trained mediator helps the
"victim" and the "offender" meet face-to-face in order to come up with a plan to
repair any damage caused by the crime or civil wrong that happened.
Conferencing refers to the discussions in which the victim and offender reach an
agreement on redress, which may include financial restitution, symbolic
restitution tailored to the victim's needs, "community service", "offender
therapy", or any other agreed-upon undertaking to repair the victim's harm
caused by the offender
Forming Restorative Circle:
Restorative circles bring stakeholders together to communicate and listen to one
another.Participants should form a circle and give each person an equal
opportunity to speak during the discussion. In these Circles, individuals can
discuss the impact of the crime/civil wrong on the victim, their families, and
the community, as well as the restitution for the same.
Restorative Justice In India
The presence of some instances of "restorative justice" in India's "adversarial
criminal justice system" attests to the presence of some instances of
"adversarial justice" in the "Indian criminal justice system". Except in
specific instances where the "onus of proof" is on the accused, the accused is
"presumed innocent" unless proven guilty. Alternatively, the prosecution is
responsible for establishing the defendant's guilt beyond a reasonable doubt.
The entire premise is predicated on the principle that presuming guilt purely on
the basis of the victim's allegations can result in irreparable injury to the
accused who has not been found guilty through the judicial process. Thus, it
aims to shield the accused from the suffering of society for committing an
unproven crime, as well as the stigma that can be extremely costly to him and
This is precisely the premise for affording the accused so many safeguards.
According to Blackstone, "it is better that ten guilty people escape than that
one innocent person suffer. "In the case of Sanjeev Nanda, the Court said
that "wherein the accused ran over six people including three policemen, the
sentence of convict was reduced to the time he served in the jail and was
further given two years of community service."
In Anupam Sharma v NCT of Delhi and Another
, the "Delhi High Court"
said that restorative justice can be used interchangeably with mediation.
Purpose of "Restorative justice" and nature are to restore the "victim's
interest". Participation of the victim in the "settlement" process is encouraged
in restorative justice. It is a voluntary process of negotiation and
collaboration between the offender and the victim, either directly or
indirectly. According to the "Gujarat High Court", in the realm of "victimology",
this decision is one step toward fulfilling the design and desideratum of
restorative justice for victims of crime.
In Manohar Singh v State of Rajasthan and Ors
 the Supreme Court said
that the whole point of Section 357 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 total justice is served.
Through all these we come to know that though India doesn't have a "restorative
justice system" but have multiple pockets within the laws following its
principle which will be further discussed in detail. They include various
systems like "Panchayat system", "Lok Adalat", "Arbitration" etc.
The Panchayat system has existed in India since ancient times as a method of
resolving disputes. Referring matters to a "Panch" or "Panchayat" has been a
natural way of resolving a variety of disputes. The word "Panch", which meant
"arbitrator", was well known among the villagers. Village Panchayats are an
ancient and "traditional" institution in India.
In general, a "Panchayat" is an assembly of "village elders" and respected
residents. A panchayat is a five-person body, and a pancha is a member of that
body. Sarpanch is the title given to the Pancha's leader.
Village "Panchayats" were territorial in nature, whereas sectarian "Panchayats"
included members of many castes and creeds. "Panchas" was divided into three
grades: "Puga—a council of people from many sects and tribes who dwell in the
same area"; "Sreni—a gathering of traders and artisans from other tribes who are
somehow connected"; and "Kula—a council of clan members".
The "Panchayat system" originated from the ancient notion of arbitration. Prior
to the British era, villagers could not approach their king's court and plead
for justice, and judicial authority was never vested in or exercised by them.
Villagers used to agree under these circumstances to refer their conflicts to a
panel of five village elders, whose collective decision they accepted without
In the absence of serious bias or misconduct, the Courts have generally accorded
recognition and credibility to "Panchayat" findings and awards. For example, in
Sitanna v Viranna, the Privy Council upheld a Panchayat decision in a family
dispute after approximately 42 years.
Due to the complexities created by advancements "in social and economic
spheres", the "Panchayats" became ineffective, insufficient, and obsolete.
Nonetheless, variants of these traditional arbitral bodies are prevalent
throughout India's rural and tribal areas. Panchayats continue to exist among
STs and BCs, where they wield considerable influence over a variety of social
and caste issues.
It is worth emphasizing that a "Panchayat" currently refers to an arbitration
tribunal created by the parties, whereas a Pancha refers to an arbitrator. If
the parties agree, Sarpanch may act as an umpire. The Gram Nyayalayas Act 2008
formalized the Panchayats' informal practices inside communities.
"Gram Nyayalayas" are established at the grass-roots level by the Act. The Act's
objective was twofold: first, to offer residents with convenient "access to
justice"; and second, to ensure that no citizen's right to justice is denied
owing to social, economic, or other disadvantage. The Act intends to establish
courts in every Panchayat or group of Panchayats across the country. The judge
of this court is known as a Nyayadhikari, and the court itself is known as "Gram
The "Nyayadhikari" will be a "Junior Civil Judge" as well as a Magistrate.
Additionally, the judge will be assisted at such mediations by a panel of
official conciliators. In terms of aims, procedure, and jurisdiction, this
court's operation will be separate from that of existing courts.
The "Nyayalaya" will be highly mobile, able to conduct its business in an
indigenous setting, close to witnesses and evidence, and in the indigenous
language. Gram Nyayalaya is the latest in a series of structural changes to the
Indian judiciary. In contrast to the conventional emphasis on adversarial
trials, the "Gram Nyayalaya" appears to be a fusion of many special courts'
Under the National Legal Service Authority Act 1987, the Lok-Adalat system is a
uniquely Indian approach. The State's constitutional obligation to provide
"legal aid", prompted by Supreme Court of India decisions, resulted in the
formation of a "Committee for Implementing Legal Aid Schemes (CILAS)". "Lok
Adalat" derives its legal legitimacy from the Legal Services Authorities Act,
1987, and is commonly referred to as the "People's Court".
This is a "non-adversarial system" in which mock courts (referred to as "Lok
Adalats") are held on a periodic basis by the State Authority, District
Authority, Supreme Court Legal Services Committee, High Court Legal Services
Committee, or Taluk Legal Services Committee for the purpose of exercising their
These are typically presided over by retired judges, social activists, or
attorneys. They lack jurisdiction over non-compoundable offences. There are no
court fees and no rigid procedural requirements (i.e., no requirement to follow
the Code of Civil Procedure 1908 or the Evidence Act 1872), which expedites and
streamlines the process. Parties can communicate directly with the judge,
something that is not possible in traditional courts.
A case may be transferred to a "Lok Adalat" if one party petitions the court and
the court believes there is a possibility of settlement after giving the
opposing party an opportunity to be heard. "Lok Adalats" place a premium on
compromise.When a settlement cannot be reached, the case is remanded to the
court. If, however, a settlement is reached, an award is made that is legally
binding on the parties. It is enforceable through a civil court decree.
A critical point is that the award is conclusive and cannot be appealed, not
even under Article 226 as it is a consent judgement. All "Lok Adalat"
proceedings are deemed to be judicial in nature, and each "Lok Adalat" is deemed
to be a "Civil Court". The primary requirement of the Lok Adalat is that both
parties to the dispute agree on a resolution, that the decision is binding on
the parties, and that its order is enforceable through legal process."
"Lok Adalat" is extremely effective in resolving financial disputes, such as
partition suits, damages claims, and matrimonial cases. Lok Adalat is regarded
as a boon to public litigants, as it enables them to have their disputes
resolved quickly and without incurring any costs.
Containing and restricting the Lok Adalat's jurisdiction is extremely difficult,
as most cases are resolved amicably through the process.
The cases that are most suited to the Lok Adalats' functions and are most
likely to be perceived as effective and desirable include the following:
- Landlord-tenant disputes involving the enforcement of rent and vacating
- Compoundable offences.
- Accidents involving motor vehicles.
- Matrimonial cases, which include those involving property given in
marriage, debts, securities, guardianship, child custody, and divorce
The jurisdiction of the "Lok Adalat
" is viewed as a "success of
democracy" because it is a relatively "new" and "cost-effective" method of
providing justice "locally", by local professional people, in close proximity to
the source of the conflict and its resolution. In indigenous and traditional
terms, it can be described as justice paying a visit to your location to bestow
A "Lok Adalat" conveys a sense of justice and fairness alongside a sense of
compromise, establishing a balance and embracing the notion of' restorative
practice.' Cases stemming from non-state transactions are delivering favorable
results in "Delhi", "Gujarat", "Jaipur", "Jodhpur", and "Udaipur", as well as in
select regions of "Uttar Pradesh".
People have reported satisfaction and tranquility following resolution, and even
if the judgment is not in their favor, they have no grievances because the
process is regarded to be free of prejudice, bias, and vengeance.
Arbitration and Conciliation
The Arbitration and Conciliation Act 1996 establishes mechanisms for resolving
disputes through arbitration, mediation, and conciliation. As a result, it
enables affected parties to participate in and resolve disputes amicably. These
procedures are becoming increasingly popular for resolving contract and
partnership disputes. Additionally, courts throughout India have established
mediation centres to shorten the duration of cases and promote swift resolutions
by assisting parties in reaching their own resolutions.
Under the Juvenile Justice (Care and Protection) Act 2015
The Act establishes a number of alternative sanctions, including counseling,
community service, and a fine. Probationary release in exchange for good
behavior and placement in a facility or special home to provide reformative
services. Additionally, the Board appointed pursuant to the 2015 Act may issue
additional orders ordering the kid to attend school, a vocational center, or a
therapeutic center, or barring the child from accessing a specific site. These
provisions are consistent with international instruments emphasising
diversionist techniques for offenders' reintegration into society.
It categorises offences under non serious petty offences, serious and heinous
offences. In the case of petty and serious offences, the initiative can be taken
to familiarise children who commit these offences with the "sufferings" of the
"victims" of their actions. They do not have to be their own victims; they can
also be those in a similar situation.
This actually assists these children in comprehending the consequences of their
delinquency and their impact on the lives of others, as well as the importance
of making amends, which can ultimately result in their reformation. Similarly,
if the crime was committed by a "first-time offender" or in the "heat of the
moment" or out of "necessity", or in circumstances where "defences or specific
exceptions are available", restoration can be used in lieu of any punishment,
Restoratice Jutice In Indian Criminal Procedural Law
The Code of Criminal Procedure 1973 has some rules that are based on restorative
justice. Because of this, the victim and the people who harmed her are
encouraged to come to an agreement. Among the important rules:
The Sections from 265A-265L of the "Code of Criminal Procedure 1973" contain
provisions for 'Plea Bargaining.' As a result, the prosecution saves time that
would have been spent proving those charges, and both the victim and the
offender avoid the court's sluggish process. The other advantage is that the
offender will receive a lenient sentence if he/she admits guilt, whereas in
other cases, the offender would have faced the punishment after proving the
charges in a lengthy trial.
Section 320 of the "Code of Criminal Procedure 1973" allows for the compounding
of an offence. It is applicable only to the offences listed in the section. The
Code makes the section applicable to a broad range of offences (carrying a
maximum sentence of seven years imprisonment), but excludes socioeconomic
offencesand offences related to women and children.
It provides for a court order requiring the victim to be compensated. It states
that when a court imposes a "fine" as the prescribed "punishment" for a
particular offence, the court may order that the fine be paid to the victim to
cover prosecution costs or as compensation for the victim's loss as a result of
the offence. Compensation is payable for both property crimes and crimes against
the human body.Additionally, pursuant to Section 357A the "Code of Criminal
Procedure 1973", each "State Government", in consultation with the "Central
Government", shall develop a "scheme providing funds for compensation to
victims/dependents" who have suffered loss/injury as a result of a crime and
Section 360 the "Code of Criminal Procedure 1973" empowers the court to order
the release of an offender on probation after he or she demonstrates good
behaviour or after being admonished and directed to maintain good behaviour.
Restorative Justice And The Victim: A Critique
In the adversarial form of trial prevalent in India, the victim (or her
representative) had no or very limited role apart from being a mere witness. The
primary reason for keeping the victim completely out of the trial process is
meant to ensure that the trial does not become a vindictive duel and they are
only considered as private parties. However, it is completely undesirable
for keeping the victim out of trial proceedings and restorative processes.
However, with the idea of "restorative justice" gaining more and more space in
the discourse, the focus is now to correct this anomaly, although very slowly.
The victim's misery in the "criminal justice system" has been well studied since
the 1970s, but in the last couple of decades, victims and their considerations
have taken a more important position in the development of both "domestic and
"international criminal justice systems". In general, such improvements have
been warmly received and have proven to be rather uncontroversial. They are
thought to stem mostly from the victims' newfound status as criminal justice
Two significant aspects of these efforts forrestorative justice are
participation of victims and healing of the crime. Therefore, the two
important aspects which need immediate focus is the participation and
rehabilitation of the victims. It is from these features that we can discern
features of restorative justice.
Participation of Victims
One of the essential feature to make the criminal process more oriented towards
restoration is by listening to victim i.e. the person who has borne the
immediate burnt of the criminal activity. It is essential for proper restoration
that the victim has control over the decision making. By ensuring such
participation, they become more empowered than that when they become just a mute
spectator as is the case with traditional adversarial system. Studies have shown
that most victims prefer "bilateral settlement"and seek intervention of third
party only on cases where its not possible to do so.
It was only with the amendments to criminal law in 2008 that the victim found
any mention in the criminal justice system. Section 2(wa) of the "Code of
Criminal Procedure 1973" defines victim as "a person who has suffered any loss
or injury caused by reason of the act or omission for which the accused person
has been charged and the expression victim includes his or her guardian or legal
However, the definition provided by this clause is very narrower when compared
with the definition adopted by the United Nations Organisation which defines
victims "as persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative in Member States, including
those laws prescribing criminal abuse of power". The definition provided by
the Code fails to define the kinds of injury that might afflict the victim and
therefore hands a great deal of discretion to courts to decide as to who is a
victim in each case.
Further a proviso was added to the section 24(8) of the Code to provide the
victim with the right to have an advocate in the hearing. But this right is
subject to "court's permission". And further, that advocate has only got to
"assist the prosecution" and cannot go beyond that. The Supreme Court
interpreted the term "assist" not to include parallel prosecution and said that
the victim's counsel "cannot" examine or cross-examine the witnesses or provide
evidence. All of its pleadings need to be submitted to the Prosecutor who has
the option of not considering them.
The Supreme Court in the case of Rekha Murarka forfeited a chance to advance
victim justice jurisprudence and correct legal flaws. Instead, the decision
contradicts the preceding jurisprudential trend.
The right to participate of the victim cannot be protected by curtailing the
"rights of the accused". The right to participate, on the other hand, can be
realised without discrimination at the proper phases. Rather of examining such a
"normative balance" between the rights of the accused and the rights of the
victim, the ruling restricts the victim's rights by relying on a faulty
interpretation of the function and obligations of the victim's advocate.
According to the ruling, a victim's advocate's right to participate cannot be
granted because, first, the victim's counsel's insistence on questioning a
witness deliberately left out by the prosecution may weaken the prosecution's
case; second, the trial will devolve into a "vindictive battle" between the
victim's counsel and the accused; and third, the victim's counsel's lack of
experience may result in lapses.
In adopting this line of reasoning, the Court has conveyed that it considers
that unless the victim's advocate is submissive to the prosecutor, the
prosecutor will either become ineffective or the victim's advocate will usurp
the prosecutor's job. However, it must be borne in mind that the victim's
participation in the trial is crucial to the prosecution's success. As a result,
the victim's advocate's principal function and obligation is to represent the
victim's personal interests while collaborating with the prosecution.
Further, the Court here assumes that prosecutions properly consider the
requirements of victims, ignoring the fact that the necessity for private
counsel emerges because of prosecutorial mistakes which directly result in
unfairness to the victim, whether deliberate or inadvertent.
Further, the remedy of appeal to higher courts, although made available by
amendments, is limited in case the victim wants to do so. The Supreme Court
has clarified that the victim has a right to appeal, regardless of grant of
leave, only on order of acquittal, or conviction for a "lesser offence" or order
imposing "inadequate compensation" and not on inadequacy of sentence. By
restricting this valuable right to appeal in higher Courts, the requisite
participation of the victim is being curtailed.
A very important objective of any restorative model is to "repair" the
consequences of the crime. In this direction victims' rehabilitation holds a
great significance. But sadly this has not been a major focus of the
"traditional criminal justice system" which only believes in "retribution" as a
method of "prevention" of crimes. A very important aspect of rehabilitation is
the compensation (in monetary terms) which is to be granted to the victim.
In this regard, before the enactment of the "Code of Criminal Procedure
(Amendment) Act 2008", the compensation scheme heavily depended on the fines
that were collected from the convict. And it was distributed only after the
accused the exhausted all her "legal remedies" including "appeal to higher
courts". Further, it was purely at the discretion of the courts and was
available only if the courts imposed a fine on the accused. Further, another
problem with such provision was that the compensation amount depended on the
amount of fine collected from the convict. If the convict is not
economically well off and the amount of fine can't be collected from her, then
the victim would bear the brunt.
From a historical perspective, Section 545(1)(b) of the "Code of Criminal
Procedure 1898" included a provision for "restitution", under which "the Court
could order payment of compensation to any person for any loss or injury caused
by the offence if in the opinion of the Court, such a person was entitled to
substantial compensation". It happened only in a civil court. In its 41st Report
in 1969, the "Law Commission of India" suggested that the term "substantial" be
removed. The "Criminal Procedure Code Bill, 1970", based on these
recommendations, with the goal of amending Section 545 and reintroduced it as
Section 357, as it is today.
In light of such practical difficulties, a debate started on making the state
responsible for paying compensation to the victims of crimes for their
rehabilitation. This debate got further a boost with various judgments of the
courts recognizing the right to compensation for violations of "Fundamental
Rights" by state and its "instrumentalities". The idea was that by being the
victim of a crime, the victim's "Fundamental Rights" (particularly those under
Articles 14 and 21) is getting violated as the state is neither able to
protect the victim from crime nor rehabilitate her.
With the present ideas establishing a "distinction" between "civil" and
"criminal" law, in which "civil law" provides for remedies to award
"compensation" for "private wrongs" and "criminal law" is responsible for
punishing the wrongdoer, the legal position that emerged until recently was that
criminal law did not need to be concerned with compensation to victims because
compensation was a civil remedy that fell under the jurisdiction of "civil
courts". This traditional viewpoint has undergone a significant shift in recent
years, as communities throughout the world have increasingly believed that
victims of crimes are being disregarded.
As a result, legislation has been passed in several countries, including
"Canada", "England", "New Zealand", providing for restitution/reparation by
criminal justice courts. The "Criminal Injuries Compensation Scheme 1964, is
arguably the first to establish a distinct "statutory" scheme for "victim
compensation" by the state.
It was in the context of such developments that the Code was amended to provide
the victim with a right to compensation. The 2008 revisions to the Code focused
largely on the "rights of victims" in criminal cases, particularly those
involving "sexual offences". Though the 2008 amendments did not change Section
357, they did add Section 357-A, which allows the Court to order the State to
pay "compensation" to the "victim" if the compensation awarded under Section 357
is insufficient for rehabilitation or if the case ends in acquittal or discharge
and the victim must be rehabilitated.
Even if the accused is not convicted, but the victim requires rehabilitation,
the victim may obtain compensation from the State or "District Legal Services
Authority" under this clause. Further, it also provides for provision for "free
and immediate medical facility" to the victim.
However, the provisions give a wide discretion to the "District Legal Services
Authority" and the courts without specifying any guidelines for such
disbursement. This element of awarding "compensation to crime victims" comes up
very often, and there are various judgments on this. The same may require some
elaboration in order to bring to light certain factors that need to be addressed
by the courts through proper guidelines. However even the Supreme Court has
accepted that the area has remained unclear and disregarded by courts at various
levels in this country notwithstanding numerous judicial pronouncements.
In light of these difficulties, the sections 357B and 357C were introduced in
the Code. With the said amendments, the victims of certain crimes were given
a right to compensation "in addition to fines". The state has to mandatorily
provide the victims with compensation as the clause uses the term "shall".
The offences mostly include that of "rape", "acid attack" and other such
offences. The other section provides for immediate medical care to such
Although the ideas of restorative justice were traditionally embedded in the "Indian
" of conducting political and governmental activities, with the arrival
of British laws they got diluted in favour of a model of retributive justice.
From a system where victim was an integral part of overall process, the victim
was relegated to a mere "witness" who is a passive observer of the whole
process. Even the Supreme Court has admitted that a lot needs to be done in the
area of "victim jurisprudence".
Even if substantial development has happened in India on the field of "victim
justice" i.e. system where victim and her care is considered to be an essential
element of the overall process, we have to go a long way before we can claim
that we have effective participation and rehabilitation of the victim.
Various treaties demand that "member States" treat victims fairly and
respectfully by providing them with "information", "c0onsulting them at
appropriate phases" of the "criminal justice process", ensuring "victim
participation, and ensuring their safety". However, there is, nevertheless,
substantial evidence that "Member States" have only partially implemented
In actuality, the only way for victims to engage in the "criminal justice
system" is through "restorative justice programmes", which is unacceptable.
While restorative justice should be open to individuals who choose to meet with
the offender, victim surveys demonstrate that not all victims want to
participate in mediation and they must be "notified, consulted, and taken
into account" by authorities. Whether the criminal is offered "community
service" instead of mediation or is sentenced to prison, the "only" way for
victims to engage in the "criminal justice system" is through "restorative
- Tony F Marshall, Restorative Justice: An Overview(Great Britain Home
Office 1999) 5.
- Jo Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative
Justice: How much Involvement are Victims Looking For?' (2004) 11
International Review of Victimology 259.
- D Van Ness and KH Strong, Restoring Justice (2nd edn, Anderson
- Tony (n 1).
- The Code of Criminal Procedure (Amendment) Act 2008; The Criminal Law
(Amendment) Act 2013.
- R Thilagaraj and Jianhong Liu, Restorative Justice in India (Springer
- Akanksha Marwah, Restorative Justice And Reformation Of Offenders
(2020)ILI Law Review159
- Akanksha Marwah, Restorative Justice And Reformation Of Offenders
(2020)ILI Law Review 160
- Akanksha Marwah, 'Restorative Justice and Reformation of
Offenders'(2020)ILI Law Review 165.
- Sanjeev Nanda v The State Crl Appeal No 807/2008
- 146 (2008) DLT 497
- State of Gujarat v Raghav Bhai Vashrambhai and Others (2003) 1 GLR 205.
- AIR 2015 SC 1124.
- AIR (1934) PC 105
- The Constitution of India 1949, Art 226
- Ajay Pal Singh, 'Restorative Justice and the Legal System: An Indian
Perspective' (2021) 23 Supremo Amicus .
- Jonathan Doak, 'Victims' Rights in Criminal Trials: Prospects for
Participation' (2005) 32(2) Journal of Law and Society 294.
- John Braithwaite, 'Restorative Justice and De-Professionalization'
(2004) 13(1) The Good Society 28.
- Jo-Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative
Justice: How Much Involvement are Victims Looking For?' (2004) 11
International Review of Victimology, 259.
- The Code of Criminal Procedure (Amendment) Act 2008.
- The Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power  Resolution No 40/34.
- Rekha Murarka v State of West Bengal Criminal Appeal No 1727 of 2019.
- The Code of Criminal Procedure 1973, s 372.
- Parvinder Kansal v State of NCT of Delhi AIR 2020 SC 4044.
- The Code of Criminal Procedure 1973, s 357.
- Rudul Shah v State of Bihar AIR 1983 SC 1086; Nilabati Behera v State of
Orissa (1993) 2 SCC 746.
- The Constitution of India 1949.
- The Code of Criminal Procedure 1973, s 357A(6).
- Ankush Shivaji Gaikwad v State of Maharashtra (2013) 6 SCC 770.
- The Criminal Law (Amendment) Act 2013.
- The Code of Criminal Procedure 1973, s 357B
- Rattan Singh v State of Punjab AIR 1980 SC 84, per Justice Krishna Iyer.
- The UN Declaration on Basic Principles of Justice for Victims of Crime
and Abuse of Power 19985.
- Jo Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative
Justice: How much Involvement are Victims Looking For?' (2004) 11
International Review of Victimology 259.
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