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EXPLORING THE SCOPE AND CHALLENGES OF RESTORATIVE JUSTICE IN INDIA
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EXPLORING
THE SCOPE AND CHALLENGES OF RESTORATIVE JUSTICE IN INDIA
AUTHORED BY
- ARZOO KEDIA
Abstract
This article delves into the role of
restorative justice (RJ) in the Indian criminal justice system, focusing on how
it involves and satisfies victims. This approach to delivering justice views
crime as not only the violation of law but of relationships, aiming to mend the
damage, lower repeat offenses, and compensate victims. This article also
explores various models of Restorative Justice practices worldwide,
acknowledging their success, and then compares them with contemporary and
traditional methods of India like the Panchayat system, Lok Adalat, and the
Arbitration and Conciliation Act. It raises concern about the shortcomings of
India's current system, especially the role of victims, the complexities of
procedures, and the socio-cultural barriers that prevent effective support for
victims. The article also examines the restorative aspects of the Juvenile
Justice Act and how it is integrated in criminal law, including plea
bargaining, victim compensation, and probation. The analysis discusses the
feasibility and challenges of adopting Restorative Justice in India, especially
for crimes like sexual assault and ensuring fair justice across different socio-economic
backgrounds. The conclusion emphasizes that while RJ is a promising alternative
to punishment, it needs careful implementation to avoid further traumatizing
victims and to ensure their needs are met. The study ultimately calls for a
balanced approach that blends traditional and restorative justice practices to
better support victims and create a more compassionate and effective criminal
justice system.
Introduction
Crime, when viewed with respect to law and order, represents a
violation of the code. However, restorative justice offers a different
perspective, seeing crime as a violation of relationships.[1]
Instead of just punishing offenders through punitive measures, this approach
focuses on repairing the damage done, reducing reoffending, and compensating
the victim. It aims to meet the needs of all parties affected by the crime,
including primary and secondary victims, the state, and the community, while
also emphasizing the rehabilitation of offenders to prevent recidivism and
support their reintegration into society.
In India,
the criminal justice system is often criticized for ignoring victims' needs.
The recent Pune car crash, where a minor drove under the influence and received
a seemingly lenient punishment of writing a 300-word essay, highlights concerns
about the role of the victim in the justice process.[2] Restorative
justice methods, such as dialogue between victims and offenders, conferencing,
and forming restorative cycles, are suggested as alternatives to address these shortcomings.
This article explores the position of victims in the current legal and social
framework of India and aims to understand whether the practice of Restorative
Justice will work as a suitable alternative to increase victim participation
and satisfaction in the criminal justice system.
Restorative Justice: A Global Perspective
Restorative
justice (hereinafter referred to as "RJ") is implemented worldwide in
different formats, yet the primary goal remains unchanged: to engage victims
and offenders in a conciliatory process where they can discuss the offence, its
repercussions, and avenues for mutual progression. This solution-oriented
approach contrasts with the punitive nature of traditional criminal justice
systems, providing benefits to both parties. RJ, as a modern reform for mass incarceration and
victim satisfaction, is being widely integrated into the criminal justice
system around the globe. It has been historically practiced by various tribes,
a few examples of which being collective responsibility among the Maori tribes
of New Zealand[3],
traditional courts and community involvement among the Vhavenda tribes of
Africa[4], and
Circle Sentencing for the Indigenous communities of Canada[5],
but there has been a widespread phenomenon where it is being formally
recognised by governments as an alternative to retributive systems. Countries
like Canada, Australia, and New Zealand have been successful in developing a
model for RJ that serves its purpose of reducing recidivism rates and making
the justice delivery process more victim-friendly. The Youth Criminal Justice
Act[6]
and the Restorative Justice Program in Canada, along with the Youth Court Act[7]
and the Restorative Justice Scheme in New Zealand, have attracted great
response and decreased recidivism rates among youth offenders. One notable
aspect is that in Canada, 46.1% of the cases which were referred to RJ did not
require face to face meeting of victim of offender but participation without
contact.[8] India
can also adopt this practice to avoid revictimization when practicing
restorative process. Likewise, Australia's National Framework for Restorative
Practices and the National Indigenous Restorative Justice Program have
successfully fostered social cohesion between Indigenous communities and mainstream
society.[9]
Restorative
Justice in India: Current Framework and Practices
India has also started incorporating
elements of restorative justice into its legal system, albeit in a less comprehensive
way. The current systems such as the Panchayat system, Lok Adalat, and
different forms of arbitration include some aspects of restorative principles.
These methods strive to settle disputes amicably and include community
involvement, aligning with the fundamental principles of restorative justice.
This section delves into the functionality of these traditional and
contemporary practices within India's legal framework and their potential for
wider implementation.
·
Panchayat System and its History of Self-Righteousness
Due to developments in social and
economic realms, traditional Panchayats have lost effectiveness and relevance,
yet they persist in rural and tribal regions of India, particularly among
Scheduled Tribes (STs) and Backward Classes (BCs), dealing with social and
caste matters. However, it has been observed that the decisions passed by such caste
or khap panchayats are often disproportionate and backwards. Khap Panchayats
have been declared unlawful by the Supreme Court for this reason. In 2010, the
Supreme Court in Mahendra Nath Yadav v. Sheela Devi ruled that verdicts issued
by village panchayats concerning the personal lives of couples hold no legal
validity, regardless of local community acceptance of such decisions.[10]
However, even after the direction of the Supreme Court to discontinue these
gatherings, a lot of caste and community panchayats are rampant in the country
and passing decisions or diktats on the personal lives of members on
self-righteous beliefs.[11] These
panchayats are usually referred to for personal matters like land inheritance
disputes or marital disputes, the members of communities find it more
convenient to refer these matters to the authorised elders of their community
instead of seeking legal recourse as their first resort. The decisions of these
baithaks are considered to be binding on the members and the sanctioning
for disobedience includes outcasting of members from their caste or
communities.[12] While
the court has passed the decision to put a halt to this system, much needs to
be done to actually ensure the implementation of the court’s will. One of the
reasons why people tend to seek the help of these panchayats instead of taking
legal recourse is because of the simplicity of this process, a lot of the
population still holds the perspective that the judicial process is cumbersome.
Additionally, court cases have a propensity to take a long duration to get
disposed of and when matters are of a personal nature such as matrimonial or
long disputes, people tend to be especially impatient. Lok Adalat[13] is
one such attempt to tackle this problem and deliver speedier justice.
·
Lok Adalat
The Legal
Services Authorities Act of 1987 gives "Lok Adalat," sometimes known
as the "People's Court," its legal standing.[14] Lok
Adalats operates as a non-adversarial approach where various legal entities
conduct simulated courts to handle specific jurisdictions. Cases are referred
to Lok Adalats upon petition by one party, and settlements are prioritized. If
no agreement is reached, the case returns to court;[15]
however, a settlement in Lok Adalat results in a legally binding decision based
on mutual consent, akin to civil court judgments. These proceedings are
judicial, akin to civil courts, and effective in settling various disputes,
including financial, landlord-tenant, motor vehicle accidents, and matrimonial
cases.
The
"Lok Adalat" is seen as a democratic success, providing
cost-effective local justice by professionals close to the conflict. It
embodies justice and fairness through compromise, balancing restorative
practices. However, it is essential to ensure that the rights and interests of
all parties are not sacrificed for the sake of speedy justice,[16] as
it is rightly said that “Justice delayed is a Justice denied but Justice
hurried is Justice buried”. There have been instances where it was observed
that people prefer the traditional court system and pressurise their lawyers to
stick to the same, and sometimes even lawyers are not willing to give up the
cases to Lok Adalat for resolution. This might be a reflection of how the
country still might not be entirely ready for Restorative Practices, so for it
to be implemented successfully, awareness for the same needs to be expanded so
that the confidence of the public can be gained.
·
The Arbitration and Conciliation Act
The
Arbitration and Conciliation Act of 1996[17] provides
frameworks for resolving disputes via arbitration, mediation, and conciliation.
This enables parties to engage in friendly resolution of disputes. These
methods are gaining traction for handling disputes related to contracts and
partnerships. Moreover, mediation centers set up by courts across India aim to
expedite case resolutions by aiding parties in promptly reaching agreements
independently.
·
Restorative Justice in Juvenile Law
"The
Juvenile Justice (Care and Protection) Act 2015”[18] is
based on the philosophy of Restorative Justice. The act provides alternative
sanctions such as counseling, community service, fines, probation for good
behavior, and placement in reformative facilities. The Act empowers the Board
to require a child's attendance at school, vocational training centers, or
therapeutic facilities, or impose restrictions on accessing specific locations.
These measures align with international standards promoting offender
reintegration through diversion techniques.
The Act
categorizes offenses as petty, serious, and heinous. For petty and serious
offenses, children may learn about victims' "sufferings," aiding
their understanding of consequences and the importance of making amends,
fostering their reformation. For initial infractions, spontaneous actions,
necessity, or legal defences, restorative measures can replace penalties, even
minor ones.
The Act
provides for the creation of Juvenile Justice Boards in every district to
ensure that the principle of RJ is being followed, however, due to a lack of
clarity in the functioning of these boards, the intention of the act is not
being entirely fulfilled. There is also a want for proper infrastructure and
training for these boards to function adequately.
Incorporation of Restorative Principles in Criminal Law
The
procedural criminal law of India has some provisions that are based on the
principles of restorative justice, the three new criminal law acts aim to shift
towards a reformative justice system by incorporating community service as an
alternative to imprisonment. However, the criminal justice system largely
maintains its existing punitive nature. Following are some provisions in the
Criminal Law where the principle of RJ has been maintained:
Plea
Bargaining
Plea
bargaining is a process where a defendant agrees to confess to a lesser offense
or accept a reduced penalty in exchange for concessions from the prosecutor or
court. Section 290 of the Bhartiya Nyaya Suraksha Sanhitha outlines the
provisions for 'Plea Bargaining.'[19]
This
process saves time for the prosecution, which would otherwise be spent on
proving allegations, and helps both parties avoid lengthy legal proceedings. Additionally,
the offender benefits from a reduced sentence upon admitting guilt, compared to
the potentially harsher punishment that might result from a lengthy trial.
Victim Compensation
A court
order requires compensation for the victim, specifying that when the court
assigns a "fine" as the designated "punishment" for an
offense, it may direct the fine to be paid to the victim to cover prosecution
costs or as reparation for the victim's losses resulting from the offense. Compensation
is applicable to both property crimes and crimes against individuals.
Furthermore, according to Section 396 of the Bhartiya Nyaya Suraksha Sanhita, every
"State Government," in collaboration with the "Central
Government," must establish a "scheme providing funds for
compensation to victims/dependents" who have experienced loss/injury from
a crime and require rehabilitation.[20]
Probation
Section
401 of the Bharatiya Nyaya Sanhita gives the court authority to release an
offender on probation upon demonstrating good conduct or after receiving a
warning and being directed to maintain good behavior.
Current Position of Victims in the Criminal Justice System
The Indian Criminal Justice system is
frequently criticized for marginalizing victims in criminal proceedings.[21]
Nonetheless, recent years have seen efforts to make the system more
accommodating to victims, driven by International Covenants on Victim Rights,
proactive judicial actions, and numerous law commission reports. The
introduction of three new criminal laws aims to foster a more victim-centric
approach by implementing provisions for zero FIR[22]
and enhancing the framework for disseminating information to victims[23],
among other measures.
Despite these efforts, there are
several institutional issues that still needs major reforms:
·
Victim's
Right to Appeal: The victim’s right to appeal is restricted by specific
conditions, preventing them from seeking redress in various situations, such as
appealing on the grounds of inadequate sentencing.
·
Limitations
on Victim’s Counsel: In Rekha Murarka v. State of WB,[24]
the constraints on the victim’s counsel prohibit the victim’s advocate from
conducting a parallel prosecution, indirectly affecting the victim's ability to
appeal by emphasizing the secondary role of the victim’s counsel.
·
Victim
Compensation: Although section 357A of CrPC ensures victim compensation even if
the accused is not convicted, the process for obtaining compensation is
complicated and rigid.
·
Practical
Challenges: Victims often face significant legal complexities and financial
burdens when filing an appeal. Judicial delays further discourage them from
pursuing their rights.
·
Insensitivity
and Bias: Victims frequently feel ignored and disregarded by law enforcement
and judicial authorities, leading to re-traumatization and a lack of trust in
the system, as highlighted in a joint report by the Women’s Rights Initiative
and the International Centre for Research on Women.
·
Lack
of Information, Support, and Protection: Inadequate support services and the
absence of comprehensive victim protection measures, such as witness protection
programs, leave victims vulnerable to intimidation and harm.
It is evident through the brief
breakdown above that victims in the country still face several hurdles, both
legal and social, when it comes to obtaining justice. There are still no
provisions in place to encourage offenders to take responsibility and help
restore victims to their original state. In contrast, some jurisdictions
provide broader rights to victims. For example, the European Union’s Directive
2012/29/EU establishes minimum standards on the rights, support, and protection
of victims, ensuring a more comprehensive right to appeal.
Will
Restorative Justice truly serve “Justice”?
Despite significant progress in India
regarding "victim justice," where the victim and their care are
considered crucial to the overall process, much remains to be done to achieve
effective participation and rehabilitation of the victim. In the current
scenario, where victims are treated as secondary parties in proceedings, it is
inaccurate to claim that restorative justice is an appropriate solution. Although
restorative justice should be an option for those who opt to engage with the
offender, surveys
conducted with victims suggest that not every victim wishes to engage in
mediation.[25] Authorities
must ensure victims are "notified, consulted, and taken into
account." Given the various divisions such as class, caste, religion, and
gender in India, it would not be entirely incorrect to assume that victims
might be deprived of this choice. Consequently, restorative justice has the
potential to be skewed in favour of the privileged, becoming another tool for
them to evade the law. The principle of RJ is incorporated in the Juvenile
Justice (Care and Protection) Act, 2015, but the applicability of the process
lacks clarity, therefore resulting in incidents like the Pune Porsche accident,
where the offender was initially let off with a punishment to write a
three-hundred-word essay, highlight the sentiment that “there’s one law for the
rich and another for the poor.”[26]
Moreover, the absence of formal
victimization surveys in India has created a significant gap in understanding
victims' expectations and frustrations with the justice delivery system.
Surveys carried out in the United
Kingdom, the United States, and New Zealand show that the majority of victims
favour facing their offenders and seeking compensation or negotiating an
agreement without a direct confrontation.[27] Hence,
it is crucial to ascertain whether sexual assault survivors in India would opt
for such an alternative or parallel procedure instead of the criminal trial, a
feminist legal strategy would prompt women to talk about their encounters with
the official trial system and how it has either empowered or disadvantaged them.
Meanwhile, it can be examined as an option following conviction for victims
dissatisfied with formal criminal penalties and for juvenile offenders as part
of their rehabilitation.
Restorative justice offers an
alternative approach to addressing crimes, however, it is inadequate for
maintaining law and order and addressing the complex issues related to crime.[28] Restorative
justice cannot serve as a replacement for the existing criminal justice system.
However, it could potentially act as a catalyst, either before or after legal
proceedings, to ensure a certain level of satisfaction for victims. Therefore,
for the foreseeable future, a combination of both approaches will likely be
necessary unless society progresses significantly to involve victims more
directly in crucial criminal justice matters. This is particularly relevant in
underdeveloped and emerging communities, where victim-blaming remains
prevalent. Changing people's mindsets takes time and requires societal and
educational reforms. Until such changes occur, it is prudent to prioritize the
best interests of both society and victims collectively. Consequently,
restorative justice should not be viewed as a substitute for incarceration but
can complement a prison sentence. Additionally, it is not solely about
forgiveness or reconciliation but provides a platform where these elements,
among others, can potentially take place.
It is also crucial when using
restorative justice methods to handle cases with great care and sensitivity,
given the vulnerable position of victims. It should be ensured that while
practicing methods like mediation, the victim is empowered and gaining back
control by having given the power to accept or reject an apology, and not being
re-traumatised by the process or being pressured into acting against her will.
This is extremely relevant in cases of sexual assault where a significant
number of cases involve the perpetrators being someone known to the victim.
Therefore, proper infrastructure needs to be developed first by the state so
that the psychological closure of the victims can be achieved without any
external pressure corrupting their decision. Recruitment of trained mediators
and the creation of a controlled and unbiased environment are preliminary
requirements for such practices to succeed.
Conclusion
For approaches like restorative
justice to be effective, the criminal justice system must prioritize the
victim's role in proceedings. This starts with eliminating biases and
acknowledging the unique needs of victims. The recent criminal bill fell short
in this regard as it overlooked the possibility of males being victims of
sexual assault. In a society where prevailing views of masculinity often lead
to the neglect of male victims, such oversight in the law is a significant
setback.
In summary, policies centered around
victims are crucial to ensure the delivery of justice, adequate support and
care for victims, and a more empathetic criminal justice system. There is a
pressing need to invest in victim support systems nationwide, including
provisions for legal assistance, medical attention, and counseling services, to
foster trust in the criminal justice process. The government should also
intensify public awareness efforts and target specific groups requiring support
and care. It is imperative to prioritize the voices of victims, empower them,
and safeguard their rights. Only then can we truly ensure that the criminal
justice system operates in the best interests of those it serves.
[1] Debra Heath-Thorton, ‘Restorative
Justice’ (Law, Conflict Resolution & Victim Empowerment, Britannica,
31 May 2016) < https://www.britannica.com/topic/restorative-justice>
accessed 25 June 2024
[2] Prabhakar Jha, ‘Pune Porsche
accident: Rs 48k booze, 300-word essay, rich dad and a political slugfest’ Times
of India (India, 22 May 2024)
[3] V. E. Jantzi, ‘Restorative Justice
in New Zealand: Current Practise, Future Possibilities’ (2001)
[4] Joshua Mawere & Ndwamato
Walter Tshamano, ‘The Role of African Indigenous Knowledge Systems in Achieving
Restorative Justice among the Vhavenda of South Africa’ in Sanjeet Kumar(ed), Indigenous
people-Traditional Practices and Modern Development (Intech Press 2024)
[5] Ivan Potas and others, ‘Circle
Sentencing in New South Wales: A Review and Evaluation’ (2004) 8 AILR < https://www.jstor.org/stable/26452472>
accessed 25 June 2024
[6] Youth Criminal Justice Act 2003
(Canada)
[7] Oranga Tamariki Act 1989 (New
Zealand)
[8] Federal-Provincial-Territorial
Working Group on Restorative Justice, ‘Increasing the use of Restorative
Justice inn Criminal Matters in Canada- Base Report’
[9] Jessica Pika, 'Honoring the Global
Indigenous Roots of Restorative Justice: Potential Restorative Approaches for
Child Welfare' (Center for the Study of Social Policy, 1 Novemebr 2019) <https://cssp.org/2019/11/honoring-the-global-indigenous-roots-of-restorative-justice/>
accessed 25 June 2024.
[10] Mahendra Nath Yadav v. Sheela Devi AIRONLINE
2010 SC 312 (India)
[11] Dr. Maninder Kaur, ‘ Khap
Panchayats: Tentacles of Traditional Institutes’ (Anthropology India Forum, 25
January 2022) <https://www.anthropologyindiaforum.org/post/khap-panchayats-tentacles-of-traditional-institution>accessed
on 25 June 2024
[12] Rajika Chaudhary, ‘Lousy Truth of
Khap Panchayats’ Times of India (India, 22 May 2022)
[13] National Legal Services
Authorities Act 1987 (India)
[14] Idib
[15] NLSA Act 1987, s 20(5)
[16] Manju Gupta V National Insurance
Company (1994) ACC 242 (India)
[17] The Arbitration and Conciliation
Act 1996
[19] Bhartiya Nyaya (Second) Sanhita
2023, s. 290 (India)
[20] Bhartiya Nyaya (Second) Sanhita
2023, s. 396 (India)
[22] Bhartiya Nyaya Suraksha Sanhita
2023, s. 173 (India)
[23] Bhartiya Nyaya Suraksha Sanhita
2023, s. 193 (India)
[24] 2020 (2) SCC 474 (India)
[25] Edna Erez & Pamela
Tontodonato, ‘Victim Participation in Sentencing and Satisfaction with Justice’
(2006) 9 (3) Justice Quarterly
< https://doi.org/10.1080/07418829200091451>
accessed 25 June 2024
[26]Colin Webster, ‘Conclusion:
‘There's One Law for the Rich and Another for the Poor’’, Rich Crime,
Poor Crime: Inequality and the Rule of Law (Emerald Publishing Limited,
2023)
[27] Mary P. Koss, ‘Disposition and
Treatment of Juvenile Sex Offenders from the Perspective of Restorative Justice’
in Howard E. Barbaree & William L. Marshall (eds), Juvenile Sex Offender
(2nd edn, 2006).
[28] Howard Zeher, The little book
of restorative justice (Good Books 2015)
Article Information
EXPLORING THE SCOPE AND CHALLENGES OF RESTORATIVE JUSTICE IN INDIA
Authors: ARZOO KEDIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
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