INTRODUCTION
Restorative justice views crime as more than breaking the law – it also causes harm to people,
relationships, and the community. So a just response must address those harms as well as the
wrongdoing. If the parties are willing, the best way to do this is to help them meet to discuss
those harms and how to about bring resolution. Other approaches are available if they are
unable or unwilling to meet. Sometimes those meetings lead to transformational changes in
their lives The three notions behind the restorative justice (1) repair: crime causes harm and
justice requires repairing that harm; (2) encounter: the best way to determine how to do that is
to have the parties decide together; and (3) transformation: this can cause fundamental
changes in people, relationships and communities.A more formal definition is
this: Restorative Justice is a theory of justice that emphasizes repairing the harm caused by
criminal behavior. It is best accomplished through cooperative processes that allow all
willing stakeholders to meet, although other approaches are available when that is impossible.
This can lead to transformation of people, relationships and communities. The foundational
principles of restorative justice have been summarized as follows1:
1. Crime causes harm and justice should focus on repairing that harm.
2. The people most affected by the crime should be able to participate in its resolution.
3. The responsibility of the government is to maintain order and of the community to
build peace.
1
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justice/lesson-1-what-is-restorative-justice/#sthash.6YzHrkPk.dpbs (visited on 23rd sept, 2017)
HISTORY OF RESTORATIVE JUSTICE
RESTORATIVE JUSTICE IN PAST
Although most people are clearly taught, or socialized, to believe in the moral “rightness” of
retribution, and to some degree in its effectiveness, there is no evidence to suggest that
human beings are innately punitive. Indeed, most speculation is that in early human
communal societies, when someone was harmed by another person(s), the response was
typically some form of group dialogue. This deliberation included consideration of
responsibility for the act, discussion of the nature of the harm, and consideration of
“accountability” based on obligations for the offender (and often his or her family) to make
amends to those harmed2.
These so-called ancephalous (or headless) societies also preferred restitution and other
reparative responses to crime that sought to restore community peace and harmony as an
alternative to “blood feuds,” which generally had devastating consequences for community
life. Moreover, the most highly developed ancient states—those in Egypt, Babylon, China,
Persia, and Greece, as well as Hebrew and Anglo- Saxon societies—devised formal codes
that specified monetary amounts, as well as goods and services, to be paid as restitution and
offered as a means of “repairing the harm” caused by specific actions that would today be
considered as crimes, including even serious and violent offenses3.
In contrast to the view that punishment is an innately human trait, it seems more likely that
humans are “hardwired” for reciprocity and social exchange. When people use the phrase “I
owe you one,” or “You owe me one,” it generally implies that there is an expectation to repay
a debt or good deed that can “make things right” in a different way from individual revenge.
While revenge may be part of the human condition, it may be more accurate to say that it was
collective state punishment, rather than restorative responses that were “invented” (for
Anglo-European cultures, at least) during the Middle Ages. Retributive punishment is
therefore a more recent human “innovation” that essentially formalized the response to
2
Bazemore, G. (2001). Young people, trouble, and crime: Restorative justice as a normative theory of informal
social control and social support. Youth & Society, 33(2), 199–226
3
Bazemore, G., & Schiff, M. (2004). Juvenile justice reform and restorative justice: Guilding theory and policy
from practice. Cullompton, Devon, UK: Willan.
community and individual conflict resolution by designating theft and other offenses as
“crimes” against the king (or the state). Although more commonly employed in some eras
and cultures (e.g., forms of restorative justice never disappeared in many indigenous
societies), reparation and informal settlement processes, as well as formal and informal
restitution and other reparative sanctions (e.g., community service), have nonetheless
persisted at some level alongside retributive punishment throughout Western history4.
RESTORATIVE JUSTICE AT PRESENT
Restorative justice advocates in the modern world, and in the United States in particular, are
nonetheless up against a perception of “justice” as an offender “taking the punishment.” This
narrow retributive perception of justice unfortunately continues to justify and support what
much of the modern world increasingly recognizes as a uniquely American addiction to
punishment. To a large extent, however, what has been a three-decade-long U.S. geometric
increase in imprisonment is more accurately a function of policymaker addiction, which has
in the past decade ushered in an era recently described as a condition of “mass incarceration.”
This state of affairs permeates the existence and defines the future of affected populations,
notably in this case African American males. Indeed, public opinion polls continue to suggest
that, when given alternatives in specific case scenarios, most citizens appear to be less
punitive than politicians and the legislation they develop. Specifically, for the vast majority
of crimes, Americans responding to citizen surveys choose the option of a community-based
alternative sanction that might, in some research, include restitution, community service,
apologies, and victim–offender meetings. While by no means soft on crime, restorative
justice appears to fit well into this growing movement for reform, and with the emerging
dissatisfaction with expanded punishment as the primary response5.
4
http://research-paper.essayempire.com/examples/criminal-justice/restorative-justice-research-paper/(visited on
23rd sept ,2017)
5
Bazemore, G., & Walgrave, L. (Eds.). (1999). Restorative juvenile justice: Repairing the harm of youth crime.
Monsey, NY: Criminal Justice Press.
PRINCIPLES OF RESTORATIVE JUSTICE
The principles provide general normative guidelines for gauging the strength and integrity
(sometimes called the “restorativeness”) of any response to crime and harm. Broad core
principles (as articulated by Van Ness & Strong, 1997) that guide restorative justice practice,
and also suggest independent but mutually reinforcing justice goals, can be stated as follows:
A. The Principle of Repair: Justice requires that healing be enabled for victims, offenders,
and communities that have been injured by crime. The extent to which harm is repaired is
assessed by the degree to which all parties identify the damage of a crime that needs to be
addressed, and develop and carry out a plan to do so6.
B. The Principle of Stakeholder Involvement: Victims, offenders, and communities should
have the opportunity for active involvement in the justice process as early and as fully as
possible. The extent to which effective stakeholder involvement is achieved is assessed by the
degree to which victims, offenders, and individuals from the community affected by a crime
or harmful action are intentionally and actively engaged in decision making about how to
accomplish this repair.
C. The Principle of Transformation in Community and Government Roles and
Relationships: The relative roles and responsibilities of government and community must be
rethought. In promoting justice, government is responsible for preserving a just order, and
community for establishing a just peace. The extent to which the community–government
relationship is transformed in a restorative process is assessed by the degree to which a
response to crime operationalizes a deliberate rethinking and reshaping of the role of the
criminal justice system in relation to that of community members and groups.
While these core principles reflect normative values, they can also be linked to social theories
that should guide practice, and in the long run help to explain why a given intervention, or a
practice implemented over months or years, is successful or not7.
6
Braithwaite, J. (1989). Crime, shame, and reintegration. New York: Cambridge University Press
7
http://research-paper.essayempire.com/examples/criminal-justice/restorative-justice-research-paper/(Visited on
23rd sept, 2017)
VALUES INVOLVED IN RESTORATIVE JUSTICE
The first normative value is a peaceful social life. Peace means more than the absence of
open conflict. It includes concepts of harmony, contentment, security, and wellbeing that
exist in a community at peace with itself and with its members. When conflict occurs, it is
addressed in such a way that peaceful social life is restored and strengthened. Two
operational values help achieve peaceful social life. One is resolution, meaning the people are
cared for and the issues surrounding conflict and its aftermath are addressed as completely as
possible. The second is protection, which means that the physical and emotional safety of
affected parties is a primary consideration.
The second normative value is respect. All people are treated as worthy of consideration,
recognition, care and attention simply because they are people. The operational values that
encourage respect are inclusion and empowerment. The parties are invited to directly shape
and engage in restorative processes and are equipped to effectively influence and participate
in the response to the offence.
The third normative values is solidarity. This refers to the feeling of agreement, support, and
connectedness among members of a group or community. It grows out of their shared
interests, purposes, sympathies, and responsibilities. Three operational values that build
solidarity are encounter (parties are invited, but not compelled, to participate in making
decisions about how to respond to the offence), assistance (parties are helped to become
contributing members of their communities in the aftermath of the offence), and moral
education (community standards are reinforced as the values and norms of the parties, their
communities, and their societies)8.
The final normative value is active reponsibility. This can be contrasted with passive
responsibility, which means being held accountable by others. Active responsibility arises
from within a person; passive responsibility is imposed from outside the person. Two
operational values contribute to development of active responsibility. One is collaboration, in
which the parties are invited to find solutions through mutual, consensual decision-making.
8
The principles and values of restorative justice adhere most on the promotion of repair, restoration;
reconciliation and; reintegration. Also see Howard Zehr (2002), The Little Book of Restorative Justice, USA:
Good Books, p-31.
The second is making amends, which means that those responsible for the harm caused by the
offence are also responsible for taking steps to repair it9.
IMPLEMENTATIONS ISSUED INVOLVED
Designing and maintaining a restorative system of justice requires addressing a number of
issues, including the following:
Building Support. It is necessary to promote the vision of restorative justice while
responding progmatic to systemic and political realities.
Co-option or Co-existence. Restorative justice programs are susceptible to the
distorting influences of the traditional system.
Diversion or Net-Widening. Restorative justice has the potential to reduce the caseload
of traditional criminal justice, but might instead expand the net of social control by
accepting cases that the criminal justice system would have otherwise ignored.
Evaluation. Programs called "restorative" may not reflect a restorative vision and
values. Evaluation using the right criteria will help programs become more restorative
in their treatment of victims, offenders and community members10.
PERSONS INVOLVED
The problem of crime is of course much larger and more complex than the problem of the
offender. Yet, criminal justice policy is in essence an offender-driven response, narrowly
focused on arresting and processing lawbreakers. The principle of stakeholder involvement
places a priority on engaging those most affected by crime—victim, community, and
offender—in the justice process, and on the quality of this engagement. It also suggests an
emphasis on the needs of key stakeholders and their obligations. Such needs are often
different for each individual participant in the justice process and may vary in unpredictable
ways—hence, the need for a meaningful, respectful engagement process that presumes
multiple choices based on research and practice. Based on research and practice experience, it
9
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justice/lesson-2-values/#sthash.gn0utd4w.dpbs (Visited on 23rd sept,2017)
10
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-
justice/lesson-5-implementation-issues/#sthash.tBnX9F7l.dpbs (Visited on 24th sept, 2017)
is possible, however, to describe general needs that have become quite common for each
stakeholder in a crime or conflict.
VICTIMS NEED
Many victims say that they often become most angry with the criminal justice system itself—
with its delays, reluctance to share information, and often disrespectful treatment. Victims
need first of all to be provided with information about their cases. They also may want, and
demand, their “day in court” and to participate in their case, but many say that the adversarial
process itself is a source of great trauma on some occasions. Indeed, as Judith Herman (2000)
puts it, “If you set out to create a system to generate post-traumatic stress, you couldn’t do
better than a court of law.” Thus, victims often prefer an informal process where their views
count, such as the process offered by a range of restorative justice practices. Victims also
want more information about the processing and outcome of their cases, answers to their
questions (e.g., about why they were chosen by the offender), “truth telling,” and vindication.
Such vindication has nothing to do with “vindictiveness,” and the latter term, or terms such as
“angry victims,” are often insulting to those harmed by crime. Rather, vindication is often
about the need for the offender to express—to the victim and others—responsibility for the
crime, and to make clear to everyone (and remove doubts that some victims have) that the
crime was (if this is true) not a deliberate act by the offender toward this victim, and not the
result of provocation or negligence on the victim’s part11.
OFFENDORS NEED
Traditionally, offender needs when addressed at all in a nonpunitive way have focused
primarily on treatment. While most citizens—including those who have been victims—
support rehabilitation for offenders, the legitimate portion of public anger about the criminal
justice system is based on the view that most offenders are not held accountable. Most
offenders are never incarcerated, and thus are perceived as receiving a “slap on the wrist.”
Moreover, serving time—taking one’s punishment—is in no real way related to being
accountable, or taking responsibility for, the harm an offender causes to his or her victims
(and in some cases, it may even encourage anger toward the victim). Greater understanding
11
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(Visited on 24th sept ,2017)
by the public and by victims, as well as justice itself, therefore requires that offenders be
meaningfully held accountable for what they have done.
Rather than simply “taking their punishment” or completing treatment, offenders then need
the opportunity to take responsibility for the harm caused by their behavior to victims. They
need to take action to repair the harm and to have a voice in the decision-making process
about how this is accomplished. Facing their victim(s) in a restorative justice process
provides a rare opportunity to also develop empathy and remorse—two factors strongly
related to a reduced probability of reoffending—while also having input into the process.
Offenders then take action to repair harm by making amends through apologies, community
or victim service, restitution, and so on. Offenders also need support for reintegration into
their communities. Juvenile offenders in particular need opportunities to build a range of
assets, skills, and competencies, and they need an opportunity to practice and demonstrate
these. Young offenders need also to develop positive relationships with prosocial adults12.
COMMUNITY NEED
The need for transformation of the community/ government role and relationship in the
response to crime suggested by the third restorative principle is consistent with more macro
theories of social capital and informal social control. The theory and principle are best
operationalized when participants in a restorative process (and their support groups,
neighborhoods, and organizations) engage in “norm affirmation,” or values clarification and,
in doing so, strengthen networks of support based on trust and reciprocity. These networks
then form the basis for building common skills of informal social control and mutual support,
and finally developing the commitment needed to exercise these skills as suggested by the
theory of collective efficacy13.
Another phase or dimension of community building noted in field observation of restorative
processes, referred to as collective ownership, appears to emerge in restorative conferences
when participants begin to take responsibility both for the case at hand, and for some of the
larger local problems it exemplifies. This collective ownership may then impact willingness
12
Maruna, S. (2001). Making good: How ex-convicts reform and rebuild their lives.Washington, DC:American
Psychological Association.
13
McKnight, J. (1995). The careless society: Community and its counterfeits. New York: Basic Books.
to take action in informal control and support based on a theory of civic engagement. The
latter theory also suggests that offenders who make such a commitment, and follow through
in the process of giving back by visibly making amends to their communities, are thereby
able to demonstrate their value as productive citizens with something to offer to the well-
being of others14.
BENEFITS OF RESTORATIVE JUSTICE
It substantially reduces repeat offending for some offenders, although not all,
It reduces repeat offending more than prison for adults and at least as well as prison for
youths,
It doubles (or more) the offences brought to justice as diversions from criminal justice,
When used as a diversion it helps reduce the costs of criminal justice,
It provides both victims and offenders with more satisfaction that justice had been done
than did traditional criminal justice,
It reduces crime victims' post-traumatic stress symptoms and the related costs, and
It reduces crime victims' desire for violent revenge against their offenders15.
CONCEPTUAL ISSUES INVOLVED
Rights and responsibilities. The traditional criminal justice system defines and seeks
to protect individuals' rights through formal, adversarial processes. Restorative justice
places a high value on individuals voluntarily assuming responsibilities and seeking to
resolve conflict through informal processes.
Norm clarification. Criminal justice clarifies and upholds norms through enforcement
of laws. Restorative justice relies more on conversations about norms in the context of
specific instances of wrongdoing and the resulting harm.
Fairness. Criminal justice seeks fairness through procedural protections. Restorative
justice focuses on satisfaction of the parties that justice was achieved.
14
Maxwell, G., & Morris, A. (1993). Family participation, cultural diversity and victim involvement in youth
justice: A New Zealand experiment.Wellington, New Zealand:Victoria University.
15
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-
justice/lesson-6-benefits-of-restorative-justice/#sthash.ofcBvqM0.dpbs (Accessed on 24th sept,2017)
Discretion. Criminal justice gives a great deal of discretion to police, prosecutors and
judges to decide how cases should be handled. Restorative justice seeks to be guided
by the interests and desires of the parties.
Due process. How does restorative justice provide due process protections to the
parties, particularly rights such as the presumption of innocence, the right to a fair trial
and protection against coercion, and the right to assistance of counsel.
Equal protection. What assurances are there that restorative justice program can even-
handedly administer justice without regard to race, gender, religion, national origin,
social standing, etc.
Victims' rights. Are the interests of victims better met in restorative or traditional
criminal justice processes? How are those rights balanced against the rights of those
accused or convicted of commiting crimes against them?
Proportionality. A principle of criminal justice is that similar offenses deserve similar
punishments. How important is that in restorative program16.
RESTORATIVE JUSTICE IN INDIA
The Restorative Justice System and its practices are of great relevance in India. As one
of the major benefits of such programs is its potential for flexibility i.e. it can he
adapted according to the needs of particular communities. Otherwise also, it is about
having the capacity to change even before the case for changes becomes obvious. But
in the case of having to deal more effectively with crime, the case for change is staring
us in the face. Therefore, we should explore a paradigm shift from a Retributive Justice
System to a system in which there is a balance between Restorative and Retributive
Justice. The various heads of restorative justice are :
1. Panchayati Raj system
The Indian heritage has much testimony to offer that its socio-cultural fabric contains
intrinsic mechanism to bring the conflicting people together and settle their dispute in a
highly informal manner. The Panchayati Raj System and other social groups for
instance, in the countryside have been an effective source to dispense justice. The
verdict delivered by these bodies is by and large acceptable to everybody. The interests
of the victims are considered to be supreme. Many times the offenders are directed to
compensate or restore the harm done to the victims. To encourage this practice, the
16
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justice/lesson-4-conceptual-issues/#sthash.wuCdGA2H.dpbs (Visited on 24 sept,2017)
Law Commission of India in its 114th report on “Gram Nyayalaya”, keeping in mind
the first and foremost objective of reviewing the system of judicial administration to
ensure that it is responsive to the reasonable demands of the times and in particular to
secure17. Elimination of delays, speedy clearance of arrears and reduction in costs so as
to secure quick and economical disposal of cases without affecting the cardinal
principle that decision should be just and fair. Simplification of procedure and
elimination of technicalities.
2. Criminal justice system
The idea of restorative justice is not alien to the Indian Criminal Justice.Examples of
restorative justice can be seen in various Indian legislations and in the Constitution as well.
Some important hallmark provisions are mentioned herein:-
ARTICLE 141 OF THE INDIAN CONSTITUTION ARTICLE 141 OF THE INDIAN
CONSTITUTION TITUTION The State shall, within the limits of its economic capacity and
development, make suitable provision for securing the right towards, education and to public
assistance in case of unemployment, old age, sickness and disablement, and in other cases of
undeserved want.
SECTION 357 OF CRIMINAL PROCEDURE CODE, 1973 SECTION 357 OF CRIMINAL
PROCEDURE CODE, 1973 Sec. 357 states that when a Court imposes a sentence of fine or a
sentence (including a sentence of death) of which fine forms a part, the Court may, when
passing judgment, order the whole or any part of the fine recovered to be applied to pay
compensation to the victim or any other related function.
SECTION 358 OF CRIMINAL PROCEDURE CODE, 1973 :Section 358 deals with
Compensation to persons groundlessly arrested.
SECTION 359 OF THE CRIMINAL PROCEDURE CODE, 1973 :Section 359 deals with
Order to pay costs in non-cognizable cases18.
17
George Mathew, (1994), Panchayati Raj from Legislation to Movement, New Delhi: Concept Publishing, p-
33.
18
http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter%204.pdf? (Visited on 24 sept,2017)
3. Child abuse
CONSTITUIONAL SUPPORT TO VICTIM OF CHILD ABUSE IN INDIA The
Constitution of India recognizes the vulnerable position of children and their right to
protection. Following the doctrine of protective discrimination, it guarantees in Article
15 special attention to children through necessary and special laws and policies that
safeguard their rights. The right to equality, protection of life and personal liberty and
the right against exploitation are enshrined in Articles 14, 15, 15(3), 21, 21(A), 23, 24,
39(e) 39(f) and reiterate India's commitment to the protection, safety, security and
well-being of all people, including children19
. Article 15 (3): Nothing in this article shall prevent the State from making any special
provision for women and children;
Article 21: Protection of life and personal liberty -- No person shall be deprived of his
life or personal liberty except according to procedure established by law;
Article 21A: Free and compulsory education for all children of the age of 6 to 14
years;
Article 23: Prohibition of traffic in human beings and forced labour- (1) Traffic in
human beings and beggars and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with
law;
Article 24: Prohibition of employment of children in factories, etc. -- No child below
14 years of age shall be employed to work in any factory or mine or any other
hazardous employment;
NATIONAL LEGISLATION FOR PROTECTION OF CHILDREN Some of the
important legislations are discussed below. Under each Act relevant sections have been
enumerated:
THE INDIAN PENAL CODE, 1860
1) Foeticide (Sections 315 and 316)
2) Infanticide (Section 315)
3) Abetment of Suicide: Abetment to commit suicide of minor (S.305)
4) Exposure and Abandonment: Crime against children by parents or others to expose
or to leave them with the intention of abandonement, sec 317
5) Selling of girls for prostitution (Section 372)
19
http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter%204.pdf (Visited on 24 sept,2017)
6) Buying of girls for prostitution (Section 373)
7) Rape (Section 376)
CONCLUSION
There are multiple conceptions of restorative justice. For some, its essence lies in encounters,
the restorative processes in which parties may find healing. For others, it is a view of justice
that insists that the harm caused by crime be repaired to the extent possible. For still others, it
is a way of living that transforms relationships with others and with the social and physical
environment. We hold to the reparative conception with the understanding that repair is best
accomplished when the parties themselves participate cooperatively in determining how that
should be done .The ultimate approach of restorative justice system is to hold offenders
accountable in meaningful and constructive ways, can contribute to a more satisfying
experience of justice for victims and communities. Both victims and offenders have high
levels of satisfaction with the process and the outcomes. It is suggested that offenders are
more likely to follow through with restitution or community service, and that there is some
reduction in repeat offending. With the benefit of this evidence, and increasing dissatisfaction
with the rising costs of prisons, restorative justice offers the entire world, a 21st-century
alternative response to the challenge of crime in a free society.
