INTRODUCTION
More often than not, Justice is represented by a woman with a scale and blindfold, which signifies fairness and objectivity. But considering the complicated interrelations of humanity and different social avenues, is providing justice solely through sanctions practical? This is where the restorative theory of justice comes in—which stresses healing, community well-being, and accountability rather than avenging criminal acts. Although this theory has proliferated worldwide, its scope to revolutionize India’s rectangle of law needs further research.
UNDERSTANDING RESTORATIVE JUSTICE
Restorative justice is not just a theory, it’s a philosophy that addresses the harm caused by criminal behaviour rather than simply punishing the offender. It gives preferences to aggrieved parties of the crime and their point of view, emotions, and restorative justice to bring back harmony in the society. Surviving victims, perpetrators, and even society gather and deliberate the crime and decide on the method of healing, the offence, and related issues. Unlike retributive justice, where there is great emphasis on punishment as a deterrent, restorative justice views crime as a breach of relationships. It honours both the victim and the offender and provides inputs for restoration and reintegration into the community.
THE INDIAN CONTEXT: JUSTICE THROUGH A RESTORATIVE LENS
India’s legal system mirrors a colonial system where retributive justice was the dichotomy and the only option. Courts have traditionally levied fines, jail time, and in some cases executed criminals as a means of deterring crime. However, a common norm is that victims were usually never compensated for their loss or any case investigation. For example, let’s consider the plight of a domestic violence survivor. A prison sentence for the offender might ensure temporary safety, but it doesn’t address the emotional, financial, or societal implications for the victim. Similarly, a juvenile caught in a petty theft case may emerge from incarceration more alienated and prone to re-offend. Restorative justice offers an alternative by addressing the needs of all the parties involved, fostering healing, and paving the way for a meaningful change.
RESTORATIVE JUSTICE IN INDIA
- Humanizing Justice– Restorative justice re-conceptualizes a victim as a suffering human being rather than an abstract legal entity. It understands the pain and provides the victim with an opportunity to tell a story. At the same time, it sees the offender as someone who can change and not simply as someone who has committed a wrong.
For example, in the case of juvenile delinquency, counselling and community service as restorative processes can enable the juvenile to appreciate the repercussions of his actions and assist him in reintegration. This model goes beyond humanizing justice and promotes humanitarian concern for both parties.
- Reducing Recidivism– Punitive mechanisms often fail to rehabilitate offenders, which explains the increased rates of offender recidivism. However, the restorative justice system is not primarily concerned with the shortcomings of the legal system but aims at solving problems. Initial school-based programs that included victim-offender mediation or community-based restitution were very effective in controlling repeat offenders. Thus, with a clear focus on responsibilities to oneself and growth potential, the cycle of crime can be broken with the help of restorative justice.
- Decongesting prisons– The state of India’s prisons is staggering as it is plagued with mass overcrowding, resulting in several individuals being kept in pre-trial detention for several years. Restorative justice promotes factors that are non-custodial, such as mediation, restitution into society, and community services. Such factors reduce the load on the courts and prisons as well as offer an alternative way of justice.
STORIES OF HOPE: RESTORATIVE JUSTICE IN ACTION
Justice Krishna Iyer, in the case of Sunil Batra versus the Delhi Administration, emphasized that “A punitive response should be oriented towards restorative measures and not just deterrence.” It was a landmark case where the Supreme Court established the rights of prisoners and convicts. The case highlighted the poor treatment of prisoners, including sexual abuse and torture. The court emphasized that it has the power to intervene to protect prisoners from cruel behaviour.[1]
Justice Krishna Iyer, in the case of Rattan Singh versus the State of Punjab, highlighted the importance of victim reparation in our criminal law system, which is still a vanishing point that needs to be rectified by the legislature. The court said, “It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependents of the prisoner, do not attract the attention of the law.”[2]
The Supreme Court suggested restorative justice methods such as sentencing circles, community service, victim-offender meetings, study classes, or meditative drills to help restore both the victim and the offender in the case of Babu Singh versus the State of Uttar Pradesh. The case highlighted the importance of the “presumption of innocence” and “the need to prove guilt beyond reasonable doubt” as well as “the need to protect personal liberties.”[3]
Some other landmark judgments uplifting the rights of prisoners and highlighting the significance of restorative justice are as follows –
“The importance of rehabilitation and social re-integration stands out if we appreciate the objective of the Juvenile Justice Act[4], which is to foster restorative justice. There cannot be any meaningful rehabilitation unless the basic elements and principles of restorative justice are recognized and practised.[5]” (Re: Exploitation of Children in Orphanages in the State of Tamil Nadu versus UOI)
“Restorative justice may be used as a synonym for mediation. Restoring the interest of the victim is the object and nature of restorative justice. The concept of restorative justice welcomes the involvement of the victim in the settlement process. It is a process of voluntary negotiation and concertation, directly or indirectly between the offender and the victim.[6]” (Anupam Sharma versus NCT of Delhi)
In Pradeep Kumar versus State, it was said, “There is no straight-jacket formula under criminal law for sentencing an accused. The objective of sentencing an accused should be that of deterrence and reformation. Restorative justice under criminal law aims at allowing the convict to reform and become a useful contributor to society, once released from jail.[7]”
The recent judgment delivered by the Supreme Court in Mohd. Firoz versus State of Madhya Pradesh was highlighted wherein the Court has observed as under-.
“Allowing the offender to repair the damage caused as well as to become a socially useful individual when he is released from jail is one of the basic principles of restorative justice, which has been developed by this Court over the years. Prescribing the maximum punishment may not always prove to be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused the sentence of imprisonment for twenty years instead of imprisonment for the remainder of his natural life for the offence under Section 376-A IPC.[8]“
In another case, the State of UP versus Sanjay Kumar, it was held that “Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. The objective of the policy is to make it easier to predict sentencing outcomes by introducing more uniformity and consistency into the sentencing process. Sentencing policies are needed to address concerns about unfettered judicial discretion and the lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality prescribes that punishments should reflect the gravity of the offence as well as the criminal background of the convict. Thus, the graver the offence and the longer the criminal record of the offender, the more severe the punishment to be awarded. Emphasis is to be laid upon individualized justice. By connecting the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice forgoes uniformity of sentencing. Undue sympathy to impose inadequate sentences would do more harm to the public system and undermine the public confidence in the efficacy of the law.[9]”
CONCLUSION: TOWARD A JUST AND COMPASSIONATE SOCIETY
Restorative justice seeks to redefine retribution and instead advocates for damage control, compassion, and social welfare. If India adopts this model, it will pave the way for a more tolerant and efficient system of handling justice. This transformation will take time, out-of-the-box thinking, and teamwork; however, the outcome, a kinder and safer community, will make the endeavour worth it. As we try to reshape justice, it is imperative to bear in mind that justice is not achieved through balance; to be balanced is to be neutral, and harmony must be aspired to. Justice lies in service and acceptance of humanity in one another and progress together. However, it also needs to ensure that the aim of justice in heinous crimes, that is, punishment, is not diluted. Thus, a balanced approach considers both restorative and retribution theory to justice.
Author(s) Name: Mudita Ahuja (Vivekananda Institute of Professional Studies, VIPS-TC, GGSIP University, Delhi)
References:
[1] Sunil Batra v Delhi Administration (1980) AIR 1579 SC
[2] Rattan Singh v State of Punjab (1980) AIR 84 SC
[3] Babu Singh v State of Uttar Pradesh (1978) AIR 527 SC
[4] Juvenile Justice (Care and Protection of Children) Act, 2015
[5] Re Exploitation of Children in Orphanages in the State of Tamil Nadu v Union of India (2007) Writ Petition CRL No. 102 SC
[6] Anupam Sharma v NCT of Delhi (2008) 146 DLT 497 Del HC
[7] Pradeep Kumar v State of Haryana (2024) 1 SCR 306 SC
[8] Mohd Firoz v State of Madhya Pradesh (2022) CRL No 612 of 2019 SC
[9] State of UP v Sanjay Kumar (2012) AIR SCW 5157 SC
