THE EVOLVING CONCEPT OF RESTORATIVE JUSTICE SYSTEM IN CRIMINAL LAW

INTRODUCTION

Restorative Justice, unlike traditional criminal Justice, does not include the victim in the punishment of the perpetrator. Instead of requiring revenge for injustice, Restorative Justice aims to foster accountability. This is most usually accomplished by gathering the victim, offenders, and others who have been hurt in the community into a circle and respectfully sharing their perspectives, feelings, and concerns. One of the famous scholars of the restorative justice system defines it as a set of ideas aimed at promoting peace and harmony, rebuilding relationships, and repairing harm among victims, the community, and the offender. Its fundamental purpose is victim and offender empowerment and engagement in a community at the same time. [1]According to the definition given above, a restorative justice system is a collection of processes, programs, and practices that bring victims and offenders together to repair harm, heal, and restore relationships within a community.

Restorative Justice is a legal or socially mandated means for delivering Justice during trial court processes; however, the restorative justice system is a new technique established for the people after a crime or punishment has occurred, and these techniques are used to restore victims or offenders to society, allowing society and people to equalize Justice. Restorative Justice is primarily concerned with the rights of procedures during and before trial, but it also considers the conclusion of the trial, and its duty resumes there to restore the harm, persons, and relationships to the community in order to avoid additional repercussions.

SOCIO-LEGAL ASPECT OF RESTORATIVE JUSTICE

Disputes between members of society occur on a daily basis and might occur in the course of personal or economic activity. Without defining unlawful concerns or recovering individuals from the repercussions of legal difficulties, the restorative justice system retains and tends to keep the relationship between members of the community. It focuses on a variety of issues and uses a variety of approaches to address them, bringing aggrieved parties and interested members of society together to solve those issues or resolve those conflicts in a corrective manner or through various official and informal processes. The comprehension of the psychology behind the crime and then delivering the most appropriate punishment to the perpetrator via the inclusion of the victim in the penal process is the foundation of Restorative theories. Restorative ideas are based on four principles. They are Restoration, Reparation, reconciliation, and Reintegration. The main goal of Restorative Justice is to make amends for the harm that the offender has caused by incorporating the aggrieved parties in the decision-making process, which might vary from criminal charges to community work.

The aim of reparation is the perpetrator’s social harm to the victim and society as a whole must be repaired. This emphasizes the central idea that crime affects both the victim and the offender and that rehabilitating the criminal will result in rehabilitating society as a whole. The ultimate purpose of the Restorative Justice system is to bring the offender and society closer together by resolving conflicts peacefully and reintegrating the offender back into society through restorative methods.[2] Restorative Justice is a novel take on the criminal justice system, focusing on mending rather than punishing criminals. It is a process in which persons who have been personally or indirectly damaged by an offence strive to decide if the harm may be rectified.

THE PRESENT CRIMINAL JUSTICE SYSTEM IN INDIA AND ITS EFFICACY

When it comes to the essence of the criminal justice system, we discover that in the vast majority of countries, crime is regarded as a social offence. Criminal responsibility is also thought to imply a higher level of moral guilt than other types of legal liability. As a result, crimes are separated from other illegal activities by their public nature. This suggests that society has been the victim of a crime, and it is the responsibility of society to restore the equilibrium disrupted by the crime. As a result, the State, not the real victims, is responsible for prosecuting criminals, although the burden of evidence in all criminal offences transfers to the victim during trial.

The Indian Criminal Justice System is a centuries-old system that is mostly based on the penal system established in India during British rule. The most significant procedural law determining the fate of criminals is the Criminal Procedure Code (CrPC), which was enacted in 1973.[3] India’s legal system is adversarial, with the prosecution bearing the burden of proof and the accused presumed innocent. The retributive mechanism does not apply directly in the Indian Criminal Justice System. Rather, as a basis for punishment, the system emphasizes rehabilitation. However, the system encourages offenders to utilize deterrence as a kind of punishment on the other hand. Throughout history, several scholars have expressed unhappiness with India’s criminal justice system. It is to mention that the right to a fair trial, proof beyond a reasonable doubt, the accused’s right to be informed of the allegations before trial, and the right to mount a defence are all common law concepts that have been established in our Constitution and later strengthened by the higher judiciary. This constant emphasis on the rights of the accused is a natural characteristic of any liberal democracy in which the person is protected from the state-controlled criminal justice system. There is no provision in the Criminal Procedure Code for giving legal assistance to a crime victim. Only the accused are eligible for legal assistance.

HOW JUVENILE JUSTICE SYSTEM IN INDIA IS AN EXCEPTION TO IT?

The Juvenile Justice System in India has moved away from the old paradigm of penalties, acknowledging the negative influence of adult convicts’ interactions with children, as well as the greater chance of children’s abilities repairing throughout their growing years. While minors are safeguarded from the negative repercussions of jail, the victims of their offences have received little help from the juvenile justice system. The Juvenile Justice Act established the parameters for restorative programs such as rehabilitation and protection of juvenile rights.[4] The rule is based on the belief that instead of harsh criminal penalties, young adolescents and children may and should be rehabilitated via restorative and neighbourly techniques.

Whether it is the offender’s first offence or he is recommended by the formal legal system, the juvenile justice system focuses on him at each level and takes great care in both instances. This programme may be carried out in any context, whether it is inside the juvenile justice system, such as a juvenile jail, or outside of it. Rather than being imprisoned, juvenile criminals must be rehabilitated in Special homes, according to the law. Different rehabilitation approaches are used depending on the offender’s age, the type of offence committed, and their mental and physical status. The majority of juvenile offenders are involved in the decision-making process that impacts their lives.

POLICY RECOMMENDATIONS FOR INTEGRATING RESTORATIVE PRACTICES INTO THE CURRENT JUSTICE SYSTEM

Alternatives to Violence is an initiative that seeks to find alternatives to Violence. This programme consists of a series of seminars that primarily focus on the development of a peaceful society, the development of trust, the development of communication, and the development of conflict resolution skills in inmates. All of these seminars and skills are extremely beneficial in assisting the offender’s reintegration into society since destructive and violent behaviours are replaced with constructive and conflict resolution skills. Justice requires not just vengeance but also a deterrent in every civilized community.

In the event of less serious offences, however, the criminals must be rehabilitated. Although present laws on sexual misconduct and punishments must be properly enforced, as many have incorrectly advocated, severe retaliation is not the answer. It is undeniable that a systemic change cannot be implemented overnight. However, certain present processes for specific offences should be changed to include restorative practices.[5] It may be feasible to make the transition to a restorative system in this way. Counselling programmes should be designed in order to understand the offender’s mental state when he or she is engaging in illicit activities. In addition, in-service criminology training for police officers should be incorporated in the training system to focus emphasis on understanding the ideas that support its existence.

Conclusion

If no punishment is given to the criminals, the Criminal Justice System becomes inconsequential. To achieve all-around societal harmony, our legislators must focus on reformative Justice. A person who is being kept in jail awaiting trial for a crime, the high expense of criminal proceedings, the time it takes to get a verdict, and the inadequate administration system all contribute to the need for a more effective and well-being justice system. This victim-centred restorative justice system will be a solution in which the victim is placed in the lead or most important position, and all those with an interest or concern in the justice system are mobilized. Restorative Justice is a technique that may be applied to a wide range of offences and stages of the legal procedure. Its outcomes include victim satisfaction, assisting victims in healing from Violence, and reducing the likelihood of future crime by modifying their mindset and giving more meaningful assistance. It is done because it is the correct thing to do, which is that victims must be handled or addressed, offenders or wrongdoers must be urged to accept responsibility, and all interested parties who are affected by the offence must be notified.

Author(s) Name: Poulami Das (West Bengal National University of Juridical Sciences,  Kolkata)

References:

[1] Zehr h. The little book of restorative Justice, Good Books, 2002.

[2] David Van Ness & Karen Strong, RESTORING JUSTICE: AN INTRODUCTION TO RESTORATIVE JUSTICE 99-100(4th edn., 2010). 

[3] Criminal Procedure Code, 1973.

[4] Karanshubh, Restorative Justice & Weaker Sections, Legal Services India. http://www.legalservicesindia.com/article/623/Restorative-Justice-&-Weaker-Sections.html

[5] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report, http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_ system.pdf.

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