LEGITIMACY OF RESTORATIVE JUSTICE SYSTEM VIS-À-VIS CONSTITUTIONAL MANDATES: A META-ANALYSIS
ABSTRACT
The paradigm of Justice covers Restorative justice system as a supplement to, or a replacement for, the traditional criminal process. The multifaceted and ideological principle of restorative justice is a viable community-based mechanism for regulating criminals which just not provides an equally efficacious, but a social response to crime in a society. The pre-embedded circle of Criminal Justice system covers the transitional framework of common goals which includes rehabilitation, deterrence, incapacitation, and denunciation of crime. The competing nuance of Punitive Justice system with respect to restorative system shades off the socially desirable solution which would suffice its purpose of its existence. This paper will derive how the synergy results the effectiveness of restorative processes in reducing recidivism rates and also addresses the purview of Constitutional mandates. First part of the writing drafts the difference of approaches to criminal justice system and further portrays the objects of the restoration, which it strives to achieve. Next part of the writing posits the results as socially desirable by attuning victim’s expectation under the restorative processes by the principles of reparation and other paramount goals of it. The last part of the paper concludes the future perspective by enunciating applications of new practices as suggestions.
Keywords: Restorative Justice System, Punitive Justice System, Rehabilitation, Deterrence.
INTRODUCTION
While eradicating the purview of rehabilitation sentencing by the courts, a series of new crime control practices known collectively as community justice have reintroduced the use of rehabilitation and discretion in the control of certain minor crimes. Community justice represents not a simple return to the rehabilitative ideal, but an approach to crime and punishment that is radically different from that of the traditional criminal justice process. Community justice initiatives—which include community prosecution, community courts, sentencing circles, and citizen reparative boards—advocate local, decentralized crime control policies generated through widespread citizen participation. The emphasize of Community justice system attacks the causes of crime, rehabilitating individual offenders, and repairing the harm caused by crime rather than punishing offenders according to traditional retributive or deterrent concerns. Community justice initiatives are nourishing even as the mainstream criminal system faces a crisis of legitimacy in which an unprecedented number of citizens, many of them African American males, are incarcerated for long periods under a harsh and rigid regime that aspires to do little more than to incapacitate and warehouse offenders.[1] The mainstream criminal justice system is in crisis. The past twenty years have witnessed a revolution in sentencing severity that many criminal justice experts view as unsound and perhaps even counterproductive.[2]
Restorative justice revolves around the ideas that crime is, in essence, a violation of a person by another person (rather than a violation of legal rules); that in responding to a crime our primary concerns should be to make offenders aware of the harm they have caused, to get them to understand and meet their liability to repair such harm, and to ensure that further offences are prevented; that the form and amount of reparation from the offender to the victim and the measures to be taken to prevent remembers of their communities through constructive dialogue in an informal and consensual process; and that efforts should be made to improve the relationship between the offender and victim and to reintegrate the offender into the law-abiding community.[3] The proponents of the restorative justice argue that punishment society’s customary response to crime; neither meets the need of victim nor prevents reoffending. Restorative justice aims at encouraging offenders to take responsibility for the consequences-of their actions; express repentance and repair the harm they have done. Restorative justice also emphasizes the reintegration of offenders into communities rather than their control through strategies of punishment and exclusion. Restorative justice is an evolving response to crimes that respect the dignity and equality of each person, builds understanding, and promotes social harmony. It is now believed that many times the Victim induces or facilitates the commission of crime. There are certain offences in which the victim plays a very important role and the works towards the success of crime, e.g., abortion, prostitution. The study of victim-offender relationship is, therefore, considered necessary today for determining the question of guilt of the offender and for fixing up the nature and amount of penalty for the offender. This process provides an opportunity for victims to obtain reparation, feel safer and seek closure, allow offenders to gain insight into the cause and effects of their behaviour and to take responsibility in a meaningful way, and enable communities to understand the underlying causes of crime.[4] The community justice initiatives of the 1990s drew on insights from drug courts, broken windows theory, and community policing in an attempt to address the crisis of legitimacy facing the criminal justice system. Proponents hoped that enlisting the support and participation of citizens would make the criminal justice process more responsive to local community needs and more effective in permanently improving the community’s quality of life, rather than simply cycling recidivists through a revisiting the un resulted ends.[5]
The idea of relief and compensation to victims is not a new one. Earlier too, our laws provided for compensation to the victims of accidents. In some cases, the law combined punishment of the offender with monetary satisfactions for the injured party as a means of foretelling enmity through counter-violence by the victim’s kin. In the 1950s, an English reformer initiated a modern movement to bring the victim back into the justice equation. “Victim compensation” refers to payments made from state funds to victims of crime. Advocates of victim compensation have argued that since the state is responsible for protecting its citizens from crime, the failure to do so obligates the state to indemnify those who are victimized. The state is believed to be responsible to the victims because imprisonment prevents offenders from paying damages. The general welfare policy also is cited as justification for governmental assistance to the unfortunate victims of crime.[6]
Restorative Justice as Community Justice Practice:
The restorative justice movement began in the United States in the late 1970s and 1980s. It grew out of a concern over the neglect of victims and what was perceived to be a counterproductive, punitive approach toward offenders in the criminal system.[7] For many scholars, restorative justice implies a rejection of punitive and retributive responses to crime.[8] The terms “community justice” and “restorative justice” are sometimes treated as synonyms in the scholarly literature.[9] Simultaneous differences of these two are community justice principle is that there should be more local, lay participation in crime control; the core restorative justice principle is decision making by parties with a stake in the offense, principally the victim and the offender. Thus, community justice initiatives can be characterized as fully implementing restorative justice only when they permit victims and offenders to participate in the sanctioning process. Conversely, restorative justice practices constitute a form of community justice only when the stakeholders affected by the crime are designed broadly enough to include the community at large. Restorative justice institutions have increasingly incorporated community participation into their sentencing processes on just this basis,[10] making it appropriate to consider these institutions under the community justice umbrella.
Laws relating to Compensation:
The provision relating to compensation to the victims of crime by the offender are contained in Section 357 of the Criminal Procedure Code, 1973 and Section 5 of the Probation of Offenders Act, 1959 and some other statues Section 5 of the Probation of Offenders Act empowers a trial court, in its discretion, to order for ‘reasonable compensation’ to any person for his loss or injury caused to him by the offender who is released under Section 3 or Section 4 of the Act.
The power to compensate the victims of crime under Section 357 of the Criminal Procedure Code is not a new remedy provided under Criminal Procedure Code of 1973. Even Sections 545 and 546 of the Criminal Procedure Code, 1998 provided for compensating victims of crime. The Law Commission of India noted in its Forty First Report (1969) our courts did not exercise their statutory powers under this section as freely and liberally as they could be desired. The Commission favoured payment of compensation out of fine imposed on the offender. Accordingly, With a view to give a substantive power to the trial court to this effect, it recommended insertion of a substantive provision for payment of compensation to the victim of crime.
Under Section 357(1) of .the Criminal Procedure Code the court has been empowered to order the payment of compensation to the victim of an offence out of the fine imposed on the accused person while passing an order of sentence of which fine forms a part. Clause (b) of sub-section (1) provides that for compensating the person who has himself suffered injury or loss when compensation is recoverable by a person in a civil court. Clause (c) contains a provision for compensating the heirs and dependents of the person who is victim of a homicide. [11]
Sub-section (3) of Section 357 of the Code, which was introduced for the first time in 1973, provides that when a court imposes a sentence of which fine does not form a part, it may direct the accused to pay compensation. Clauses (a) to (d) sub-section (1) of Section 357 reproduce word for word clauses (a)(b), (bb), and (c) respectively of the old sub-section (1) of Section ‘545 with the only change that definite article ‘The’ has been inserted in clause (a) before the word ‘expenses’. Section 357(3) runs: ‘When a Court imposes a sentence of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced”.
It is indeed a step forward in our criminal justice system and reflects the concerns of the legislature for the victims of crime who suffer loss or injury due to the act, neglect or default of the accused. The object of sub-section (3) of Section 357 is to empower the court to award compensation to the heirs and dependents for the loss resulted from the death of the victim of the crime. The compensation should be payable for any loss or injury, whether physical or pecuniary and the court shall give due regard to the nature of the injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors. Thus, by the new Section, the jurisdiction of the criminal court has been extended to liberally order for compensating a victim of crime for his loss or injury even in those cases where fine dies not form a part of the sentence, which ordinarily lies in the domain of the civil court.[12]
The restorative and reparative theories that have developed in response to the plight of the victims of crime also underline the necessity of compensate the victims of crime. -Their Argument is that sentence should move away from punishment of offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theory encompasses the notion of reparation for the effects of the crime. It envisages less resort to custody, with onerous community based sanctions requiring offenders to work in order to compensate victims and also contemplating support and counselling offenders to reintegrate them into community. Such theories therefore tend to act on a behavioural premise similar to rehabilitation, but their political premise is that compensation for victims should be recognized as more important than notice of just punishment on behalf of the state.[13]
Conclusion:
The expanding universe of compassionate criminology must so respond realistically to the new challenge of human rights and social justice as to salvage, solace and resituate victims of crime and abuse of power by resorting to new methodologies of reparative, compensatory, preventive and other judicial remedies. The victims of crime must claim our attention. Injustice to him/her can be fully undone only by recitative justice, beyond punishment of the offender. The most important interest of the victims of crime is restitution, from the victim’s point of view; restitution is beneficial because it helps to make whole the victim’s crime related loss. The present laws in the absence of legal mandate to pass an order of restitution to the victim of crime in appropriate case only do lip service to them. Making a mandatory provision for compensating the victim of crime by offender may not solve all the problems of the victim of crime, because this provision also will suffer from the same disadvantage that the offender in most of the cases would be discharged or acquitted due to lack of evidence or other technicality in the procedure. As the provision merely emphasizes that the victim of crime be compensated only on conviction, it is not likely to be of real help. There is therefore an urgent need to establish a victim assistance and compensation board to provide assistance and compensation to the victim of crime. Therefore, it is high time that the government of India should come forward with a scheme/program to provide compensation and assistance to the victims of crime for their loss or injury. As we know the victims as well as the accused/offenders in most cases are necessarily poor, restitution alone cannot solve the problems of the victim of crime. Therefore, a consolidated victim welfare fund may be created on a statutory basis, the fund will be created from the total amount collected by the State as fine from the offenders/accused and also a suitable and matching grant should be provided by the State. A Board named, as victim Welfare Board, which will be of non-political composition, will administer the fund. The payment of compensation shall be left to the discretion of the Board and it may refuse payment where there has been undue delay in reporting to police about the occurrence and also where the victim contributed to the commission of the crime.
By Satyendra Mani Tripathi
[1] Jonathan Simon, Introduction: Crime, Community, and Criminal Justice, 90 Cal. L. Rev. 1415, 1418–19 (2002)
[2] Kate Stith & Jose A. Cabranes, Fear of Judging: Sentencing in the Federal Criminal Courts 59–66 (1998)
[3] Wright, M, ‘Justice for victims and offenders, Milton, Keynes, U.K. open University press (1991)
[4] Devasai V.V. ‘Victimology and the role of victims in crime, cohin University Law review, 84-85 (1980)
[5] Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23(2) Law & Pol’y 1, 6 (2001), available at http://www.courtinnovation.org/pdf/prob_solv_ courts.pdf.
[6] Haveripeth. Prakash, Restorative Justice and Victims: Right to Compensation, International Research Journal of Social Sciences, ISSN 2319–3565 Vol. 2(2), 43-47, February (2013)
[7] William R. Nugent et al., Participation in Victim-Offender Mediation and the Prevalence and Severity of Subsequent Delinquent Behavior, 1 Utah L. Rev. 137, 137–38 (2003)
[8] Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 46 UCLA L. Rev. 1727, 1743 (1999)
[9] Restorative and Community Justice in the United States, 27 Crime & Just. 235, 246–47 (2000) (noting that conceptions of restorative and community justice are sometimes used interchangeably).
[10] See id. at 239 (noting that restorative justice has evolved from predominantly victim-focused mediation to processes that involve families, friends, supporters, and local community members)
[11] Haveripeth. Prakash, Restorative Justice and Victims: Right to Compensation, International Research Journal of Social Sciences, ISSN 2319–3565 Vol. 2(2), 43-47, February (2013)
[12] Government of India, ‘Criminal Processor Code, (1773) Section, 357,357(1), 357(3), old subsection 545. (1973), probation offender Act, section 5,3 and 4 (1959), Law commission of India forty first report (1969)
[13] Srivastava S.S., Criminology Criminal Administration, Publication division, central law Agency, NewDelhi, 395- 397 (2007)
