INTRODUCTION
Crime and punishment are the never-ending spiral of justice for one and injustice for another, thereby involving an unsaid infringement of liberty and interpersonal relationships in society. To repair the harm and heal all those thus involved calls for restorative justice, in its essence, being able to transcend such punishment and serving as a focal point for truth in action. An alternative and auxiliary point of reconciliation between victim, offender, and community is aimed at, thus incorporating questions such as: who has been harmed as a result of such an act? What are their interests and needs that should be considered to repair them? And who will be obliged to correct the wrong thus committed? This approach has been the prima facie stipulation of active involvement of all the stakeholders rather than the conventional passive involvement of primarily two stakeholders at hand, i.e., the victim and the offender. [1]The setup posed a variety of challenges and controversies over the years with no neutral party in its equation, thereby posing difficulty in compiling evidence and giving priority to the rights of the accused as compared to those who have been wronged. To comprehend the said theory, we can look at it through an interlocked system of the 5 R’s: relationship, respect, responsibility, repair, and reintegration. [2]These principles have rather pressed upon the necessity of how justice is nothing but the punishment for the unjust on one end of the coin while reinforcing participative democracy on the other end of the coin. This makes this theory of punishment rather unique from that of retributive, preventive, and deterrent, with a major portion of its focus being centred upon the reformation and restoration of all the stakeholders in society.
PRINCIPLES OF RESTORATIVE JUSTICE:
What makes this theory stand out amongst others is its significance in “reintegrative shame” (a concept involving stigmatization of shame not upon the actor but the act itself) in comparison to “stigmatizing shame” (a concept that calls for degradation, isolation, and exclusion of an individual or the actor of wrong)[3]. The principles that encompass the same are as follows:
- Victim’s interests: information, retribution, restitution, validation, testimony, safety, and support—must be respected and met to ensure the foremost point of justice.
- Offender’s Obligation: to restore the harm caused by an act towards the family, victim, and community, ensuring accountability and correcting what has been wronged.
- Maximization of Justice: participation, mutual consent, dialogue, and conference between the offender and victim serve as an integral turning point in the criminal justice system.
- A peaceful society calls for reconciliation and healing between all the stakeholders involved and affected to ensure social cohesion, thereby preventing future harm.
LEGAL FRAMEWORK OF RESTORATIVE JUSTICE IN PRACTICE:
Penology and victimology constitute an integral aspect of maintaining law and order in a society in particular and the world at large, as opposed to the primitive state of nature discussed by Thomas Hobbes in his well-known book “The Leviathan.” The approach herein compares the rights of the victim as a whole with those of the accused, which have always outweighed the former. These remedies can be comprehensively viewed from the legal framework incorporated in our criminal justice system, which can be bifurcated into three stages as done in the following manner:
Pre-Trial Stage: involves the filing of an FIR, search, and seizure, primarily wherein the foremost right with the victim is incorporated under Section 154 of the Crpc, wherein the complainant is bound to get a copy of the FIR thus filed on his or her behalf, which calls for the victim as well within it if he or she is a complainant.[4] If the same is not filed by the officer in charge of the police station, then the victim has a further right to approach the magistrate via a written pleading of the reasons listed therein, as well as recourse under Article 226 to approach the High Court in case of issuance of writs to such officers not fulfilling their duty or obligation [5]. The issue at hand was settled under a popular judicial pronouncement of Lalita Kumari vs. the State of UP, which made it a mandatory provision from which no derogation whatsoever is permitted since it formulated the base point of any criminal justice system to begin with, thereby involving stakeholders such as victims and accused both within it[6].
The trial stage incorporates the examination of evidence and witnesses, followed by cross-examination and re-examination to meet the ends of truth and justice in the process. The victim herein has a primary remedy to present their case via a government pleader, i.e., through the lawyer of the state, as opposed to the conventional approach of the victim’s lawyer, who had the best interests of their client. The former seems to be concerned with bringing forth the punishment for the accused, no matter whether it involves the interests of the victim, thereby serving partial justice. Section 301(2) of the CrPC, however, allows limited rights to a victim’s lawyer, wherein he can present written arguments on behalf of his or her client, which shall be done with the court’s permission. However, no oral pleadings formulate part of such a remedy[7].
Furthermore, the same was resolved by a succeeding section 302 of the CrPC, which calls for permission by the said court in a manner as provided therein to the victim’s lawyer for conducting prosecution therein[8]. It incorporates the provision that the victim has an adequate right to fair and just representation, just like the accused has. The state or government provides a pleader or lawyer or allows the victim, if he or she has sufficient knowledge, to plead their case by themselves. The role of a victim’s lawyer can thus be interpreted more as assisting in nature rather than holding any substantial water.
Post-trial Stage: is usually when the judgment, order, or decree is pronounced by the presiding judge in a particular case at hand, wherein the victim has a remedy of appeal under the proviso of Section 372 of Crpc, wherein such a remedy lies against lesser conviction, the acquittal of the accused, or inadequate compensation[9]. Section 377 of the CrPC further empowers the state, i.e., its lawyer, on their behalf to seek enhancement of punishment, which is the sole prerogative of their jurisdiction, and the victim’s lawyer has no role to play whatsoever herein[10]. Articles 132 and 134 invoke the appellate jurisdiction of the Supreme Court in case a victim or complainant is aggrieved by any order, decree, or judgment of its subordinate court.
The stage also involves the issue of compensation, which was addressed by the insertion of Section 357-A in Crpc, which exclusively deals with the matter of the Victim Compensation Scheme to be devised by every state government based upon its needs and funds from time to time wherein the accused is unable to fulfil its obligation of restoring and restituting the victim within the society[11].
In light of these legal provisions, what we observe is thus a narrower concept of participation within the Indian Criminal Justice System for victims as opposed to that of the accused, who has been safeguarded at several points within it to ensure that justice is achieved and done. It is not just a pretend one on the face of it. Restitution, compensation, speedy, and fair justice are thus the primary realms of remedial recourse under the broader scheme of restorative justice. It becomes crucial to examine whether this methodology is a win-win for both the accused and victims or is a mere curtain to ensuring participation in granting justice.
CONCLUSION REMARKS:
The traditional punitive approach of the criminal justice system was left behind a long time ago, with contemporary restorative justice taking its place to strike a delicate equilibrium between the rights of the accused and those of victims. This illusion of fairness and genuineness is yet to tread a long way toward reformation from where we are standing at present, thereby helping us to remove the question mark in the long run at various stages of a criminal justice system and restore the faith of people to an all-inclusive, empathetic, effective, and equitable justice delivery mechanism.
Author(s) Name: Vidhi Kawrani (Nirma University)
References:
[1] Counsel to Secure Justice, ‘Restorative Justice and Child Sexual Abuse in India’ (Centre for Criminology and Victimology, NLUD, 2018) < https://nludelhi.ac.in/download/publication/2017/Perspectives%20of%20Justice.pdf
> accessed June 15, 2024
[2] Beverly B., ‘The 5 R’s of Restorative Practice’ (Resolutionaries, 2018),
<https://www.coloradocrimevictims.org/wp-content/uploads/2022/08/5-Rs-of-Restorative-Justice.pdf> accessed
June 15, 2024
[3] Logan Seacrest, ‘Justice for All: How Restorative Justice Mutually Benefits Victims and Youth'(R Street, September 2023)< https://www.rstreet.org/wp-content/uploads/2023/09/Final-Study-No.-294.pdf> accessed June 15, 2024
[4] Code of Criminal Procedure 1973, s. 154
[5] Constitution of India, art. 226
[6] Lalita Kumari vs. State of UP [2013] 14 S.C.R. 713
[7] Code of Criminal Procedure 1973, s. 301
[8] Code of Criminal Procedure 1973, s. 302
[9] Code of Criminal Procedure 1973, s. 372
[10] Code of Criminal Procedure 1973, s. 377
[11] Code of Criminal Procedure 1973, s. 357 A-D
