DR. B.R.

AMBEDKAR NATIONAL LAW UNIVERSITY,

SONIPAT

JURISPRUDENCE PROJECT
ON

RESTORATIVE JUSTICE
(IDEAS AND DEBATES)

SUBMITTED TO: SUBMITTED BY:

DR VANEET KAUR SOKHI NIRMAL KUMAR
ASSISTANT PROFESSOR OF LAW 2001072
Section: B
Semester: 3
 Page |1

TABLE OF CONTENT:
1. INTRODUCTION
1.1 Definition

2. IDEA OF RESTORATIVE JUSTICE

2.1 The basic principles of Restorative Justice

3. METHODS OF RESTORATIVE JUSTICE

3.1 Victim Offender Mediation
3.2 Family or Community Group Conferencing
3.3 Peacemaking or Sentencing Circles

4. RESTORATIVE JUSTICE AND ALTERNATIVE DISPUTE REDRESSAL

5. IDEA OF RESTORATIVE JUSTICE IN INDIAN CONTEXT

5.1 Inadequate Legal Basis
5.2 Compoundable Offences

6. DEBATE

7. CONCLUSION

8. BIBILIOGRAPHY
 Page |2

1. INTRODUCTION:

Developing effective ways of responding to crime has been a long-standing challenge. In this
regard, conventional justice systems have been criticized for their ineffectiveness 1. In
conventional justice systems, laws identify punishable acts, and as such, crime is seen as a law-
breaking behavior. As a consequence of criminal behavior, convicted or admitted wrongdoers are
the subject of punishment imposed by the state. Yet, the intent of punishment is not always clear
to offenders, due to the lack of moral communication during the justice process. The adversarial
nature of conventional justice systems encourages offenders to justify their behavior by denying
or neutralizing responsibility for what they have done, because their focus is on avoiding harsher
penalties rather than on understanding the impact of their crime on victim. Conventional justice
systems also fail to meet the needs of victims. In the conventional justice process, victims have
been neglected. Victims’ roles in the conventional justice process are limited and they are
disempowered because they are not actively involved in the decision-making process in
responding to the crimes committed against them.

In primitive societies punishment was mainly retributive. According to this theory the evil should
be returned for evil without any consequence. With time being scholars found some loopholes in
this theory of punishment. In Europe in 1970s critics of this theory came out with the new
concept of justice which was the reformative justice. They wanted to shift retributive to
reformative justice. There are arguably two core approaches for interventions to be restorative.
First, restorative justice aims to achieve justice by repairing the harm caused by crime. It is for to
put their broken relationship ‘into proper balance’2. Second, to repair the harm caused by crime,
RJ aims to involve the stakeholders of the crime in the decision-making process for dealing with
the aftermath of the crime as it is difficult to repair the harm without the involvement of those
directly affected.

1.1 DEFINITION:

1
Crawford, A. and Newburn, T. (2003) Youth Offending and Restorative Justice: Implementing Reform in Youth
Justice, Devon, UK: Willan Publishing.
2
Pranis, K. (2004) ‘The Practice and Efficacy of Restorative Justice’, Journal of Religion & Spirituality in Social Work
Vol.23(1/2) pp. 133-157.
 Page |3

The definition of Restorative justice has been contested and changed over time. This
may partly relate to its development as a concept and as a practice. It is bit difficult to define it
for the reasons such as global popularity, ambiguity in key terms, various views among
reformative theory theorists and advocates, and applications in transitional justice contexts.
Therefore, reaching an absolute definition of RJ has become a challenging task and different
scholars and practitioners try to define RJ differently.

Many authors have attempted to define the term Restorative Justice but till now no
comprehensive definition has been accepted as such by the legal community. The following
definitions are the prominent ones:

“Restorative Justice is an approach to justice that aims to involve the parties to a dispute and
others affected by the harm (victims, offenders, families concerned and community members) in
collectively identifying harms, needs and obligations through accepting responsibilities, making
restitution, and taking measures to prevent a recurrence of the incident and promoting
reconciliation”3

However, the most widely accepted definition was formulated by an early advocate of
Restorative Justice, Tony Marshall in the following terms:

“Restorative Justice is a process whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of that offence and its implications for the future”4.

According to its proponents, Restorative Justice is not a new invention. Rather, it is a return to
traditional patterns of managing with conflict and crime that had been present in different
cultures throughout the period of human history5. It is argued that in the era pre-dating modern
states, crime was conceptualized in personal terms and was responded to in a fashion more in
line with Restorative Justice, with the emphasis placed on restitution and reconciliation. The
state-administered retributive response to crime that dominates today’s justice systems and
governs our understanding of crime and justice is a phenomenon just a few centuries old. The
punitive system of crime control evolved and achieved its full development in the second half of
the eighteenth century, and, as other parts of the world were colonized by Europeans, the

3
http:// www.restorativejustice.org/ (Accessed on 10 dec 21)
4
Marian Liebmann, “Restorative Justice how it works”, (Jessica Kingsley Publications, 2007)
5
Braithwaite 2002, chapter 1
 Page |4

Western model of justice was imposed on colonized peoples. Once western legal systems were
established, the informal, community-based forms of conflict resolution survived to some
degree-openly or secretly-in many countries, but in public discourse they were generally
considered as practices inferior to law. However, since the 1960s, there has been a sea change.
Attempts have been made to begin reversing the historical process and revive ancient conflict
resolution traditions. A variety of social and political movements have contributed to this
reversal, such as the informal justice movement, the restitution movement, the victim’s
movement, penal abolition, peacemaking criminology, the women’s movement, the growth of
interest in native justice traditions of indigenous people. These diverse influences directly or
indirectly contributed to the emergence of the Restorative Justice ideas and practices.

2. IDEA OF RESTORATIVE JUSTICE:

Restorative Justice is different from the contemporary criminal justice in several ways. It views
criminal acts more broadly rather than defining crime as simply lawbreaking; it recognizes that
offenders harm victims, communities and even themselves. It involves more parties in replying
to crime rather than giving key roles only to government and the offender, it includes victims and
communities as well. It measures success differently rather than measuring how much
punishment is inflicted, it measures how much harm is repaired or prevented. The fundamentals
in Restorative Justice process include the following:

Restorative Justice principles are characterized by four key values: First, the encounter of both
parties. This step involves the offender, the victims, the community and any other party who was
involved in the initial crime. Second, the amending process takes place. In this step, the
offenders will take the steps necessary to help repair the harm caused. Third, reintegration
begins. In this phase, restoration of both the victim and the offender takes place. In addition, this
step also involves the community and others who were involved in the initial crime. Finally, the
inclusion stage provides the open opportunity for both parties to participate in finding a
resolution. The process of Restorative Justice is lengthy and must be committed to by both
parties for effective results6.

6
http:// www.restorativejustice.org/ (last assessed 08 dec 21)
 Page |5

Crime causes harm to victims, offenders and communities; crime is fundamentally a violation of
people and interpersonal relationships. Violations create obligations and liabilities. Offender’s
obligations are to make things right as much as possible. For the effectiveness of restorative
justice, the government, victims, offenders and communities should be actively involved in the
criminal justice process. In promoting justice, the government should be responsible for
preserving order and to promoting the principles of restorative justice. A focus should be on
putting right the wrong. A view, that both the victim and the offender are active players in
responding to and resolving the criminal conflict. A victim should be compensated the loss
suffered by him through restitution by the offender.

2.1 The basic principles of Restorative Justice are7:

2.1.1 Crime is an offense against human relationships.
2.1.2 Victims and the community are central to justice processes.
2.1.3 The first priority of justice processes is to assist victims.
2.1.4 The Second priority is to restore the community to the degree possible.
2.1.5 The offender has a personal responsibility to victims and to the community for
crimes Committed.
2.1.6 The offender will develop improved competency and understanding as a result of the

Restorative Justice experience.

2.1.7 Stakeholders share responsibilities for Restorative Justice through partnerships for
action.


The Declaration on the Basic Principles of the Use of Restorative Justice programs in
Criminal Matters (2000) provides operational guidelines and procedure to effect the
restorative process. It provides the fundamental procedural safeguards to be applied in
Restorative Justice programs and in particular to restorative processes:

1. The parties should have the right to legal advice before and after the restorative process and,

where necessary, to translation and/or interpretation. Minors should, in addition, have the right

7
James Dignan, “Understanding victims and Restorative Justice”, (Open University Press,2005)
 Page |6

to parental assistance;

2. Before agreeing to participate in restorative processes, the parties should be fully informed of

their rights, the nature of the process and the possible consequences of their decision;

3. Neither the victim nor the offender should be induced by unfair means to participate in

restorative processes or outcomes.

According to its proponents, a shift from judicial punishment to community restorative justice, as
the routine response to crime, will have a number of benefits. Restorative justice, they claim, will
meet the needs of victims of crime much better than judicial punishment. Also, although many
offenders will find restorative justice more demanding than undergoing judicial punishment, they
will benefit because restorative justice offers them the chance to regain – or in many cases gain
for the first time – the respect of the community rather than its permanent scorn. Communities, it
is claimed, will also benefit in a number of ways: offenders will be rendered less dangerous; the
large fiscal costs of judicial punishment can be diverted to more constructive and crime-
preventing projects; and restorative justice will help foster arts of citizenship and a sense of
community which can be useful in other situations.

3. METHODS OF RESTORATIVE JUSTICE

Meetings between victims, their offenders, and members of the affected community are
important ways to address the relational dimension of crime and justice. It is accepted that the
following three methods are hallmarks of Restorative Justice. Each requires that the offender
admit responsibility for the offence. Each is limited to parties who volunteer to participate.

3.1 Victim Offender Mediation

(VOM also called Victim-offender dialogue, victim-offender conferencing, victim-offender

reconciliation, or Restorative Justice dialogue), is usually a meeting, in the presence of a trained
mediator, between victim and offender. This system generally involves few participants, and
often is the only option available to incarcerated offenders. The goals of victim offender
mediation include: permitting victims to meet their offenders on a voluntary basis, encouraging
 Page |7

the offender to learn about the crime’s impact and to take responsibility for the resulting harm,
and providing victim and offender the opportunity to develop a plan that addresses the harm8.

3.2 Family or Community Group Conferencing:

Family Group Conferencing has a wider circle of participants than VOM, adding people
connected to the primary parties, such as family, friends and professionals. FGC is often the most
appropriate system for juvenile cases, due to the important role of the family in a juvenile
offenders’ life. This process brings together the victim, offender, and family, friends and key
supporters of both in deciding how to address the aftermath of the crime.

3.3 Peacemaking or Sentencing Circles:

These circles use traditional circle ritual and structure to involve all interested parties.
Sentencing circles typically employ a procedure that includes: (1) application by the offender;
(2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle;
and (5) follow-up circles to monitor progress. This is a process designed to develop consensus
among community members, victims, victim supporters, offenders, offender supporters, judges,
prosecutors, defense counsel, police and court workers on an appropriate sentencing plan that
addresses the concerns of all interested parties. The goals of circles include: promoting healing
of all affected parties, giving the offender the opportunity to make amend, giving victims,
offenders, family members and communities a voice and shared responsibility in finding
constructive resolutions, addressing underlying causes of criminal behavior, and building a sense
of community around shared community values.

4. RESTORATIVE JUSTICE AND ALTERNATIVE DISPUTE

REDRESSAL:

The concept of Alternative Dispute Resolution (ADR) mechanism is capable of providing a

substitute to the conventional methods of resolving disputes. Alternative Dispute Resolution
(ADR) is a technique to resolve disputes and disagreements between the parties by arriving at an
amenable settlement through negotiations and discussions. In India, ADR is established on the

8
Victim offender mediation available at https://criminal-justice.iresearchnet.com
 Page |8

basis of Article 14 (Equality before law) and Article 21 (Right to life and personal liberty) under
the Constitution of India. Various Alternative Dispute Resolution mechanisms can be classified as:

1. Arbitration: In this both the parties involved in the dispute, choose the person to
hear and determine their dispute through a consensus. The aim of this type is to
resolve the dispute in speedily and in a cost-effective manner.

2. Conciliation: Under this process the intention is to facilitate the settlement

between the parties. However, in this parties are not obliging or bound by
judgement until both the parties reach on mutually pleasing settlement.

3. Mediation: In this a mediator involved in assisting the parties for the settlement.
Also, his decisions are not binding on them, he only acts as a facilitator.

4. Negotiation: In this without intervention of third party, both the parties try to
solve dispute mutually.

5. Lok Adalat: Lok Adalat: Lok Adalat is one of the alternative dispute resolution
mechanisms. It is where disputes/cases pending in the courtroom or at the pre-
litigation stage are settled/compromised in an amicable manner. Lok Adalat have
been given statutory status under the Legal Services Authorities Act, 1987. Under
the said Act, the award (decision) made by the Lok Adalat is regarded to be a
decree of a civil court and is last and official on all parties and no appeal against
such an award lies before any courtroom.

5. IDEA OF RESTORATIVE JUSTICE IN INDIAN CONTEXT:

The development of Restorative Justice in India can be traced in the form of panchayats which
were in practice in ancient times. After the intervention of British, the panchayats lost its
importance due to the introduction of procedural laws in the form of statutes for its application in
criminal courts. The concept has no legal recognition in Indian sphere, as no statute prescribe
specifically for the application of Restorative Justice principles. It is the need of the hour to
 Page |9

incorporate the concept Restorative Justice in India, taking examples from other countries and
modifying it in such a manner so as to fix according to Indian conditions9.

The Indian heritage has much witness 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. In fact, the caste panchayats and other social groups in the countryside have been an
effective source to dispense justice. The verdict delivered by these bodies was suitable to
everybody. The interests of the victims were supreme. Many time the offenders were directed to
compensate or restore the harm done to the victims. The effect and impact of social expectations
and social sanctions on the behaviors of the people have always been decisive. This has been
able to resolve the mutual conflicts of the people10.

The current scene regarding the Restorative Justice in the country can be understood in the
following heads:

5.1 Inadequate Legal Basis:

The Restorative Justice in the Indian criminal jurisprudence is almost non-existent. This is
mainly due to the fact that the system of criminal justice in this country is hardly a victim-
oriented one (Bajpai, 1997). The progress made in the spheres of victimology is yet to reach to
the criminal justice practices in this country. There is no separate law in this country enabling the
victim to have their say in the criminal justice process. The compensation, restitution and
restoration are still not very common here. The main reason is perhaps that the procedural law in
the country does not provide much scope for these practices. As regards compensation, some
highly inadequate and restricting provisions are available in the Sections. 357-58 of the Criminal
Procedure Code, 1973. The procedure to get the prescribed compensation is too cumbersome to
practically help the victim. The amount of fine imposed on the offender, the main source of
compensation, has remained unrevised since 1860, the year when the Indian Penal Code was
enacted.

5.2 Compoundable Offences:

9
http://www.forensic.to/webhome/ (Accessed on 10 Dec 21)
10
http://www.forensic.to/webhome/ (Accessed on 10 dec 21)
 P a g e | 10

The victim and offenders can reach to settlement of the matter in accordance with the Section.
320 of the Criminal Procedure Code, 1973. This procedural law allows the parties to undergo
what is called “compounding of cases” in certain offences without the permission of court and in
some cases with the approval of the court. The compounding of the offences has connotations to
what is now popularly being voiced as “Restorative Justice”. There are some offences which
affect individuals and do not affect the society. This type of offences can be compounded
without the permission of the court under the sub section (1) of Section. 320 of the Criminal
Procedure Code, 1973. The offences under this category are: hurting religious feeling of a
person, hurt, confinement, mischief, criminal trespass, adultery, defamation etc. The offences
under sub section (2) of this law contains those offences which are of grave nature and likely to
affect people at large. These cannot be compounded without the permission of the court. The
offences under this class include: grievous hurt, wrongful confinement, misappropriation of
property, breach of trust involving heavy amount, fraud, counterfeiting, offensive behavior
towards women etc. The offences reached to successful compounding always result in acquittal.
It does not attach any condition of restoration/reparation of harm afflicted. In the name of
restoration, recently higher courts in India have given verdicts in favor of the victims.

6. DEBATE:
proponents of restorative justice need to convince us that their vision of a future where
punishment is marginalized and restorative justice is the norm is more than an appealing but
impossible fantasy. Some, however would insist that it is in fact a dangerous fantasy.

The proposal that the community should take the lead in deciding what should be done about a
criminal incident is highly problematic. Communities, even small, tight-knit communities, are
not the homogenous units which many suppose them to be. Rather, they contain hierarchical
social arrangements based on considerations such as wealth, gender, race, ancestry and family
connections, and acquired authority. Restorative Justice Practices Are prone to Capture by the
Dominant Group in the Restorative Process. There may be that type of discrimination among the
poor. By this weaker party can become more weaker. Restorative Justice Practices Can
Disadvantage Women, Children, and Oppressed Racial Minorities. Disadvantaging of the
powerless can occur through treating them harshly or through silencing them. In some areas
 P a g e | 11

women are treated subordinate to their male counterpart. Judgement based on Restorative justice
ideas in these areas can be biased.

In a restorative process of justice system such an alternative body or agency is required to be

constituted for the reparation process but how far such bodies or agencies would satisfy the
perceived goal in effectuating the restorative justice system is subject to repeated inquiries and
evaluations as well. Like For instance, the incident of January 20146 in West Bengal about the
decision of rape in Salishi Sabha [say Kangaroo Court] where participation in community
framework was self-styled for restorative process but the decision has undermined the public
confidence in such restorative process of justice.,,,,, Since one of the goals of restorative justice
is to divert the offender from the criminal justice system, this may lead to a perception that
sexual assault and domestic violence will be treated less seriously and lead to more entrenched
behavior on the part of offenders. The incident of April 3, 2014 the decision of such community
led victim housewife to commit suicide setting herself ablaze as the victim was prevented from a
filing a police complaint about the rape wherein the reason substantiated by such sabha was that
the rapist has apologized to victim. The underlying possessive character of such operating agents
in capturing such power-steering in the guise of rendering restorative process within such local
community would be to take a control on it and again may adversely affect the noble pursuits of
justice and harmonious order in such restorative process11.

Most of those involved in the administration of judicial punishment openly acknowledge that it is
particularly harmful to those on whom it is imposed. Hence, considerable importance is attached
to providing those suspected of crime with protection from undeserved conviction and
punishment.

Critics of restorative justice practices says that it relies on a kind of community hat is culturally
inappropriate to industrialized societies.

Most victims of crime are victims of white-collar crimes without ever coming to realize this. The
restorative justice has nothing to offer the overwhelming majority of citizens who are actually
victimized by crime. Restorative justice process is very time consuming, so victim and offender
both get frustrated.
11
Shubhneet Inderjit Kaur Karandeep Kaur, “Restorative Justice & Weaker Sections” available at:
http://www.legalservicesindia.com/article/623/Restorative-Justice-&-Weaker-Sections.html
(Last visited on December 10, 2021)
 P a g e | 12

Restorative Justice Practices Can Increase Victim Fears of Revictimization

Restorative Justice Practices Can Oppress Offenders with a Tyranny of the Majority, Even a
Tyranny of the Lynch Mob.

7. CONCLUSION:
The traditional criminal justice system focuses on crime prevention, crime reduction, punishing
law breakers, and on offender rehabilitation with an attitude of deterrence and retribution.
Restorative Justice in the criminal justice arena is a paradigm shift from the traditional justice
system. It is victim centered justice/victim-oriented justice, giving victims the opportunity to
express their concerns over the crime and the offender. The time factor in disposal of cases is
another area of concern where the criminal courts are obsessed with huge arrears and backlog of
cases for adjudication. The cost incurred in criminal justice process is also a deteriorating factor
which needs a change for its reduction. The implication of restorative principles will manage
both the time factor and cost factor in a significant way by avoiding the long court procedures
and involving the mediators of their (parties) choice. The Restorative Justice principles are
sometimes characterized as informal justice, as it lacks proper rules and regulation for its
implementation.

The claim of Restorative Justice advocates that Restorative Justice as an alternative to the
conventional criminal justice system can be supported on optimistic accounts. But instead of
using it as an alternative, it can be utilized in addition to the existing criminal justice process.
With regard to India, protection and redress for victims of crime must become a primary
concern. Incorporating into Indian law the established principles of Restorative Justice could be a
significant step towards this goal.

8. BIBILIOGRAPHY
 P a g e | 13

BOOKS
Marian Liebmann, “Restorative Justice How it Works”, Jessica Kingsley Publications
(2007)
Howard Zehr and Ali Gohar, THE LITTLE BOOK OF Restorative Justice (Good Books,
Pennsylvania, USA, 2003)

ARTICLES

Time to think about Restorative Justice: Anil Xavier, available at Time to think about
Restorative Justice (arbitrationindia.com)
Challenges in restorative justice https://www.researchgate.net/publication/295396295

ANALYTICAL_STUDY_ON_RESTORATIVE_JUSTICE
https://www.academia.edu/6404666/
Current Debates over Restorative Justice: Concept, Definition and Practice Current
Debates Over Restorative Justice: Concept, Definition and Practice by Masahiro Suzuki,
Hennessey Hayes :: SSRN

Website
Restorative justice. (n.d.)., available at
http://restorativejustice.org/restorative-justice/aboutrestorative-justice/tutorial-intro-to-
restorativejustice/lesson-4-conceptual-issues/rights-andresponsibilities/
#sthash.VNuy44BY.dpbs (last visited on December 12, 2021)
Corissajoy. (2020, August 21). Restorative justice. Beyond Intractability., available at:
https://www.beyondintractability.org/essay/restorative_justice (last visited on December
12, 2021)