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Restorative Justice: Concept And Scope In India

Restorative justice is a wide word that encompasses a variety of initiatives. But there is no consensus on a specific definition of "restorative justice". A popular definition given by Tony Marshall defines "restorative justice" as "a process whereby all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future"[1].

On similar lines, Zehr lists three major objectives of the system of restorative justice. Firstly, this system aims to put the power to decide on the people "most affected" by the crime[2]. Second objective of this system is to "repair" the harm caused because of the crime[3]. And thirdly, it aims "rehabilitation" of the offender[4]. One characteristic feature of his theory is that the process is not limited to the "victim", but includes all who are "most affected" by the crime.

However, much like the dominant form of criminal justice system where state is given the primacy, the victims' involvement or satisfaction is not given much weightage as a criterion of restorative justice. It is often called that the "restorative justice" model involves four parties viz. the "victim", the "offender", the "society" as well as the "government"[5]. However, as was the case with the traditional model, the concerns and needs of the victim is dwarfed by that of the society and the government. Although a role is provided to the victim or her representative, but a greater role is provided to the other parties leaving the victim with a sense of deep injustice[6]. Such is the case with many criminal justice systems across the world.

The "criminal justice system" in India is also somewhere afflicted with this problem of lack of effective victim involvement. Although the criminal procedural laws in India do not mention the principle of restorative justice, some provisions of such laws provides some features of this model. Further, many of such provisions were not part of the original laws. They have been introduced through many amendments which were passed because of a growing awareness of victim as a stakeholder[7].

This paper examines the extent of victim satisfaction and participation that these scattered provisions of the "Code of Criminal Procedure 1973" provide for and whether they achieve their objective of providing some features of the restorative justice model. This paper looks into the idea of restorative justice and explores the various methods which are prevalent around the world. This paper also looks into various legal provisions in India which implements the restorative justice model in the country.

In This Regard The Following Questions Come Up Which Need Answers:

  1. What does the idea of "restorative justice" means?
  2. Is the idea of "restorative justice" embedded in the India society and law?
  3. What are the various methods provided by the "Code of Criminal Procedure 1973" which are in tune with the idea of "restorative justice"?
  4. Is the victim being given enough attention under the "Code of Criminal Procedure 1973" (which is an essential of "restorative justice")?

The Idea Of Restorative Justice

What is restorative justice?

"Restorative justice" is a process that involves as many people as possible who have a stake in a specific crime in order to "identify" and "address" harms, needs, and obligations in order to heal and make things right.[8] According to this concept a wrongful act/ crime is done against an individual so there is need to focus on that particular individual rather than state displaying itself as a major victim.

The Conventional "criminal justice system" mainly poses three questions:
  1. Which law has been broken?
  2. Who broke the law? and
  3. What punishment do they deserve?
But from a restorative point of view different set of question is asked like:
  1. Who has been hurt?
  2. What are their needs?
  3. Whose obligation are these?[9]

So basically Crime occurs when people inflict harm on one another and violate their relationships. People who are expected to live in peace and tranquillity within the community break those implicit promises and commit acts that harm the social justice guaranteed to us by this constitution. Restorative justice is based on the concept of 'Creative Restitution,' which was developed by psychologist Dr. Albert Eglash[10].

This system is distinguished by the presence of "humanity" as well as "accountability". In creative restitution, the offender is required to find ways to make amends to the victims of his actions and to walk a "second mile" with other offenders. Not only is the offender held accountable to those he has harmed, but he is also obligated to change the other offenders.It aims to compensate victims for their losses by attending to their needs, as well as to address the concerns of the offender, who is given the opportunity to reform himself and reintegrate into society.

What Entails Restorative Justice?

"Restitution" is not a novel concept in the realm of punishment. It has been around since the dawn of time. However, when acts and omissions against widely accepted society behavior were classified as crimes or wrongs, reparation was reserved for civil wrongs and punishment was meted out for crimes. Thus, while restitution is frequently used to address civil wrongs, Dr. Albert Eglash advocated for its use in criminal instances as well.

"Restorative justice" involves all parties engaged in the offense, including the victim, the state, the judiciary, and the perpetrator. It recognizes their needs and viewpoints in order to work collaboratively to fix and deal with the situation that has occurred as a result of the offender's actions. Everybody stakeholders convene to examine the ramifications of the offender's injustice and agree on a course of action that benefits all. It is founded on the optimism principle, which claims that compelling the perpetrator and victim to sit together and express their emotions benefits both parties.

This is intended to compensate the victim for their loss, to fix the causes of the offender's crime, and to reassure society that the offender has been healed and is no longer a threat to society. As a result of the procedure, the criminal has been healed and is no longer a menace to society.

Above all, this view asserts that crime is perpetrated against individuals, relationships, and emotions rather than against society. It is a violation of one person by another, as retributive justice believed, and is likely the only point of agreement between retributive and restorative justice.

However, restoration is future oriented because it is concerned with resolving the problem created by the offender's acts in the future. As a result of the procedure, the criminal has been healed and is no longer a menace to society. On the other hand, retributive justice looks to the past to prove responsibility and punishes the offender only for the deeds performed by him. As a result, it becomes a responsibility to remedy wrongs.

It frequently brings victim and offender together to discuss victimisation, how they have been harmed, their motivations for committing crime, and how to create a route that benefits everyone. As a result, rather than being punitive, it is a solution-oriented strategy that benefits both offender and victim. Thus, it acknowledges the victim's requirements, which the Indian Criminal Justice System has been accused of failing to address on countless occasions.

On the same lines, Justice Wadhwa has stated that "criminal justice would look hollow if justice is not done to the victim of the crime. A victim of crime cannot be a forgotten man in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injuries. An honour which is lost or life which is snuffed out cannot be recompensed but then compensation will at least provide some solace"[11]. To compensate and restitute the victim becomes the most important duty of every criminal justice machinery across the world.

Process Of Restorative Justice

Restorative Justice's fundamental principles are implemented in a variety of ways and models.These efforts are centred on "resolving" the victim's/aggrieved party's harm, involving "all parties affected by the crime or civil wrong", "empowering victims", and "facilitating dialogue among various stakeholders".

Dialogue Between Victim & Offender:

It is one of the best ways to show how restorative justice works, and it has gotten a lot of attention around the world. A trained mediator helps the "victim" and the "offender" meet face-to-face in order to come up with a plan to repair any damage caused by the crime or civil wrong that happened.

Conferencing:

Conferencing refers to the discussions in which the victim and offender reach an agreement on redress, which may include financial restitution, symbolic restitution tailored to the victim's needs, "community service", "offender therapy", or any other agreed-upon undertaking to repair the victim's harm caused by the offender

Forming Restorative Circle:

Restorative circles bring stakeholders together to communicate and listen to one another.Participants should form a circle and give each person an equal opportunity to speak during the discussion. In these Circles, individuals can discuss the impact of the crime/civil wrong on the victim, their families, and the community, as well as the restitution for the same.

Restorative Justice In India

The presence of some instances of "restorative justice" in India's "adversarial criminal justice system" attests to the presence of some instances of "adversarial justice" in the "Indian criminal justice system". Except in specific instances where the "onus of proof" is on the accused, the accused is "presumed innocent" unless proven guilty. Alternatively, the prosecution is responsible for establishing the defendant's guilt beyond a reasonable doubt.

The entire premise is predicated on the principle that presuming guilt purely on the basis of the victim's allegations can result in irreparable injury to the accused who has not been found guilty through the judicial process. Thus, it aims to shield the accused from the suffering of society for committing an unproven crime, as well as the stigma that can be extremely costly to him and his family.[12]

This is precisely the premise for affording the accused so many safeguards. According to Blackstone, "it is better that ten guilty people escape than that one innocent person suffer. "In the case of Sanjeev Nanda[13], the Court said that "wherein the accused ran over six people including three policemen, the sentence of convict was reduced to the time he served in the jail and was further given two years of community service."

In Anupam Sharma v NCT of Delhi and Another[14], the "Delhi High Court" said that restorative justice can be used interchangeably with mediation. Purpose of "Restorative justice" and nature are to restore the "victim's interest". Participation of the victim in the "settlement" process is encouraged in restorative justice. It is a voluntary process of negotiation and collaboration between the offender and the victim, either directly or indirectly. According to the "Gujarat High Court", in the realm of "victimology", this decision is one step toward fulfilling the design and desideratum of restorative justice for victims of crime[15].

In Manohar Singh v State of Rajasthan and Ors[16] the Supreme Court said that the whole point of Section 357 the "Code of Criminal Procedure 1973" is to make sure that the interests of the victims are taken into account in the "criminal justice system". Sometimes, the situation is so bad that it doesn't make sense to keep a person in prison. Instead, directing the accused to pay some money to the victim or the person who was hurt due to the crime can make sure that total justice is served.

Through all these we come to know that though India doesn't have a "restorative justice system" but have multiple pockets within the laws following its principle which will be further discussed in detail. They include various systems like "Panchayat system", "Lok Adalat", "Arbitration" etc.

Panchayat System

The Panchayat system has existed in India since ancient times as a method of resolving disputes. Referring matters to a "Panch" or "Panchayat" has been a natural way of resolving a variety of disputes. The word "Panch", which meant "arbitrator", was well known among the villagers. Village Panchayats are an ancient and "traditional" institution in India.

In general, a "Panchayat" is an assembly of "village elders" and respected residents. A panchayat is a five-person body, and a pancha is a member of that body. Sarpanch is the title given to the Pancha's leader.

Village "Panchayats" were territorial in nature, whereas sectarian "Panchayats" included members of many castes and creeds. "Panchas" was divided into three grades: "Puga—a council of people from many sects and tribes who dwell in the same area"; "Sreni—a gathering of traders and artisans from other tribes who are somehow connected"; and "Kula—a council of clan members".

The "Panchayat system" originated from the ancient notion of arbitration. Prior to the British era, villagers could not approach their king's court and plead for justice, and judicial authority was never vested in or exercised by them. Villagers used to agree under these circumstances to refer their conflicts to a panel of five village elders, whose collective decision they accepted without reservation.

In the absence of serious bias or misconduct, the Courts have generally accorded recognition and credibility to "Panchayat" findings and awards. For example, in Sitanna v Viranna[17], the Privy Council upheld a Panchayat decision in a family dispute after approximately 42 years.

Due to the complexities created by advancements "in social and economic spheres", the "Panchayats" became ineffective, insufficient, and obsolete. Nonetheless, variants of these traditional arbitral bodies are prevalent throughout India's rural and tribal areas. Panchayats continue to exist among STs and BCs, where they wield considerable influence over a variety of social and caste issues.

It is worth emphasizing that a "Panchayat" currently refers to an arbitration tribunal created by the parties, whereas a Pancha refers to an arbitrator. If the parties agree, Sarpanch may act as an umpire. The Gram Nyayalayas Act 2008 formalized the Panchayats' informal practices inside communities.

"Gram Nyayalayas" are established at the grass-roots level by the Act. The Act's objective was twofold: first, to offer residents with convenient "access to justice"; and second, to ensure that no citizen's right to justice is denied owing to social, economic, or other disadvantage. The Act intends to establish courts in every Panchayat or group of Panchayats across the country. The judge of this court is known as a Nyayadhikari, and the court itself is known as "Gram Nyayalaya".

The "Nyayadhikari" will be a "Junior Civil Judge" as well as a Magistrate. Additionally, the judge will be assisted at such mediations by a panel of official conciliators. In terms of aims, procedure, and jurisdiction, this court's operation will be separate from that of existing courts.

The "Nyayalaya" will be highly mobile, able to conduct its business in an indigenous setting, close to witnesses and evidence, and in the indigenous language. Gram Nyayalaya is the latest in a series of structural changes to the Indian judiciary. In contrast to the conventional emphasis on adversarial trials, the "Gram Nyayalaya" appears to be a fusion of many special courts' purposes.

Lok Adalat

Under the National Legal Service Authority Act 1987, the Lok-Adalat system is a uniquely Indian approach. The State's constitutional obligation to provide "legal aid", prompted by Supreme Court of India decisions, resulted in the formation of a "Committee for Implementing Legal Aid Schemes (CILAS)". "Lok Adalat" derives its legal legitimacy from the Legal Services Authorities Act, 1987, and is commonly referred to as the "People's Court".

This is a "non-adversarial system" in which mock courts (referred to as "Lok Adalats") are held on a periodic basis by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee for the purpose of exercising their respective jurisdictions.

These are typically presided over by retired judges, social activists, or attorneys. They lack jurisdiction over non-compoundable offences. There are no court fees and no rigid procedural requirements (i.e., no requirement to follow the Code of Civil Procedure 1908 or the Evidence Act 1872), which expedites and streamlines the process. Parties can communicate directly with the judge, something that is not possible in traditional courts.

A case may be transferred to a "Lok Adalat" if one party petitions the court and the court believes there is a possibility of settlement after giving the opposing party an opportunity to be heard. "Lok Adalats" place a premium on compromise.When a settlement cannot be reached, the case is remanded to the court. If, however, a settlement is reached, an award is made that is legally binding on the parties. It is enforceable through a civil court decree.

A critical point is that the award is conclusive and cannot be appealed, not even under Article 226[18] as it is a consent judgement. All "Lok Adalat" proceedings are deemed to be judicial in nature, and each "Lok Adalat" is deemed to be a "Civil Court". The primary requirement of the Lok Adalat is that both parties to the dispute agree on a resolution, that the decision is binding on the parties, and that its order is enforceable through legal process."

"Lok Adalat" is extremely effective in resolving financial disputes, such as partition suits, damages claims, and matrimonial cases. Lok Adalat is regarded as a boon to public litigants, as it enables them to have their disputes resolved quickly and without incurring any costs.

Containing and restricting the Lok Adalat's jurisdiction is extremely difficult, as most cases are resolved amicably through the process.

The cases that are most suited to the Lok Adalats' functions and are most likely to be perceived as effective and desirable include the following:
  • Landlord-tenant disputes involving the enforcement of rent and vacating the premises.
  • Compoundable offences.
  • Accidents involving motor vehicles.
  • Matrimonial cases, which include those involving property given in marriage, debts, securities, guardianship, child custody, and divorce proceedings.

The jurisdiction of the "Lok Adalat" is viewed as a "success of democracy" because it is a relatively "new" and "cost-effective" method of providing justice "locally", by local professional people, in close proximity to the source of the conflict and its resolution. In indigenous and traditional terms, it can be described as justice paying a visit to your location to bestow blessings.

A "Lok Adalat" conveys a sense of justice and fairness alongside a sense of compromise, establishing a balance and embracing the notion of' restorative practice.' Cases stemming from non-state transactions are delivering favorable results in "Delhi", "Gujarat", "Jaipur", "Jodhpur", and "Udaipur", as well as in select regions of "Uttar Pradesh".

People have reported satisfaction and tranquility following resolution, and even if the judgment is not in their favor, they have no grievances because the process is regarded to be free of prejudice, bias, and vengeance.

Arbitration and Conciliation

The Arbitration and Conciliation Act 1996 establishes mechanisms for resolving disputes through arbitration, mediation, and conciliation. As a result, it enables affected parties to participate in and resolve disputes amicably. These procedures are becoming increasingly popular for resolving contract and partnership disputes. Additionally, courts throughout India have established mediation centres to shorten the duration of cases and promote swift resolutions by assisting parties in reaching their own resolutions.[19]

Under the Juvenile Justice (Care and Protection) Act 2015

The Act establishes a number of alternative sanctions, including counseling, community service, and a fine. Probationary release in exchange for good behavior and placement in a facility or special home to provide reformative services. Additionally, the Board appointed pursuant to the 2015 Act may issue additional orders ordering the kid to attend school, a vocational center, or a therapeutic center, or barring the child from accessing a specific site. These provisions are consistent with international instruments emphasising diversionist techniques for offenders' reintegration into society.

It categorises offences under non serious petty offences, serious and heinous offences. In the case of petty and serious offences, the initiative can be taken to familiarise children who commit these offences with the "sufferings" of the "victims" of their actions. They do not have to be their own victims; they can also be those in a similar situation.

This actually assists these children in comprehending the consequences of their delinquency and their impact on the lives of others, as well as the importance of making amends, which can ultimately result in their reformation. Similarly, if the crime was committed by a "first-time offender" or in the "heat of the moment" or out of "necessity", or in circumstances where "defences or specific exceptions are available", restoration can be used in lieu of any punishment, however minimal.


Restoratice Jutice In Indian Criminal Procedural Law

The Code of Criminal Procedure 1973 has some rules that are based on restorative justice. Because of this, the victim and the people who harmed her are encouraged to come to an agreement. Among the important rules:

Plea Bargaining

The Sections from 265A-265L of the "Code of Criminal Procedure 1973" contain provisions for 'Plea Bargaining.' As a result, the prosecution saves time that would have been spent proving those charges, and both the victim and the offender avoid the court's sluggish process. The other advantage is that the offender will receive a lenient sentence if he/she admits guilt, whereas in other cases, the offender would have faced the punishment after proving the charges in a lengthy trial.

Compoundable offence

Section 320 of the "Code of Criminal Procedure 1973" allows for the compounding of an offence. It is applicable only to the offences listed in the section. The Code makes the section applicable to a broad range of offences (carrying a maximum sentence of seven years imprisonment), but excludes socioeconomic offencesand offences related to women and children.

Compensation

It provides for a court order requiring the victim to be compensated. It states that when a court imposes a "fine" as the prescribed "punishment" for a particular offence, the court may order that the fine be paid to the victim to cover prosecution costs or as compensation for the victim's loss as a result of the offence. Compensation is payable for both property crimes and crimes against the human body.Additionally, pursuant to Section 357A the "Code of Criminal Procedure 1973", each "State Government", in consultation with the "Central Government", shall develop a "scheme providing funds for compensation to victims/dependents" who have suffered loss/injury as a result of a crime and require rehabilitation.

Probation

Section 360 the "Code of Criminal Procedure 1973" empowers the court to order the release of an offender on probation after he or she demonstrates good behaviour or after being admonished and directed to maintain good behaviour.

Restorative Justice And The Victim: A Critique

In the adversarial form of trial prevalent in India, the victim (or her representative) had no or very limited role apart from being a mere witness. The primary reason for keeping the victim completely out of the trial process is meant to ensure that the trial does not become a vindictive duel and they are only considered as private parties[20]. However, it is completely undesirable for keeping the victim out of trial proceedings and restorative processes.

However, with the idea of "restorative justice" gaining more and more space in the discourse, the focus is now to correct this anomaly, although very slowly. The victim's misery in the "criminal justice system" has been well studied since the 1970s, but in the last couple of decades, victims and their considerations have taken a more important position in the development of both "domestic and "international criminal justice systems". In general, such improvements have been warmly received and have proven to be rather uncontroversial. They are thought to stem mostly from the victims' newfound status as criminal justice service users.

Two significant aspects of these efforts forrestorative justice are participation of victims and healing of the crime[21]. Therefore, the two important aspects which need immediate focus is the participation and rehabilitation of the victims. It is from these features that we can discern features of restorative justice.

Participation of Victims

One of the essential feature to make the criminal process more oriented towards restoration is by listening to victim i.e. the person who has borne the immediate burnt of the criminal activity. It is essential for proper restoration that the victim has control over the decision making[22]. By ensuring such participation, they become more empowered than that when they become just a mute spectator as is the case with traditional adversarial system. Studies have shown that most victims prefer "bilateral settlement"and seek intervention of third party only on cases where its not possible to do so[23].

It was only with the amendments to criminal law in 2008 that the victim found any mention in the criminal justice system[24]. Section 2(wa) of the "Code of Criminal Procedure 1973" defines victim as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir".

However, the definition provided by this clause is very narrower when compared with the definition adopted by the United Nations Organisation which defines victims "as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws prescribing criminal abuse of power"[25]. The definition provided by the Code fails to define the kinds of injury that might afflict the victim and therefore hands a great deal of discretion to courts to decide as to who is a victim in each case.

Further a proviso was added to the section 24(8) of the Code to provide the victim with the right to have an advocate in the hearing. But this right is subject to "court's permission". And further, that advocate has only got to "assist the prosecution" and cannot go beyond that[26]. The Supreme Court interpreted the term "assist" not to include parallel prosecution and said that the victim's counsel "cannot" examine or cross-examine the witnesses or provide evidence. All of its pleadings need to be submitted to the Prosecutor who has the option of not considering them[27].

The Supreme Court in the case of Rekha Murarka[28] forfeited a chance to advance victim justice jurisprudence and correct legal flaws. Instead, the decision contradicts the preceding jurisprudential trend.

The right to participate of the victim cannot be protected by curtailing the "rights of the accused". The right to participate, on the other hand, can be realised without discrimination at the proper phases. Rather of examining such a "normative balance" between the rights of the accused and the rights of the victim, the ruling restricts the victim's rights by relying on a faulty interpretation of the function and obligations of the victim's advocate.

According to the ruling, a victim's advocate's right to participate cannot be granted because, first, the victim's counsel's insistence on questioning a witness deliberately left out by the prosecution may weaken the prosecution's case; second, the trial will devolve into a "vindictive battle" between the victim's counsel and the accused; and third, the victim's counsel's lack of experience may result in lapses[29].

In adopting this line of reasoning, the Court has conveyed that it considers that unless the victim's advocate is submissive to the prosecutor, the prosecutor will either become ineffective or the victim's advocate will usurp the prosecutor's job. However, it must be borne in mind that the victim's participation in the trial is crucial to the prosecution's success. As a result, the victim's advocate's principal function and obligation is to represent the victim's personal interests while collaborating with the prosecution.

Further, the Court here assumes that prosecutions properly consider the requirements of victims, ignoring the fact that the necessity for private counsel emerges because of prosecutorial mistakes which directly result in unfairness to the victim, whether deliberate or inadvertent.

Further, the remedy of appeal to higher courts, although made available by amendments, is limited in case the victim wants to do so[30]. The Supreme Court has clarified that the victim has a right to appeal, regardless of grant of leave, only on order of acquittal, or conviction for a "lesser offence" or order imposing "inadequate compensation" and not on inadequacy of sentence[31]. By restricting this valuable right to appeal in higher Courts, the requisite participation of the victim is being curtailed.

Victim Rehabilitation

A very important objective of any restorative model is to "repair" the consequences of the crime. In this direction victims' rehabilitation holds a great significance. But sadly this has not been a major focus of the "traditional criminal justice system" which only believes in "retribution" as a method of "prevention" of crimes. A very important aspect of rehabilitation is the compensation (in monetary terms) which is to be granted to the victim.

In this regard, before the enactment of the "Code of Criminal Procedure (Amendment) Act 2008", the compensation scheme heavily depended on the fines that were collected from the convict[32]. And it was distributed only after the accused the exhausted all her "legal remedies" including "appeal to higher courts"[33]. Further, it was purely at the discretion of the courts and was available only if the courts imposed a fine on the accused[34]. Further, another problem with such provision was that the compensation amount depended on the amount of fine collected from the convict[35]. If the convict is not economically well off and the amount of fine can't be collected from her, then the victim would bear the brunt.

From a historical perspective, Section 545(1)(b) of the "Code of Criminal Procedure 1898" included a provision for "restitution", under which "the Court could order payment of compensation to any person for any loss or injury caused by the offence if in the opinion of the Court, such a person was entitled to substantial compensation". It happened only in a civil court. In its 41st Report in 1969, the "Law Commission of India" suggested that the term "substantial" be removed. The "Criminal Procedure Code Bill, 1970", based on these recommendations, with the goal of amending Section 545 and reintroduced it as Section 357, as it is today.

In light of such practical difficulties, a debate started on making the state responsible for paying compensation to the victims of crimes for their rehabilitation. This debate got further a boost with various judgments of the courts recognizing the right to compensation for violations of "Fundamental Rights" by state and its "instrumentalities"[36]. The idea was that by being the victim of a crime, the victim's "Fundamental Rights" (particularly those under Articles 14 and 21[37]) is getting violated as the state is neither able to protect the victim from crime nor rehabilitate her.

With the present ideas establishing a "distinction" between "civil" and "criminal" law, in which "civil law" provides for remedies to award "compensation" for "private wrongs" and "criminal law" is responsible for punishing the wrongdoer, the legal position that emerged until recently was that criminal law did not need to be concerned with compensation to victims because compensation was a civil remedy that fell under the jurisdiction of "civil courts". This traditional viewpoint has undergone a significant shift in recent years, as communities throughout the world have increasingly believed that victims of crimes are being disregarded.

As a result, legislation has been passed in several countries, including "Canada", "England", "New Zealand", providing for restitution/reparation by criminal justice courts. The "Criminal Injuries Compensation Scheme 1964, is arguably the first to establish a distinct "statutory" scheme for "victim compensation" by the state.

It was in the context of such developments that the Code was amended to provide the victim with a right to compensation. The 2008 revisions to the Code focused largely on the "rights of victims" in criminal cases, particularly those involving "sexual offences". Though the 2008 amendments did not change Section 357, they did add Section 357-A, which allows the Court to order the State to pay "compensation" to the "victim" if the compensation awarded under Section 357 is insufficient for rehabilitation or if the case ends in acquittal or discharge and the victim must be rehabilitated.

Even if the accused is not convicted, but the victim requires rehabilitation, the victim may obtain compensation from the State or "District Legal Services Authority" under this clause. Further, it also provides for provision for "free and immediate medical facility" to the victim[38].

However, the provisions give a wide discretion to the "District Legal Services Authority" and the courts without specifying any guidelines for such disbursement. This element of awarding "compensation to crime victims" comes up very often, and there are various judgments on this. The same may require some elaboration in order to bring to light certain factors that need to be addressed by the courts through proper guidelines. However even the Supreme Court has accepted that the area has remained unclear and disregarded by courts at various levels in this country notwithstanding numerous judicial pronouncements[39].

In light of these difficulties, the sections 357B and 357C were introduced in the Code[40]. With the said amendments, the victims of certain crimes were given a right to compensation "in addition to fines"[41]. The state has to mandatorily provide the victims with compensation as the clause uses the term "shall"[42]. The offences mostly include that of "rape", "acid attack" and other such offences[43]. The other section provides for immediate medical care to such victims[44].

Conclusion
Although the ideas of restorative justice were traditionally embedded in the "Indian way" of conducting political and governmental activities, with the arrival of British laws they got diluted in favour of a model of retributive justice. From a system where victim was an integral part of overall process, the victim was relegated to a mere "witness" who is a passive observer of the whole process. Even the Supreme Court has admitted that a lot needs to be done in the area of "victim jurisprudence"[45].

Even if substantial development has happened in India on the field of "victim justice" i.e. system where victim and her care is considered to be an essential element of the overall process, we have to go a long way before we can claim that we have effective participation and rehabilitation of the victim.

Various treaties demand that "member States" treat victims fairly and respectfully by providing them with "information", "c0onsulting them at appropriate phases" of the "criminal justice process", ensuring "victim participation, and ensuring their safety"[46]. However, there is, nevertheless, substantial evidence that "Member States" have only partially implemented them[47].

In actuality, the only way for victims to engage in the "criminal justice system" is through "restorative justice programmes", which is unacceptable. While restorative justice should be open to individuals who choose to meet with the offender, victim surveys demonstrate that not all victims want to participate in mediation[48] and they must be "notified, consulted, and taken into account" by authorities. Whether the criminal is offered "community service" instead of mediation or is sentenced to prison, the "only" way for victims to engage in the "criminal justice system" is through "restorative justice programmes".

End-Notes:
  1. Tony F Marshall, Restorative Justice: An Overview(Great Britain Home Office 1999) 5.
  2. Jo Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative Justice: How much Involvement are Victims Looking For?' (2004) 11 International Review of Victimology 259.
  3. ibid.
  4. ibid.
  5. D Van Ness and KH Strong, Restoring Justice (2nd edn, Anderson Publishing 2002).
  6. Tony (n 1).
  7. The Code of Criminal Procedure (Amendment) Act 2008; The Criminal Law (Amendment) Act 2013.
  8. R Thilagaraj and Jianhong Liu, Restorative Justice in India (Springer 2017).127.
  9. ibid
  10. Akanksha Marwah, Restorative Justice And Reformation Of Offenders (2020)ILI Law Review159
  11. Akanksha Marwah, Restorative Justice And Reformation Of Offenders (2020)ILI Law Review 160
  12. Akanksha Marwah, 'Restorative Justice and Reformation of Offenders'(2020)ILI Law Review 165.
  13. Sanjeev Nanda v The State Crl Appeal No 807/2008
  14. 146 (2008) DLT 497
  15. State of Gujarat v Raghav Bhai Vashrambhai and Others (2003) 1 GLR 205.
  16. AIR 2015 SC 1124.
  17. AIR (1934) PC 105
  18. The Constitution of India 1949, Art 226
  19. Ajay Pal Singh, 'Restorative Justice and the Legal System: An Indian Perspective' (2021) 23 Supremo Amicus [600].
  20. Jonathan Doak, 'Victims' Rights in Criminal Trials: Prospects for Participation' (2005) 32(2) Journal of Law and Society 294.
  21. John Braithwaite, 'Restorative Justice and De-Professionalization' (2004) 13(1) The Good Society 28.
  22. Jo-Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative Justice: How Much Involvement are Victims Looking For?' (2004) 11 International Review of Victimology, 259.
  23. ibid
  24. The Code of Criminal Procedure (Amendment) Act 2008.
  25. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [1985] Resolution No 40/34.
  26. Rekha Murarka v State of West Bengal Criminal Appeal No 1727 of 2019.
  27. ibid.
  28. ibid.
  29. ibid.
  30. The Code of Criminal Procedure 1973, s 372.
  31. Parvinder Kansal v State of NCT of Delhi AIR 2020 SC 4044.
  32. The Code of Criminal Procedure 1973, s 357.
  33. ibid.
  34. ibid.
  35. ibid.
  36. Rudul Shah v State of Bihar AIR 1983 SC 1086; Nilabati Behera v State of Orissa (1993) 2 SCC 746.
  37. The Constitution of India 1949.
  38. The Code of Criminal Procedure 1973, s 357A(6).
  39. Ankush Shivaji Gaikwad v State of Maharashtra (2013) 6 SCC 770.
  40. The Criminal Law (Amendment) Act 2013.
  41. The Code of Criminal Procedure 1973, s 357B
  42. ibid.
  43. ibid.
  44. ibid.
  45. Rattan Singh v State of Punjab AIR 1980 SC 84, per Justice Krishna Iyer.
  46. The UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 19985.
  47. Jo Anne Wemmers and Katie Cyr, 'Victims' Perspectives on Restorative Justice: How much Involvement are Victims Looking For?' (2004) 11 International Review of Victimology 259.
  48. ibid.

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