ON THE THEORY OF

RETREBUTIVE PUNISHMENT
AND FEASBLITLY
A Critical analysis of the theories of punishments

Abstract
To understand the crux of the theories such as retributive and restorative justice. To see and
understand if it a systemic change might bring about a change for the better.

Rahil Hussain
2nd Year B.A LL.B
Introduction
Crime exists in every society. Every modern democratic society, through legislature, defines
certain act which is regarded as criminal and provides for punishment against such individual who
is responsible for commission of such acts. Punishment is given to the offenders with the aim to
curtail them from committing such acts again. The punishment by the state is lawful, as it is
recognized by the society. State carries these functions through the mechanism for administration
of justice. Administration of justice is one of the primary functions of the state. It is carried out by
an independent organ and authority of the State, namely, Judiciary.

A Criminal justice system is the system by which society first determines what will
constitute a crime and then identifies, tries, convicts and punishes those who have violated the
criminal law. The system of administration of justice is to determine the truth. To ascertain truth,
certain rules are followed which facilitates in arriving at the truth. These rules are called as the
basic principles of criminal justice system.1

There are two systems followed in different parts of the world namely, Adversarial system
and Inquisitorial system; as far as criminal justice Administration is concerned in all the
democratic countries. In Adversarial system the accused gets a fair chance to defend himself. Here,
the accused is presumed to be innocent and the prosecution has the burden to prove the accusation
beyond reasonable doubt of charged offence. On the other hand, in the Inquisitorial system it is for
the accused to prove himself not guilty of crime allegedly committed by him.

The criminal justice system represents the society’s organized institutional endeavour to
control crime. Prima facie, the object of the system is to ensure social harmony through law and
its enforcement. Thus, the law-making institutions i.e., the legislature, should also figure
prominently in the criminal justice system as well as the supplementary institutions, which are
directly or indirectly related to the enforcement, adjudication and correctional processes.

In India, the administration of criminal justice system follows the Anglo-Saxon Adversarial
pattern. It has four units, namely, the police, prosecution, judiciary and correctional institutions.

Ms.Sharada. R. Shinde: Basic Principles of Criminal Justice System – Their relevance to the present society. Indian
1

Bar Review vol. XXXII 2005 at page 547.

 In general terms criminal justice can be defined as a generic term for the procedure by
which criminal conduct is investigated, evidence gathered, arrests made, charges brought, defences
raised, trials conducted, sentences rendered and punishment carried out.

Restorative justice is a new movement in the fields of victimology and criminology.

Acknowledging that crime causes injury to people and communities, it insists that justice repair
those injuries and that the parties be permitted to participate in that process. Restorative justice
programs, therefore, enable the victim, the offender and affected members of the community to be
directly involved in responding to the crime. They become central to the criminal justice process,
with governmental and legal professionals serving as facilitators of a system that aims at offender
accountability, reparation to the victim and full participation by the victim, offender and
community. The restorative process of involving all parties – often in face-to-face meetings – is a
powerful way of addressing not only the material and physical injuries caused by crime, but the
social, psychological and relational injuries as well.

When a party is not able, or does not want, to participate in such a meeting, other
approaches can be taken to achieve the restorative outcome of repairing the harm. In addressing
offender accountability these approaches can include restitution, community service and other
reparative sentences. In addressing victim and offender reintegration they can include material,
emotional and spiritual support and assistance.

A definition of restorative justice that emphasizes the importance of both restorative processes and
outcomes is the following:

Restorative justice is a theory of justice that emphasizes repairing the harm caused
or revealed by criminal behaviour. It is best accomplished through cooperative
processes that include all stakeholders.

Therefore, Restorative Justice ‘programs’ bring together the offender, victim, their
respective families, friends and community representatives, and attempt to engage them in a
process of reconciliation and reparation. The aim is to allow offenders and victims to meet in a
face-to face context (although indirect contact is often employed), to voice their experiences and
understandings, and to achieve a mutually agreeable resolution. There are several different modes
of practice in Restorative Justice. Victim-offender reconciliation, family-group conferencing, and
sentencing circles are three popular models – and these vary in terms of the facilitator’s role and
the number and type of participants included.

The foundation of criminal justice system rests in the ancient maxim of Actus non facitreum nisi
mens sit rea. The phrase, being in Latin, translates that “the deed of a man does not render him
criminally punishable, unless such deed is actuated by a legally blameworthy attitude of mind.”
The ambit of our criminal justice system, and consequently the ambit of restorative justice, has to
be understood, with this maxim in our thoughts.

The criminal justice system comprises of three distinct stages:

(A) Investigation,

(B) Inquiry and

(C) Trial.

The aspect of importance herein is that Restorative Justice is not a system distinct from the
criminal justice system, but rather is an integral part of it. The way a Lawman would feel is that
restorative justice is a sub-set of the criminal justice system. The three stages observed in the
system of criminal justice, thus, apply equally to restorative justice as well. The distinct appearance
of restorative justice, as opposed to the conventional criminal justice system, is seen only in the
stage of trial.

An accused arraigned during trial has to pass across the due process which has been
crystallized through ages. Restorative Justice, as we have understood, provides an angle where the
offender helps to repair the harm done upon his victim; at the same time, priority of the victims
and the community is employed towards a harmonious participation in taking a just decision
against the offender. Thus, the sub-set of restorative justice in criminal justice system emerges
only at the stage of sentencing, i.e. after an accused in convicted and confirmed as an offender.

The modern restorative justice movement got its start in the criminal and juvenile justice
arenas. It now is capable of influencing virtually every aspect of those systems.
 Victims are said to be central to restorative justice, but most restorative justice programs
take place in the context of the offender-centred criminal justice system. We have resources on
how to support victims and on how to treat them with respect.

The age-old mythological justice system has been working under the theory of retribution.
The conventional criminal justice system that we follow (or as the majority of the world follows)
would be one among the theory of deterrence, theory of disablement or the theory of rehabilitation.

In order to appreciate the differences in approach that restorative justice poses, it is

important to first understand that the criminal justice system of today’s world operates under a
retributive justice approach. Retributive justice is based on the idea of punishment, and the theory
behind it is that the state is the ultimate victim of crimes and thus has the power to punish people
it deems criminals. This domination-based form of justice is one basis for punishing “victimless
crimes” such as drug offenses so harshly. Under retributive justice theories, the state is positioned
as the victim.

In other words, the current criminal justice system’s emphasis on retributive justice relies
on the logic that:

Retributivism answers the question ‘why punish’ by saying that the offender deserves
punishment, and as simple as this statement sounds, its underlying meaning contains a couple of
important points about morality and law. Retributivism as a theory of punishment requires
retribution as a rationale for law. A retributionist assumes that the law exists for a reason — a
moral reason. All crime, even victimless crime, involves a social harm — a moral harm. In other
words, violating the law not only offends against the law of the land, but the moral code of the
land.

Restorative justice, however, is grounded in an entirely different logic, philosophy, and practice.
Restorative justice maybe defined as:

A philosophy and a social movement which provides an entirely different way of thinking
about crime and victimization. Our current retributive justice system focuses on punishment,
regarding the state as the primary victim of criminal acts and casting victims and prisoners in
passive roles. Restorative Justice, by contrast, focuses on healing and rehabilitation. It assumes
that the persons most affected by crime should have the opportunity to become involved in
resolving the conflict. The goals of restoring losses, allowing prisoners to take responsibility for
their actions, and helping victims move beyond their sense of vulnerability stand in sharp contrast
to the conventional focus on past criminal behaviour and increasing levels of punishment.

The basic difference between the restorative justice and our traditional legal system may
be explained by way of the questions raised primarily by the systems. Traditionally when a crime
is committed, the justice system has been primarily concerned with three questions:

• Who did it?

• What laws were broken?

• What should be done to punish or treat the offender?

This type of approach is considered retributive, where the intent is to get retribution or
punishment for an offense committed. Restorative justice programs emphasize a set of different
questions:

• Who has been harmed?

• What is the nature of the harm resulting from the crime?

• What needs to be done to “make it right” or repair the harm?

• Who is responsible for this repair?

• How can the responsible party return to a law-abiding life?

The intent is to restore the victim and community affected by the crime as close as possible
to pre-crime conditions.

By taking the ideals of community and individual accountability and upholding the goal of
mutual understanding and healing, restorative justice processes ensure that police, prosecutors, and
judges are not the only ones with power over deciding someone’s fate after a crime has been
committed.
 This power shift can involve processes such as victim-offender mediation, conferencing,
service provision, and “victim” assistance, as applicable. In the most well-known and widely used
forms of restorative justice–mediated community conferences and circles–the offender(s),
victims(s), and other closely impacted community members will come together in a mediated
dialogue to address the context and harm done by the crime. During this process, the offender is
expected to accept responsibility and agree to the group consensus of how to move forward,
whether through community service, rehab, or other options. In these types of processes, the
offender must agree to following through on the agreement; failing to do so will trigger a return to
a traditional, retributive justice approach that will likely result in jail time.

The restorative justice system, when we do intend to implement, would follow the sentencing
policy based upon the theory of expiation.

The theory of expiation propounds the age-old philosophy that “the good-will or bad-will
derived by every man is the consequence of his own actions.” The theory of expiation rests amidst
the mindset of an offender in accepting his mistake and making amends or reparation for the
underlying guilt or wrongdoing. The society will be able to harmoniously participate in ensuring
that the offender receives his due share only when we are convinced that the man who committed
the crime no longer exists. Thus, the system of restorative justice aims at providing closure towards
the offender, the victim and the society at large. The system of restorative justice walks hand-in-
hand with the sentencing policy of expiation and the mindset of all stakeholders must be amended
for us to accept this new way of life.

Restorative justice is different from contemporary criminal justice in several ways. First, it views
criminal acts more comprehensively -- rather than defining crime as simply law-breaking, it
recognizes that offenders harm victims, communities and even themselves. Second, it involves
more parties in responding to crime -- rather than giving key roles only to government and the
offender, it includes victims and communities as well. Finally, it measures success differently --
rather than measuring how much punishment is inflicted, it measures how much harm is repaired
or prevented.
Benefits to the community

Reduced recidivism. Restorative justice has a high rate of success in reducing repeat offenses.
When communities reintegrate their citizens after harm has been repaired, the likelihood of
recidivism is greatly reduced. People who have offended have the opportunity to make things
right, learn from the process, and put the matter behind them, so they can more easily go on to lead
a crime-free life.

Increased safety. With reduced recidivism comes a safer community. Restorative

justice empowers individuals to make their neighbourhoods and towns safer and more pleasant
places to live.

Cost effectiveness. A restorative approach to crime saves the state money by preventing
individuals from becoming part of the criminal justice system for offenses that can be resolved at
the local level with community and victim participation.

A stronger community. In addition to enhancing the safety and well-being of a town or region,
community justice centres help to establish a more active citizenship. Volunteering has been
shown to build stronger and more cohesive communities and increase the social networks within
towns and neighbourhoods.

Benefits to victims
Empowerment. When victims are offered the opportunity to have a safe and facilitated dialogue
with the person who harmed them, they feel empowered and invested in the process. Victims’
needs are acknowledged and considered, which gives them a voice in an often-impersonal system.

Meaningful dialogue. Victims are given the opportunity to explain how they were harmed, get
answers to their questions, and state what they need the offender to do to make amends.

Recovery and satisfaction. Restorative justice boasts a high rate of victim satisfaction.
Many are able to recover what was taken from them, whether it be material possessions or their
sense of security and peace of mind. They are more likely to be able to move on from the incident
and get back to their daily lives.
Benefits to people who offend
An opportunity to make it right. People who offend have the opportunity to express remorse and
apologize for their actions, benefiting themselves as well as their victims.

A way to put the incident behind them. People who offend have the opportunity to make significant
and appropriate amends and then move on. They are able to return to their communities knowing
that the matter is settled.

A timely resolution. The process of restorative justice is swift in comparison to the criminal justice
system, so that offenders can more quickly make meaningful changes in their lives.

A high success rate. Restorative justice has a high rate of compliance or completion. Within a
voluntary and non-coercive process, people who have offended tend to follow through on
agreements that they have a part in creating.

The principles of restorative justice have been upheld in a couple of verdicts passed by the Hon’ble
Supreme Court of India, which are discussed below.

1. Mofil Khan v. State of Jharkhand2

It would be the paramount duty of the Court to provide justice to the incidental victims of the crime
– the family members of the deceased persons. Therefore, appropriate and proportional sentence
requires to be imposed. On one hand, such sentencing would demonstrate respect to those most
personally affected by the grief and horror of murder, on the other it would also be in accordance
with the goals of the victims’ rights and the principles of restorative justice.

2. State of Uttar Pradesh v. Sanjay Kumar3

Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing.

Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused,

2
(2015) 1 S.C.C. 67; Coram: Hon’ble the Chief Justice H.L. Dattu, Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr.
Justice Arun Mishra
3
(2012) 8 S.C.C. 537; Coram: Hon’ble Mr. Justice B.S. Chauhan and Hon’ble Mr. Justice Swatanter Kumar
are used to prescribe punishment. By introducing more uniformity and consistency into the
sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes.
Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and
lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality,
as followed in various judgments of this Court, prescribes that, the punishments should reflect the
gravity of the offence and also the criminal background of the convict. Thus, the graver the offence
and the longer the criminal record, the more severe is the punishment to be awarded. By laying
emphasis on individualized justice, and shaping the result of the crime to the circumstances of the
offender and the needs of the victim and community, restorative justice eschews uniformity of
sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public
system to undermine the public confidence in the efficacy of law and society could not long endure
under serious threats.

Ultimately, it becomes the duty of the courts to award proper sentence, having regard to the nature
of the offence and the manner in which it was executed or committed, etc. The courts should
impose a punishment befitting the crime so that the courts are able to accurately reflect public
abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are
germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence
without considering its effect on social order in many cases may be in reality, a futile exercise.

Conclusion

Restorative justice has tremendous potential to offer alternatives to incarceration for people who
would otherwise be targeted for mass incarceration. Recidivism rates decline and community
involvement increases, and these are all impacts that critics of mass incarceration certainly
applaud. However, while restorative justice is certainly an important move toward reforming the
criminal justice system as is, its lack of emphasis on structural and systemic oppression that is the
basis for mass incarceration to begin with makes it an adequate means of truly transforming the
criminal justice system.
 Restorative justice takes on various forms. Victim-offender mediation is perhaps the most
common, and involves face-to-face dialogues between victims and offenders. Victims' needs,
including the need to be consulted, are the focus. In victim-offender meetings, offenders have a
chance to take active steps to make reparation to their victims. This extends further than monetary
compensation, and includes an apology and an explanation of how the crime occurred. The
offender might also do some work for the victim, or for some community cause selected by the
victim.

In addition, offenders have to listen to victims' stories and face up to the reality of what
they have done. They are often deeply affected by this experience, and have positive motivation
to make reparations. Because this process brings victims and offenders together and enables them
to talk to one another, it can allow them to see the other as a person rather than a stereotype. For
this process to be effective, a skilled mediator should facilitate these meetings. Unlike the full stop
on life that is capital punishment which leaves no room for any improvement the perpetrator or the
community at large.