RESTORATIVE JUSTICE

AND MEDIATION
SHINSA P MATHEW
ASST. PROFESSOR
VITSOL
RESTORATIVE JUSTICE
• Related to criminology and victimology
• It is a process imparting criminal justice with the participation of
parties
• Restorative justice programs, therefore, enable the victim, the
offender and affected members of the community to be directly
involved in responding to the crime.
• Offenders have an accountability to the victims. This facilitates the
full participation of 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.
 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.

.
CRIMINAL JUSTICE SYSTEM
• Crime – lawbreaking
• Violation create guilt
• Role- government and the
offender
• Punishment inflicted
RESTORATIVE JUSTICE
• Recognizes that offenders harm
victims, communities and even
themselves.
• Violation create obligations
• Role- victim, offender,
community
• Harm is repaired or prevented
 .

CRIMINAL JUSTICE RESTORATIVE JUSTICE

SYSTEM 1.Who has been hurt?
1.What laws are violated 2.What are their needs?
2.Who did it? 3.Who is responsible and
3.What punishment do they obliged for it?
deserve?
METHODS OF RESTORATIVE JUSTICE
.
Victim offender mediation

Family or Community Group

Conferencing.

Peacemaking or Sentencing Circles.

VICTIM OFFENDER MEDIATION.
• This is a process that provides an interested victim the opportunity to
meet his offender in a safe and structured setting, engaging in a
discussion of the crime with the assistance of a trained mediator.
• Encouraging 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 harm.
• Among those who participated in such mediations, higher satisfaction
was found. – lower fear in victims, offenders complete restitution
obligation, fewer offenders committing newer offences
• USA, EUROPE
FAMILY OR COMMUNITY GROUP CONFERENCING
• 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
• Giving the victim an opportunity to be directly involved in responding to
the crime, increasing the offender’s awareness of the impact of his or her
behaviour and providing an opportunity to take responsibility for it,
engaging the offenders' support system for making changes and shaping
the offender's future behaviour, and allowing the offender and the victim
to connect to key community support
• New Zealand, Australia, North America, Europe, South Africa
PEACEMAKING OR SENTENCING CIRCLES
• This is a process designed to develop consensus among community
members, victims, victim supporters, offenders, offender supporters,
judges, prosecutors, defence counsel, police and court workers on an
appropriate sentencing plan that addresses the concerns of all interested
parties.
• Promoting healing of all affected parties, giving the offender the
opportunity to change, giving victims, offenders, family members and
communities a voice and shared responsibility in finding constructive
resolutions, addressing underlying causes of criminal behaviour, and
building a sense of community around shared community values.
• American traditional practice
REPAIRING THE HARM CAUSED BY CRIME
RESTITUTION
• Payment by an offender of a sum of money to compensate the victim for the
financial losses caused by the crime. It is justified in a restorative perspective as
a method of holding offenders accountable for their wrongdoing, and as a
method of repairing the victim's injury.
• Restitution increases victim satisfaction with the justice process.
• Reduces recidivism
COMMUNITY SERVICE
• work performed by an offender for the benefit of the community.
• What distinguishes its use as a restorative response is the attention given
to identifying the particular harm suffered by the community as a result
of the offender's crime, and the effort to ensure that the offender's
community service repairs that particular harm.
• Community service programs in Africa build on customary processes for
making changes, thus addressing community concerns and easing the
offender's reintegration into the community
OTHER METHODS
• Victim-offender encounters are taking place inside prisons – post
sentencing mediation
• Circles of Support – sexual offenders- reintegration plan with the
offender, by regularly monitoring the behaviour of the offender, and by
ensuring that community resources needed by the offender are made
available. It ensures the safety of the offender by offering a forum for
community members to voice their concerns, by intervening with
community members when necessary, and by working with the police
and other authorities to provide protection and services as needed
• Unique prison regimes - prisoners volunteer to stay at facilities run
largely by volunteers and the prisoners.
OBJECTIVES OF RESTORATIVE JUSTICE
• To concentrate fully to victims’ needs or requirements i.e. material,
financial, emotional and social (including those personally close to the
victim who may be similarly affected)
• To prevent re-offending by reintegrating offenders into the society
• To enable offenders to assume active responsibility for their actions
• To recreate or restore a working community that supports the
rehabilitation of offenders and victims and is active in preventing crime
• To provide a means of avoiding escalation of legal justice and the
associated costs and delays.
 NEEDS AND ROLES
. • Victims often feel ignored, neglected, or
even abused by the justice process.
• They need “real” information, not
VICTIMS speculation or the legally-constrained
information that comes from a trial or
plea agreement.
• Truth-telling
• Empowerment
• Restitution
 .

• Accountability
• Encouragement to personal
transformation
OFFENDERS • Encouragement and support for
integration into the community
• temporary restraint.
 .

• Attention to their concerns as victims.

• Opportunities to build a sense of
community and mutual accountability.
• Encouragement to take on their
COMMUNITY obligations for the welfare of their
members, including victims and
offenders, and for the conditions that
promote healthy communities.
• Community also want assurance of not to
repeat the same and preventive actions.
3 PILLARS OF RESTORATIVE JUSTICE

HARMS AND
NEEDS

OBLIGATIONS

ENGAGEMENT
• HARMS AND NEEDS
Restorative justice views crime first of all as harm done to people and
communities. Harm focuses on an inherent concern for victims' needs and
roles. It seeks to repair the harm as much as possible, both concretely and
symbolically. This may require us to address the root causes of crime.
• OBLIGATIONS
It is the offender’s accountability and responsibility. accountability means
offenders must be encouraged to understand that harm, that is, to begin to
comprehend the consequences of one's behavior.
• ENGAGEMENT OR PARTICIPATION
“Stakeholders” need to be given information about each other and to be
involved in deciding what justice in this case requires.
INTERNATIONAL LEVEL
• UN Commission on Crime Prevention and Criminal Justice in 2002
suggested to include Restorative Justice in the criminal justice system, in
order to bring the offender at par with the victim
• UN General Assembly made a Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power, 1985 recognizing the fact that
millions of people throughout the world suffer harm as a result of crime
and the abuse of power and that the rights of these victims have not been
adequately recognized. - "victim-justice-system"
• Victim Offender Mediation– Canada
• Members of Church, Victim Offender Dialogue - Indiana
• Mediation - USA
• Restorative justice is a mandate in juvenile, and cases where
imprisonment is less than 1 year- amended Criminal Code- Germany
• Juvenile cases- New Zealand Maori community
• Wagga model restorative policing- Australia
• United Kingdom Crime Reduction programmes (1999)- UK
DEGREE OF RESTORATIVE JUSTICE PRACTICES
• FULLY RESTORATIVE
• MOSTLY RESTORATIVE • DOES IT ADDRESS HARM?
• PARTIALLY RESTORATIVE • WHETHER VICTIM ORIENTED?
• POTENTIALLY RESTORATIVE • WILL OFFENDERS TAKE
• NON- RESTORATIVE RESPONSIBILITY?
• WHETHER ALL STAKEHOLDERS
INCLUDED?
• IS THERE AN OPPORTUNITY FOR
DIALOGUE?
• IS IT RESPECTFUL FOR PARTIES?
RESTORATIVE JUSTICE IN INDIA
• Traditional system of dispute resolution have been swept from today’s
adversarial character of official rules. Kangaroo courts are run by many
communities in India.
• Khap panchayats and Salishi Sabha are examples for it.
• These type of community frameworks are self-styled for restorative
process but the decision has undermined the public confidence in such
restorative process of justice.
• Labhpur incident- 2014
• Malda incident- 2014
• Manoj- Babli Murder case
• Mehran Killing 1991
• Honor Killing of a Journalist
• Murder of Ved Pal and Sonia
• According to the Supreme Court, khap panchayat is illegal where honor
killings conducted by them are barbaric and shameful, threatening to
take legal action against the police and regional bureaucrats who fail to
prevent these honor killings from occurring.
• 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.
 COURT AND RESTORATIVE JUSTICE
• Restorative Justice can be highly effective in juvenile crimes but 164th
Parliamentary Standing Committee Report on The Juvenile Justice Act
revealed Boards lack services like counselling, mediation, treatment other
reformative measures as required for the restorative justice process
• Justice Krishnaiyer in Sunil Batra v. Delhi Administration 1980‘ pronounced
that whenever a punitive response is awarded to an offender, it must be
oriented to restorative measures and not just to deterrence only.
• Justice Krishna Iyer, in Rattan Singh V. State of Punjab pronounced that “It is
weakness of our jurisprudence that the victim of crime and the distress of the
dependents of the prisoner do not attract the attention of the law. Indeed,
Victim reparation is still the vanishing point of our criminal law. This is a
deficiency in the system which must be rectified by the legislature.
• In the case of Babu Singh V. State of Uttar Pradesh, the Supreme Court
suggested that methods of restorative justice such as sentencing circles,
victim-offender meeting, community service, meditative drill, or study
classes should be initiated to help in restoring both, victim and the
offender.
• The Godhra massacre in 2002 - They are given mandatory community
service in Madhya Pradesh.
• Sanjeev Nanda v. The State- popularly known as 1999 Delhi hit-and-run
case, wherein the accused ran over six people including three policemen,
the sentence of convict was reduced to the time he served in jail and was
further given two years of community service.
• Juvenile Justice (Care and Protection) Act, 2015 provides for various
alternative forms of punishment like advice or admonition by
appropriate authority, counselling, community service, fine. Release on
probation of good conduct and placed under care and supervision in a
facility, special home for providing reformative services.
• The Board appointed under the 2015 Act can also pass additional orders
attending school, vocational centre, therapeutic centre or prohibiting
child from visiting any particular place. These provisions are in
conformation with the international instruments focussing on
diversionist techniques ensuring re-integration of offenders in the
society
•
• An attempt to include such alternative forms of punishments in IPC was
also made in 1978 through introduction of a Bill in the Parliament which,
unfortunately, could not see the light of the day (Law Commission of
India, 156th Report on Indian Penal Code)
• In State of Gujarat v. Raghavbhai Vashrambhai, the Punjab and Haryana
High Court observed compromise to be a sine qua non in modern
societies to maintain harmony and order. To promote compromise of the
soul of justice which aims at enhancing social amity and reducing friction
in the society.
• Anupam Sharma v. NCT of Delhi – restorative justice is a reflection of
mediation in criminal justice. In leads to involvement of victim in the
justice delivery process which should be welcomed in criminal justice
administration.
• Involvement of victim can give the feeling of wrong being done to the
victim otherwise the criminal proceedings only remain to be a process
for the finding out if the law was violated by the accused or not, thus,
diverting the focus from victim to the law
• A ‘trial and error’ can be run by legislature to see what is the impact of
victim offender mediation programmes in such offences. Similarly, if the
crime was committed by a first time offender, or in the heat of moment
or in necessity, or the circumstances where defences are available or
where specific exceptions are available, instead of any punishment, even
if minimal, restoration can be adopted.