|VOLUME 2| ISSUE 2| OCTOBER 2018|ISSN (O): 2581-3595)|

RESTORATIVE JUSTICE: A METHOD OF VICTIM PARTICIPATION IN CRIMINAL JUSTICE SYSTEM: AN EMPIRICAL STUDY

AUTHORED BY: NEERU CHAUHAN, RESEARCH SCHOLAR AT MOHAN LAL SUKHADIA UNIVERSITY UDAIPUR, RAJASTHAN & CO-AUTHORED BY: CHIDAMBAR NAVALGUND, B.SC (CRIMINOLOGY), SCHOOL OF CRIMINOLOGY AND CRIMINAL JUSTICE, RANI CHANNAMMA UNIVERSITY,BELAGAVI.

ABSTRACT:

Justice being subjective in nature paves way for different areas through which it can be delivered. Restorative Justice forms one way of all other routes that have been in the limelight in recent times. Restorative justice is not simply a way of reforming the criminal justice system; it is a way of transforming the entire legal system, our family lives, our conduct in the workplace, our practice of politics. Its vision is of a holistic change in the way we do justice in the world[1]. The judiciary and the law enforcement have been sceptic about the involvement of the victims in the Justice System. There are four potent features of Restorative Justice: repair, restore, reconcile, and reintegrate the offenders and victims to each other and to their shared environments and communities.[2] The present legal framework and its reach to the victims are studied throughout the paper. The relevance of the theory of restorative justice in India as compared to other countries and suitable reformations in this regard are presented in the paper. The present paper also analyses several themes of Restorative Justice, recent trends and the possible evolutionary perspectives in the near future.

KEYWORDS:

Restorative Justice, Victim, Restitution, Recent Trends.

BACKGROUND OF THE STUDY:

The concept of Restorative Justice has been defined on account of the stakeholders that are involved in the Justice System. In the western academia, there has been a lot of emphasis, on the Restorative Justice being used for Juveniles in Crime. The present research paper brings into consideration the presence of the victim in the process and addresses the present challenges and possible solutions in this regard. Also, every research paper has an obligation to prove and justify the necessity or need for its existence. The Whole Criminal procedural law of India is based on the punitive and preventive theory rather than restorative measures and it is of no doubt that somewhere we have failed to provide real justice to the victims of crime.[3] In this regard, it is indeed appropriate to study Restorative Justice in all possible perspectives.

In our present Justice system, the concept of Restorative Justice is witnessed through the lenses of a diversionary process. This is also due to the fact that the mundane methods of Investigations, Trials and Corrections by the Law enforcement agencies, Judiciary and Correctional institutions appear to be too rigid to allow access for any other form or method of justice. We may also note that the present rigidity can be softened by the “assuming the situation to be an obligation to make things right.”[4] In a way, Restorative Justice Aims at “…..repair, reconciliation and reassurance”[5]

The principles of restorative justice, such as requiring restitution for property crimes, is centuries old and can be found in the Code of Hammurabi (1700 BC), and the Old Testament[6] The fact that Restorative Justice has been (similar to the Criminal Justice system), an evolved concept is in itself an evident argument for us to consider the former to be an integral part of the system. In the context of the modern times, Restorative justice is considered not as an evolving part of the Criminal Justice System but as an alternative or parallel form of Justice System with its own methods and practises.  This thought has inspired us (Authors) to ponder upon the opinions that the stakeholders have on Restorative Justice System (hereinafter RJS).

Also, the major difference in the Criminal Justice system and RJS lies in the fact that former takes into the consideration the crime that has been committed against the state while the latter tends to address it as an issue of peace and public relationships. It can be dated back to the time during Norman’s invasion of British in 12th century. [7] 

LITERATURE REVIEW:

40 Cases: Restorative Justice and Victim-Offender Mediation, Edited by Paul Crosland and Marian Liebmann

In this book, 40 cases have been mentioned under which by means of restorative justice cases are resolved. The author stated in this book that an opportunity to being a part of criminal justice system must be given to victim as well as Courts have the opportunity to learn about victims’ needs and to aid reparative purposes in sentencing must be used as ‘Key features of effective restorative practice’.

In the book, restorative practice is used in crimes like i.e theft, assault, housebreaking, and mischief: drug offenders, juvenile offenders etc.

John Braithwaite, T hilagaraj, R., Liu, Jianhong (Eds.), Restorative Justice in India, Traditional Practice and Contemporary Applications

The author in his book systematically introduces the practice of restorative justice in India, as a resource for comparative criminal justice research. “Restorative justice” focuses on the rehabilitation of offenders through reconciliation with victims, and with the community at large. India has a rich tradition of restorative justice, and this work introduces both the traditional basis and contemporary practices of this justice system in India, in a comprehensive and systematic way.

The contributions to this work cover three main areas:

  1. The Tradition of Restorative Justice in India.
  2. The Development of Restorative Justice in India.
  3. Restorative Justice Practices in India. 

Charles Barton, Theories of Restorative Justice, 2000

The author in his article made a clear difference between the conventional system of justice and restorative justice system. He explained the concept of restorative justice by the four most relevant and compelling theoretical explanations, they are:

  1. Reversal of moral disengagement
  2. Social and moral development
  3. Emotional and moral-psychological healing
  4. Reintegrative shaming

He stated that, in terms of providing long-term solutions to criminal behaviour, the success or failure of a criminal justice intervention, whether conventional or restorative, depends significantly on the degree to which it allows, or promotes, the realization of the critical factors Identified in these theoretical accounts. 

Zvi D. Gabbay, Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices

This paper analyzes the premises of the two main theories of punishment that influence sentencing policies in most Western countries—retributivism and utilitarianism and compares them to the basic values that structure the restorative justice theory. It then makes clear distinctions between restorative justice and the rehabilitative ideal and addresses the criticism that, like rehabilitation, restorative justice results in different punishments to equally culpable offenders. The paper concludes that restorative justice does not contradict retribution and utility as theoretical justifications for penal sanctioning. Moreover, it suggests that restorative practices rehabilitate the basic notions of retribution and deterrence that have been neglected in modern sentencing schemes, that restorativism contributes new and deeper meaning to those notions and values, and that in doing so restorative justice practices improve and promote society’s response to crime.

SIGNIFICANCE OF RESEARCH:

Victim participation in the Criminal Justice System has been a widely discussed concept while the same does not stand true in case of RJS. The adaptability of the victim in the system, the opinion of the stakeholders has not been focused upon in recent times. Research Projects in this field could also help strengthen the concept of RJS through State Policies.

RJS: EVOLVING PERSPECTIVES:

RJS in India, as of now includes settlements in minor cases which are compoundable in nature. The presence of Lok-Adalat[8] as an alternative dispute redressal mechanism is in itself an illustration of the working (in force) concept of RJS. Also, as a unique model, there has also been the adoption of Plea Bargaining principle in limited criminal cases. The scope of this principle in the RJS has been widening in recent times with legislations in this regard being drafted throughout the world. It is a subject matter of our research as it allows participation of the victims in the Restorative Justice Process in minor crimes.

As a mechanism, RJS has evolved with is methods.

  1. Victim-Offender Mediation,
  2. Family Group Conferencing
  3. Sentencing circles, healing circles and community-assisted hearings.[9]

a) VICTIM OFFENDER MEDIATION:

 It involves a mediator who gets the victim and the offender together to discuss about the commission of the act. It allows the victims to be physically and emotionally involved in the process while they express their feelings. In a way, it is aimed at perusing the offender to assume responsibility for his/her actions. Many programs have been conducted based on this theme throughout Cannada and USA.

b) FAMILY GROUP CONFERENCING:

RJ with the mentioned theme is not very common as regular trial mechanisms do not entertain such family involvement. This theme also involves a mediator who helps meet between the family of the accused and the victim; it is more of an open discussion involving the possible consequences of the act and any further compensation that can be awarded. The following themes have been included in various programs for Young offenders/juveniles in New Zealand. Forums have been created for crimes committed by adults.

c)  SENTENCING CIRCLES:

These practices involve the presence of elders, family members, law enforcement officers, victim and offender. Sharing of experiences and opinions is promoted. They are called healing circles as attempts are made to have counselling sessions for the offender and the victim. The members in this system believe that they also act as agents of rehabilitation and corrections for the offender while Victim Participation is encouraged.

Though there are many mechanisms in place, the stakeholders (here the Judiciary) has contradictory views. For example, the Supreme Court of India in Murlidhar Meghraj Loya and Kasambhai Abdulrehmanbhai Sheikh[10] Case held that Plea Bargaining is against Article 21(Right to Life) of the Indian constitution because it enables an innocent accused to fall for acceptance of guilt to have a “light and inconsequential punishment.” On the other hand, the Supreme Court of US highlighted the advantages that their Justice System had due to their provisions in regard to Plea Bargaining. It held that over 75% of cases of criminal conviction rests on the pleas of the guilty.

Several Law commissions have noted the benefits of Plea Bargaining in their reports and have contrasted it to 75% acquittal rates.[11] The 142nd Law commission also mentioned that it should also be introduced to offences with punishment for less than 7 years. The Malimath committee has stepped up by stating that the accused can be awarded a suspension sentence and be released on probation or may order compensation to be paid to the victim.

OBJECTIVES OF THE STUDY:

  • To analyse the present conditions, procedures followed by the administration and judiciary in regard to RJS
  • To examine the system of RJ as a redressal mechanism
  • To reason the opinions of the stakeholders in RJS with respect to the victim
  • To assess the awareness among the masses in regard to RJS

SCOPE OF STUDY:

As mentioned, one of the objectives of the study was to access the awareness and opinions, among the stakeholders (Teachers, Professors, Lawyers, and Students) hence the questionnaire was open for people of all ages. There has been a conscious attempt to involve samples between the ages 21-30.

DEFINITIONS:

Following (Wiki) definition was explained to the samples:

“Restorative justice is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement to the satisfaction of each, as well as involving the community[12]”   

Mediation: Restorative mediation is a mediation process that uses restorative justice principles to guide the process and measure the outcome.[13]

DESIGN:

Use of complex terms the questionnaire was avoided as much as possible to make it simple and clear to those attending it. The questionnaire was designed in such a way that it provides the samples, real-life illustrations and specific theoretical questions. Such related illustrative and theoretical questions have been placed one below the other (consecutively). Attempts have been made to limit the number of questions and at the same time cover all possible prospects of the topic.

CHALLENGE:

Construction of a representative sample with people from different social, demographic, ethnic and geographical background was a major challenge during data collection.

METHODOLOGY:

Most of the data from the respondents were collected through electronic medium and the present study did not involve interviews especially due to the fact that numbers and statistics were given importance in place of qualitative analysis of their opinions. The questions were designed in a way that would help the respondents address them in different perspectives (As a Victim, Witness, etc.) Questions ranged from enquiring about their opinion on ‘Reformation of the offender’ to their ‘faith in restorative justice system’. Use of χ2 (Chi-Square Test) has been done using SPSS package to find associations between any variables if existing.

FINDINGS:

A total of 130 samples were collected with an average age of 27 (Table 1) as per the data collected, 68% of them appear in the age bracket of 19-30. As mentioned in the method, there was a deliberate and a conscious attempt to have the youth address the matter. India has more than 50% of its population below the age of 25 and more than 65% below the age of 35[14]. This fact justifies our attempt to focus precisely on the said age group.[15]

DESCRIPTIVE AGE STATISTICS:

 

N

Minimum

Maximum

Mean

Std. Deviation

Age

130

14.00

58.00

27.9308

11.77251

Valid N (listwise)

130

    

                                                   (TABLE 1)

The first question was more of a real life illustrative that asked the respondents to chose among the method of compensation for the loss, Punishment through law procedures or both.

REAL LIFE ILLUSTRATION:

 

Frequency

Percent

Valid Percent

Cumulative Percent

Valid

Imprisonment

55

42.3

47.0

47.0

Repayment

40

30.8

34.2

81.2

Both

22

16.9

18.8

100.0

Total

117

90.0

100.0

 

Missing

System

13

10.0

  

Total

130

100.0

  

      (TABLE 2)

The missing (13) respondents had their own agenda of treating the offender. These respondents were critical in their opinion while they asked for specificity in the type of crime and the kind of criminal background that the offender was alleged to have in the question. Some of these respondents mentioned of questioning the reason for crime and stressed on the need for reformation using different practices. For our study, the percentile of samples that preferred ‘both’ alongside those preferring for detailed specific analysis were significant.

In order to know if there is a change in the behaviour of the respondent as a victim and a witness with respect to RJS, their recommendation on the same was recorded.

                                                                   CHART 1

Although, the respondents were given the liberty to express themselves in case they had any opinion which was in contradiction with the given options, the majority of the respondents chose to have harsh punishment along with compensating with the loss to the victim. Restorative Justice as a practice has been evolving to have an easy participation of victim in the Justice system but the urge to have the satisfaction of an offender being punished balances the attempts that are made to create a parallel RJS.  Also, Whether or not RJS satisfies that urge is another research question after all.

The respondents were also asked if they accepted mediation programs in cases of serious and petty offences. 53.8% of respondents chose ‘Maybe’ as their option for petty offences. The second highest choice was that of respondents agreeing to participate in a mediation program.(chart 2) In cases of serious crimes, 38.4% and 33.7% of respondents chose ‘Maybe’ and ‘No’ respectively, The major difference in the samples lies in the fact that the second highest chosen option differed in both the questions. The number of respondents accepting mediation program in serious offences was relatively less.

         CHART 2                                                                CHART 3

During the research, we also wanted to know if the concept of restorative justice varies among people of different age groups. Χ2 was used to find out the same. There were no significant traces of associations among these variables. Following the same pattern, we wanted to know if there was any association between the opinions of the respondents when they were asked to respond to RJS through an Illustrative question and a theoretical question.

ILLUSTRATION: SERIOUS MEDIATION CROSSTABULATION:

 

Option of Meidation

Total

Yes

No

May Be

Ex

Imprisonment

Count

12

15

11

38

Expected Count

10.6

12.5

14.9

38.0

% within Ex

31.6%

39.5%

28.9%

100.0%

Repayment

Count

8

5

13

26

Expected Count

7.2

8.6

10.2

26.0

% within Ex

30.8%

19.2%

50.0%

100.0%

Both

Count

2

6

7

15

Expected Count

4.2

4.9

5.9

15.0

% within Ex

13.3%

40.0%

46.7%

100.0%

Total

Count

22

26

31

79

Expected Count

22.0

26.0

31.0

79.0

% within Ex

27.8%

32.9%

39.2%

100.0%

With p=0.230, there is no significant association between the two variables (Theoretical & Illustrative). 46.7% of the respondents who favoured imprisonment and Repayment of loss were neither affirmative nor contradictory to the choice of mediation. Even 40% of respondents who chose ‘both’ for an illustrative question preferred not to choose Mediation as an option in crimes of serious scale. The respondents have addressed the concept of RJS in a similar way irrespective of the method in which the concept was introduced to them.

The above table helps us know that the variables being independent, highlight the choices of the respondents being logical and reasonable through the above two questions.     

Throughout the analysis, an effective and significant association between the variables have been found between ‘Acceptance to mediation’ in “petty offences” and “serious offences” respectively. The justification to search for any correlation lies in the fact that as a respondent, one would eventually differentiate the situation (here petty and serious crime) and respond uniquely or similarly as one would wish to. The percentage of the respondents who favoured mediation in petty offences may or may not have the same perspective towards the case mentioned. For a better view, Crosstab results are given below.

PETTY MEDIATION: SERIOUS MEDIATION CROSSTABULATION:

 

 

 

Serious-cases-Mediation

Total

Yes

No

May Be

Petty-cases-Mediation

Yes

Count

11

5

11

27

Expected Count

7.5

9.1

10.4

27.0

% within PettyMediation

40.7%

18.5%

40.7%

100.0%

No

Count

4

11

2

17

Expected Count

4.7

5.7

6.5

17.0

% within PettyMediation

23.5%

64.7%

11.8%

100.0%

May Be

Count

9

13

20

42

Expected Count

11.7

14.2

16.1

42.0

% within PettyMediation

21.4%

31.0%

47.6%

100.0%

Total

Count

24

29

33

86

Expected Count

24.0

29.0

33.0

86.0

% within PettyMediation

27.9%

33.7%

38.4%

100.0%

With p=0.010 there is a significant association between the given two variables. One could assume it to be the influence of the present Criminal Justice system: Significant per cent of samples (64.7%) that rejected the concept of mediation in petty cases rejected the same method even in serious offences. Also, among the 40.7 % of respondents who desired to have mediation programs in petty cases were a little sceptical about the same in serious offences. A peculiar character has been observed in the samples. The respondents show no difference in their behaviour as a victim and as a witness of crime in the questionnaire. Their responses seem to be straightforward without loopholes in them. The scenario presented to them in order to gauge the concept of RJS and arrive at a decision had little effect on the respondents as per the crosstabs.

Respondents have also, in certain areas wherein they were allowed to express themselves in contradiction to the options available, have suggested for community practices for the offenders upon detailed analysis of the cases.

CASES:

 

Frequency

Percent

Valid Percent

Cumulative Percent

Valid

Civil

27

20.8

20.9

20.9

Criminal

7

5.4

5.4

26.4

Juveniles

23

17.7

17.8

44.2

Only Adults

1

.8

.8

45.0

All

8

6.2

6.2

51.2

None

1

.8

.8

51.9

Civil_Adults

3

2.3

2.3

54.3

Civil_juveniles

27

20.8

20.9

75.2

civil_criminals

9

6.9

7.0

82.2

CivilCriminalJuveniles

15

11.5

11.6

93.8

AdultCrim_Juveniles

8

6.2

6.2

100.0

Total

129

99.2

100.0

 

Missing

System

1

.8

  

Total

130

100.0

  

There is a mixture of opinions on the cases that should be treated with a parallel system of RJS. The trends are usual with civil cases heading the table. The presence of Lok Adalat, particularly in India, is justifiable in this regard. The need to practise RJ methods with Juveniles as in many European countries is a debatable matter. The fact to be noticed is that the opinion to have RJS especially for Juveniles is highlighted by the respondents. Very minute magnitudes of samples were also in favour of having RJS in all sorts of cases as shown above.

DISCUSSION AND CONCLUSION:

It should be noted that a large percentage of the samples represent the younger generation. The results could have varied if the samples included people of different age groups. As mentioned earlier, the analysis has been carried out to understand the present trends in force and the opinions of the masses on the same. The absence of associations between the answers of the respondents when asked to answer in Victim’s and witness perspective, shows that they have been rational and just in their responses. Restorative Justice can be addressed as a parallel system of Justice or as a method of CJS through various ways of introducing the former into the latter. An example of the same is the presence of Santhvana Kendra in the office of every Superintendent of Police. RJ as a practice has been evolving as mentioned earlier and has been introduced in the law enforcement agencies. However, the extent to which the provisions are being invoked and used is altogether another issue.

As our method of collecting the samples was not physically interactive, there are certain limitations. Even though there have been attempts to explain the concepts of RJ in the simplest way possible, the extent to which a particular respondent has been able to grasp the content cannot be measured. Yet, we believe the research findings to be just due to the fact that it also includes professionals, teachers working in the field presently. The modern literature that has been joining the academia stresses one of the methods of Restorative Justice i.e. Mediation.  We know for a fact that Restorative Justice has come down to us passing through principles like: Punishment should fit the crime. The findings of our research are also influenced by the fact that we have stressed on mediation in detail throughout the questionnaire instead of having other methods of Restorative Justice addressed. Also, the modern literature speaks little about the punishments that can be awarded to the offender through this system. Perhaps, the stress laid on mediation as a method has impacted the presence of punishment as an essential feature in RJS. It is also an issue that calls for critical analysis. Our questionnaire was limited to mediation because of the fact that it was open for masses. A Research project addressing issues of punishments in RJS can be pursued with samples that include the majority of stakeholders as respondents. Restorative Justice also finds its way in Gram Thanas where practices the mentioned methods are practised. These places exist firmly rooted due to the fact that the masses believe in their form of Justice. At the outset, these practices may seem to be a parallel form of Justice System but it isn’t the same for the people who form a part of the same system. The irony lies in the fact that CJS may seem like a parallel system to them. Thus institutionalism of RJ is of paramount importance. For now, except for Lok Adalat, there exists partial of RJ or zero institutionalization. Our Research findings send out a mixed yet rational response. The foremost issue lies in the decision that is to be made which allows for differentiating cases upon discretion to address them through CJS or RJS.

A similar Research can be conducted with a bigger sample size involving samples of different groupings based on specific parameters. A study in Minnesota is illustrative[16]. A similar public survey was held. In contrary to the findings of our research, the public opinion was more focused on restoring the loss to the victim, when the respondents were given an illustrative question. Also, more than 4 out of every 5 respondent seemed more liberal in approach to have a one-on-one conversation with the offender unlike the findings of our research which are surprisingly and exactly the opposite. Restorative Justice will be implemented in a broader manner when there develops a social mindset demanding the same, which as a matter of fact isn’t visible in our research findings. Here, mass demand need not necessarily account to a revolution but a popular homogenous feeling for Restorative Justice.

We believe gradual institutionalization of Restorative Justice Principles, methods and practises in our procedures could eventually create a demand among the masses for applicability of Restorative Justice System.

[1] John Braithwaite, “Principles of Restorative Justice” In: A. Von Hirsh, J. Roberts, A. Bottoms, J. Roach and M. Schiff, Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms (eds), 87.

[2] Latha S and Thilagaraj R, “Restorative Justice in India” [2013] Asian Journal of Criminology https://www.researchgate.net/publication/257681397_Restorative_Justice_in_India.

 

[3] N.R. Madhava Menon, Towards Restorative Justice, THE HINDU (Nov. 11, 2018, 10:00 AM), https://www.thehindu.com/opinion/lead/towards-restorative-criminal-justice/article8433634.ece.

[4] Zehr H, Lenses: A New Focus for Crime and Justice (3rd ed. 1990).

[5] Zehr, p. 22.

[6] Ibid.

[7] Umbreit MS, Coates RB and Kalanj B, Victim meets offender: the impact of restorative justice and mediation (Criminal Justice Press 2010).

[8] “Introduction to Lok Adalat” (NALSA) <http://nalsa.gov.in/lok-adalat> accessed November 9, 2017.

[9] Khan SA, “Khan, Sarfaraz Ahmed, Restorative Justice Under the Criminal Justice System in India: With Special Reference to Plea Bargaining and Compounding Measures ” (March 22, 2011) <https://dx.doi.org/10.2139/ssrn.2566126> accessed November 9, 2017.

[10] Murlidhar Meghraj Loya v. State of Maharastra A.I.R. 1976 S.C. 1929 and Kasambhai v. State of Gujarat A.I.R. 1980 S.C. 854 (India).

[11] Khan SA, p.11.

[12] “Restorative Justice” (Wikipedia) <https://en.wikipedia.org/wiki/Restorative_justice> accessed November 8, 2017.

[13] Noll D, “Restorative Mediation” (Mediate.comSeptember 2002) <https://www.mediate.com/articles/noll6.cfm> accessed November 5, 2017.

[14] “Demographics in India” (Wikipedia) <https://en.wikipedia.org/wiki/Demographics_of_India> accessed November 9, 2017.

[15] Age Group : 25% of the respondents aged between 25 and 29.

[16] Umbreit MS, “Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment” (1998) 1 Western Criminology Review <http://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html> accessed November 9, 2017.