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(Seminar Paper towards partial fulfilment of the assessment in the subject of

Criminology and Victimology)



WINTER SESSION [Jan- May 2018]


Faculty National Law University, Jodhpur X Semester


I would like to extend my sincere thanks to Supervisor and Designation for having been my
Dissertation Guide for this work and having given his excellent guidance throughout this work
carried out under his guidance. I would like also extend my thanks to all the faculty members who
have guided me during the contact programs and helped me to overcome the difficulties faced during
the course.

Dated: 13th April 2018 (Student’s Signature)


INTRODUCTION ............................................................................................................................... 4
WHY THERE IS A NEED OF RESTORATIVE JUSTICE? ........................................................................... 5


ADVERSARIAL CRIMINAL J USTICE SYSTEM OF INDIA ................................................................... 8

APPLICATION OF RESTORATIVE J USTICE IN INDIA ...................................................................... 10
RESTORATIVE J USTICE P RACTICES IN UK ................................................................................... 15
Development of Restorative Justice in England and Wales ...................................................... 15
Types of restorative justice practices in England and Wales.................................................... 18
Legislative framework ............................................................................................................... 19
RESTORATIVE J USTICE P RACTICES IN US .................................................................................... 21
IMPLEMENT EFFECTIVE RESTORATIVE JUSTICE PRACTICES ............................................................. 24

CONCLUSION ................................................................................................................................. 29
BIBLIOGRAPHY .............................................................................................................................. 29


“When another person makes you suffer, it is because he suffers deeply within himself, and
his suffering is spilling over. He does not need punishment; he needs help”1

Thich Naht Hanh

Restorative justice has emerged as a new form of justice in the arena of criminal administration
of justice. In today’s era crime is treated as violation against the state not against the victim, and
accordingly the state and not the victim has the jurisdiction to address it.

Basically, Restorative justice is a way of thinking about crime and conflict, rather than a distinct
model or system of law. It goes beyond how we think about crime and conflict, to how we think
about ourselves collectively as a society, how we respond to crime and how we restore the
balance after a crime has been committed. The assumption of restoration is that people are not
permanently criminal and that it is possible to restore a criminal to a useful life to a life in which
they contribute towards themselves and the society. The real essence of restorative justice is in
the face-to-face meeting between the victim, offender and members of the community. During
the course of that meeting each party is given an opportunity to tell the story of the crime from
their own perspective, and talk about their concerns and feelings. The meeting helps the parties
to develop an understanding of the crime, of the other parties, and of the steps needed to make
amend. Reparation can include monetary payment, service to the victim, community service or
any other measure agreed upon by the parties. The meeting concludes with an agreement
outlining how the offender will make reparation. Sometimes, when a face to face meeting is not
the best way forward, the victim and offender will communicate via letters, recorded interviews
or video instead.

Therefore, this seminar paper would focuses upon an overview of the existing Criminal Justice
System, loopholes present in it and the legislations that reflect the principles of Restorative
Justice in India. Further, the paper shall also discuss the various Restorative Justice programmes

Lipika Sharma , Restorative justice system: A comparative analysis, International Journal of Law, Volume 3; Issue
3; May 2017; Page No. 39-44

adopted in UK and US and how it can be effectively implemented in India in order to balance the
interests of all the stakeholders involved in a crime, specially the victims.


The term restorative justice was coined by Albert Eglash who sought to differentiate between
what he saw as three distinct forms of criminal justice.2 The first is concerned with retributive
justice, in which the primary emphasis is on punishing offenders for their wrong deeds. The
second relates to what he called ‘distributive justice’, in which the primary emphasis is on the
rehabilitation of offenders. The third is concerned with idea of ‘restorative justice’, which he
broadly equated with the principle of restitution. He claimed that the first two focuses on the
criminal act, deny victim participation in the justice process and require merely passive
participation by offenders. The third one, however, focuses on restoring the harmful effects of
the act of crime, and actively involves all parties in the criminal process.3
Tony Marshall, defined the term as; “Restorative justice is a process whereby parties with a
stake in a specific offence collectively resolve how to deal with the aftermath of that offence and
its implications for the future.”4
United Nations Office on Drugs and Crime defines the term Restorative justice as, “a process
for resolving crime by focusing on redressing the harm done to the victims, holding offenders
accountable for their actions and, often also, engaging the community in the resolution of that
In the current criminal justice system, victims frequently feel frustrated and left out of their own
cases, except perhaps for being witnesses. Restorative justice recognizes that victims have many
needs. They need an opportunity to speak about their feelings and to have the power restored to
them that has been taken away by the experience of the offence; they need recognition of the
pain and suffering they have endured; and they also need to understand the offender’s motivation

Dignan, James ,Understanding Victims And Restorative Justice, (Open University Press), 2005, 94.
Theo Gavrielides, Restorative Justice Theory and Practice: Addressing the Discrepancy (Criminal Justice Press,
Helsinki,), 2007, 21.
Id at pg 2-3
United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, Criminal Justice
Handbook Series, New York, 2006

for committing the a crime. Restorative justice recognizes these needs, and allows for victim
involvement in determining how those needs can best be met.

The theory of restorative justice is not to punish the offender, but rather to guide him/her to
repent for his/her crime, strive to mend the injury he/she has done, and reintegrate him/her into
the community.6 Revenge does not restore the losses of victims, answer questions, relieve fears,
provide closure, or help to make sense of a tragedy.7


There are clear evidences of the practice of Restorative justice in the world through
implementation of different programs and procedures like the victim and offender mediation,
community and family group conferencing, peacemaking circles, victim assistance and
involvement programs, circle sentencing and reparative probation. These programs also include a
discussion of indigenous and customary justice forums and the main characteristics of existing
criminal justice programmes.8

 Victim- Offender Mediation: It is also known as Victim-Offender Reconciliation

Programme, which got initiated as an experiment in Kitchener, Ontario in 1970’s.9 The
process involved meetings between victims, offenders & mediators offering opportunity
to the offender to explain his conduct or apologies to the victim. The family members of
the offender and/or the victim and community members could also be present in such
mediation meetings. The victim gets a change to explain how he/she was mentally,
materially, or physically affected as a consequence of the crime & the offender gets an
opportunity to respond & restore justice to the victim. This programme is efficiently
practised in USA, Canada, Australia, New Zealand, UK, Austria, Norway and many other
countries of the world.10

Dr. Mark Umbreit & Dr. Marilyn Peterson Armour, “Restorative Justice Dialogue: An Essential Guide for
Research and Practice”, Springer Publishing Company, 2010.

 Community and Family Group Conferencing: This model of Restorative Justice got
its origin when it was adopted into the national legislation and applied to the youth justice
process in New Zealand in 1989. For this conference the family and friends of both the
victim and the offender, and also other members of the community partake, in order to
confront the offender with the after- effects of his crime, develop a reparative plan and in
more grave cases, determine the requirement for more restrictive supervision and/or
custody. This method also serves as alternative measure programme to which an offender
can be diverted from the criminal justice system. The model is successfully carried out in
countries like South Australia, South Africa, Ireland, Lesotho, etc.11
 Circle Sentencing: This approach towards Restorative Justice is defined to build up a
consensus among the stakeholders, which include victims and their supporters,
community members, offenders and their supporters, judges, prosecutors, defense
counsel, police and court workers on an appropriate outcome that addresses the worries
of all interested parties. The only aim of this process is to heal the affected party by
giving the offender an opportunity to offer some kind of reparation.12This process is
prevalent in many aboriginal communities in Canada.
 Indigenous and Customary Justice Forums: Instances of the Restorative Justice
approach were additionally found in past circumstances as Customary approaches. These
indigenous and customary practices have served as the foundation for the modern
approaches of restorative justice. In fact, two of the most important forms of restorative
justice family group conferences and peacemaking circles are adaptations (but not
replications) of the above traditional ways.13 Countries like Australia, Canada, Nigeria,
Uganda, Philippines, New Zealand, etc. have their own Indigenous and Customary
Justice practices which in one way or other promote the idea of restorative justice with

Supra Note 6, at pg. 20.
Department of Justice and Constitutional Development REPUBLIC OF SOUTH AFRICA, ‘RESTORATIVE
JUSTICE: the road to healing’, available at (last visited on
March 4th, 2018).
at (last visited 4th March, 2018).

the aim to restore social responsibility, compromise between the offender and the victim
and a sense of equity.14


The Indian Criminal Justice system is based on Retributive theory. The main concern of the
system is to inflict punishment on the offender and provide compensation to the victim. As a
result, the focus is on the offender and the needs of the victim are not given importance. There is
no law in India regarding victim so they can have any say in criminal justice system.

In the famous case of Jennison v. Baker15 it was stated that “Law should not sit limply, while
those who defy it go free and those who seek its protection lose hope.” The said quote aptly
describes the present Criminal Justice System in India where there exist various maladies such as
political corruption, lack of co-ordination in the system, delay in disposal of cases, complex and
expensive procedures, which lead to large scale acquittals thereby allowing the offenders to defy
the law and leave the victims with no hope.

Besides these technical and procedural flaws in the Criminal Justice System, the biggest
shortcoming is the indifferent attitude towards the redressal of ‘plight of the victim’. “Victim"
means 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.16

However, all of the above said maladies can be reduced and the victim can be given the needed
justice and rehabilitation through the adoption of Restorative Justice System alongside the
prevalent criminal justice system, which not only punishes the offender but also make restitution
or perform compensatory services for the victim of his crime and the community.17

Aditi Sharma & Vangara Krishnapallavi, “RESTORATIVE JUSTICE: A COMPLEMENT TO THE
Jennison v. Baker, (1972) 1 All ER 997
§ 2(wa), as inserted by CrPC (Amendment) Act, 2008 w.e.f. December 31, 2008.

In India, the principles of Restorative Justice have been reflected through the Indian
Constitution, The Code of Criminal Procedure, 1973 and the Probation of Offenders Act, 1958
where the rights of the victims have been recognised and compensatory schemes have been
introduced. This shows the slight inclination of the judiciary and the legislature in recognizing
the implementation of the principles of Restorative Justice as a complement to the present
Criminal Justice System.

A beginning of Restorative Justice can be seen in the section 320 of criminal procedure code,
1973. It states compounding of offences. It is an effort to incorporate Restorative justice into the
prevailing system.18 This gives the victim an opportunity to mediate with the offender and
compromise, although, the consent of the court is required to finalize the case and agree with the
mediation and compromise. But this may not always provide satisfaction to the victim. Many a
times, compromise is done due to coercion, force or the corruption. The victims are not provided
remedies in such cases. In the name of Restoration, it is simply disposing off of the cases. The
main objective of restorative justice that is the realization of the crime by the offender and thus
repairing the harm caused to the victim remains unaddressed. The offender simply escapes from
the punishment through this practice.

Therefore, it is high time that restorative justice as practiced in many countries be introduced in
India for addressing the anguish of the victims. It would require that both sides are properly
counselled about the process which will require them to meet each other in person to work out
the best solution within the periphery of law. Before setting up the restorative justice meeting, it
must be ensured that the wrongdoers are ready to accept their actions, are really repentant, and
are willing to meet the victims’ families and apologise. They should also be ready to right the
wrong done by them as jointly decided in the meeting.19

R.Thilagaraj, Jianhong Liu, ‘Restorative Justice in India: Traditional Practice and Contemporary
Applications’, Springer Series on Asian Criminology and Criminal Justice Research, Springer, 2017
Ved Kumari, 'Punishment' beyond prison: It is time to explore restorative justice for crime’, Apr 28, 2016 10:25
AM available at
for-crime-2752930.html (Last visited on 3rd March,2018)


To look at it in a way, the idea of Restorative Justice was not new to India. The Panchayat
system as a process of settlement of disputes has been in existence in India since ancient times.
In pre-British days, it was not possible for the villagers to come to the court of their king and
pray for justice, and judicial power was never vested on, or exercised by, specified persons. In
these circumstances, villagers used to agree to refer their disputes to five responsible persons in
the village, whose collective decision they acknowledged without resistance.20

The dispute resolution mechanism adopted by the Panchayati Raj primarily focused on the
interests of the victims over other elements involved. This was nothing but what we call now to
be the Restorative Justice System. In majority of the situations, the offenders were made to
restore or compensate the harm that was done to the victims. Therefore understanding the need
for such implementation, the Law Commission in its 114th Report on “Gram Nyayalaya” stated
the need for the Village Panchayat in resolving the disputes. Further, the Gram Nyayalaya Act
of 2008 and Nyaya Panchayat Bill of 2009 were introduced to revitalize and bring back into
picture, the Restorative Justice mechanism already prevalent in the Panchayati Raj System.21

Apart from these, the glimpses of the concept of Restorative Justice can be seen through The
Juvenile (Care and Protection of Children) Act, 2015. The Act aims to provide proper care,
protection and treatment of the juveniles in conflict of the law.22When a juvenile commits a
crime, they are treated separately. They are kept in observation homes during the pendency of an
inquiry under this Act.23There is care and classification done keeping in mind the age, physical
and mental status and degree of offence committed by the Juvenile.24 But one of the problems
faced in introducing restorative justice is that a child in a child care institution is treated as a
number and no effort is made to introduce any individual child care plan.25

S. Latha & R. Thilagaraj, ‘Restorative Justice in India’, Springer Asian Criminology (2013) at pg. 4-5. Available
at (Last visited on 4th March,2018)
Supra Note 13 at pg. 7.
JJ Act,2015
Section 8 of The Juvenile Justice Care and Protection of Children Act, 2015.
Re: Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India (UOI) and Ors.

Apart from the juvenile crimes, the Restorative Justice practices are also seen in the cases of
child abuse. Children are often been subjected to various sorts of torture and injuries by parents,
care takers, employers etc. The Legislature however, has taken into consideration the need to
strengthen the position of the child victims and has enumerated various statutes and programmes
such as National Commission for the Protection of Child Rights, Juvenile Justice (Care and
Protection of Children) Act 2015, the Child Marriage Restraint Act 1929, Immoral Trafficking
Prevention Act etc., The Indian penal Code, 1860, The Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 etc. Besides these, there is also a constitutional
support given to the child abuse victims enshrined through the Articles 14, 15, 15(3), 21, 21(A),
23, 24, 39(e), 39(f) of the Indian Constitution.

Further, if we looked into the crimes committed against women, the Criminal Justice System
seems to have implemented the restorative approaches if not to the maximum but atleast to some
extent. Since the dawn of Indian Independence and even prior to that, women have always been
subjected to various sorts of crime. These may include rape, dowry death, bride burning,
domestic violence, acid attacks etc. However, the legislature and the judiciary have played an
active role through the Protection of Women from Domestic Violence Act, 2005 in the cases of
domestic violence which solves the issues in the restorative justice approach by emphasizing on
the needs of the women victim.26

Further, in cases of rape there is interim and final monetary compensation and assistance that is
provided. Also, section 327 of the Cr.P.C. also provides for relief to the victims of crime by
conducting the trial in camera. Also, placing reliance on the case Delhi Domestic Women’s
Forum v. Union of India27, there has been constitutional support under Article 21 to the victims
of rape as it was stated that right to life included right to live with dignity.28Further through the
case of S/o Maharashtra v. Chandra Prakash Mewalchand Jain29 and Shri Bodhisattwa
Gautamv. Miss Subhra Chakroborthy30the courts have given the privilege to the women victims
to keep their name in anonymity.

State of Punjab v. Ramdev Singh, AIR 2004 SC 1290
(1995) 1 SCC 14
AIR 1981 SC 746
AIR 1990 SC 658
AIR 1996 SC 922

The fragments of Restorative justice could be further seen in the Indian legal system by the
adoption of Plea bargaining and Lok Adalats.31 The concept of ‘Plea Bargaining’ was adopted by
the 177th law commission report with support of the Malimath Committee Report in 2003. In
effect to this Chapter XXII of the Cr. P.C. has been added with section 265A and 265L which
specifically talk about Plea Bargaining. Plea-bargaining is a pre-trail negotiation that is done
between the defence and the prosecution, where the defence pleads guilty and requests the
prosecution to aid some concession. The defence in this case acts as a mediator in order to
resolve the quantum of compensation.32

Similar to Plea-bargaining, Lok Adalats are special courts that deal with certain matters in a very
restorative manner. These courts aim at resolve the dispute by direct talk with the litigants and
urge the spirit of practice of “restorative justice.”33Cases such as the Landlord-tenant dispute,
compoundable offences, matrimonial cases including property in the form of debt, securities,
guardianship, Custody of children are dealt by the Lok Adalats.34

The other aspect which manifests the restorative justice principles are the Open Prison system.
The Open Prison system has no armed guards, no confined walls and other security. The
prisoners in this case are made to move freely and are taught to maintain self-discipline and
strive for their livelihood through labour. This approach is nothing but a reformative and
rehabilitative approach to restore the life of the offender in the prison. It believes in providing
therapeutic and other correctional treatments35 that can further compensate the victim.36

Further, the sight of Restorative justice is also seen through Article 141 of the Indian
Constitution, where the state is meant to make suitable provision for securing rights towards
education and public assistance in case of unemployed, old age, sick and disabled victims,
Section 358 of Cr.P.C, 1973, which deals with compensation to persons who are groundlessly
arrested and Section 359 which deals with the mandate to pay costs in the case of non cognizable

Supra Note 13.
Soura Subha Ghosh, “Plea Bargaining - An Analysis of the concept”, available at (Last visited on 5th March,2018)
Supra Note 14 at pg. 8-9.
Umed Singh and another v. State of Haryana, AIR 2012 P&H 1056.
State of Gujarat v. Hon'ble High Court of Gujarat, AIR 1998 SC 3164.

offences. Also, it is seen in Section 5 of the Probation of Offenders Act, 1958 which deals with
the required offenders to pay compensation and costs.

Principles of Restorative justice reflected under Section 357 of the Criminal procedure Code,

The major motive of the ‘Restorative justice system’ concept is to protect the interests of the
victims by involving them actively in the crime resolution process and to adequately compensate
the victim for the harm caused either by the offender or the State.37

Section 357 of the Criminal procedure code, 1973 specifically talks about the court’s order to
compensate the victims. In brief this provision states:

There should be compensation awarded to the victim who has suffered loss due to the offence
(Section 357 (1) (a) and (b)) and in the case of claiming damages under the Fatal Accidents Act,
1855 from the accused for the death, the person who is capable to claim damages can claim them
(Section 367 (1) (c)). Further, this provision also states that in the case of theft, misappropriation,
criminal breach of trust, cheating and stolen property the court may order the offender to
compensate the bonafide purchaser for the loss suffered by him due to property being returned to
the true owner. It further states that, where a sentence doesn’t contain any fine, then the court
shall order the accused to pay the victim certain amount to compensate the loss suffered by him.

Following this, through the Cr.P.C Amendment Act, 2008, Section 357A was inserted which
talks about the Victim Compensation Scheme. It states that the State Government along with
the Central Government shall prepare a certain scheme/fund in order to compensate the victim or
their dependents who have been a part of the loss caused due to the crime and need
rehabilitation. The quantum of compensation however, will be decided by District Legal service
Authority or the State Legal Service Authority with the recommendation of the court.38

This section also states that, if after the trial, the trial court is not satisfied by the quantum of
compensation awarded for the adequate rehabilitation, then it can recommend for more. Also, in

Aditi sharma & Vangara krishnapallavi, Restorative justice: A complement to the prevailing criminal justice
system, droit penale: indian law journal on crime & criminology (online), vol. 1 issue 2

Section 357A (2), Code of Criminal Procedure, 1973

cases for the offender is not traced but the victim is identified, then in such cases with an
application to the State or District Legal Services Authority and further with verification within 2
months the compensation is paid.39

Further, State and the District Legal Services Authority may alleviate the suffering of the victim
by ordering immediate first aid facility or medical benefits to be made available free of cost with
necessary certificate to the police officer.40Therefore, this provision holds the essence of
restorative justice by providing reparation to the victims through paying compensation and

The above mentioned were the fragments of the restorative justice principles reflected in various
legislatures in India. On the other hand, there have also been judgments which focused on the
plight of the victims.

In the case of State of Gujarat v. Raghavbhai Vashrambhai and Ors,42Justice J.N. Bhatt stated
that “In a realm of victimology the decision is one of the aspect towards fulfilling the design and
desideratum and restorative justice to the victims of crime.......”

In the case of Bhagwan Kaur vs. State of Punjab43, the honorable Justice Viney Mittal of Punjab
and Haryana High Court observed that “Compromise in modern societies is the sine qua non of
harmony and orderly behavior. It is the soul of justice and if the power of the court is used to
enhance such a compromise, which in turn, enhance the social amity and reduces friction, then in
truly is finest hour of justice.”

In another case of Anupam Sharma v. NCT of Delhi and Another,44 the Hon’ble Justice
Pradeep Nandrajog stated that ‘Restorative justice’ may be used as a synonym for mediation.
The object and nature of restorative justice aims at restoring the interest of the victim.
Involvement of the victim in the settlement process is welcome in the process of restorative
justice. It is a process of voluntary negotiation and concentration, directly or indirectly between
the offender and the victim.
Section 357A (4), Code of Criminal Procedure, 1973
Chairman, RailwayBoard v. Chandrima Das, AIR 2000 SC 988
Supra Note 29.
(2003) 1 GLR 205
AIR 1963 P H 522
(2008) DLT 497

In Sunil Batra v. Delhi Administration45, Justice Krishnaiyer stated that “whenever a punitive
response is awarded to an offender, it must be oriented to restorative measures and not just to

Various Judges of High Courts in India now realize the importance of Restorative Justice, which
is a non-stigmatizing, economically viable and socially practicable, fair and just process. Albie
Sachs, a former judge of the Constitutional Court of South Africa, noted that “Restorative justice
is a system of justice which restores harmony in society; it is a system where everybody lives
together and it happens to fit comfortably with Gandhian philosophy.”46 Until recently, the
criminal justice system was all about crime and punishment. The concept of restorative justice is
helpful in the manner that assists the courts to address the causes and effects of crime, as well as
its unintended consequences to the parties.


The UK is not homogenous in its criminal justice system. England and Wales have identical
provisions. The criminal justice system in Northern Ireland is similar to England and Wales, but
some provisions do not apply or are applied differently. Scotland has a completely different
criminal justice system in which young people are dealt with by Children’s Panels rather than by
courts. Until recently there has been no specific legislation to restorative justice in the UK. This
section will talk about how the concept of restorative justice has been implemented in UK and
what India should learn from UK.

Development of Restorative Justice in England and Wales

Restorative Justice in England and Wales was first introduced in the late 1970’s by a relatively
small number of social workers and probation officers who had been impressed by the restitution
projects in North America.47 In 1974 the first Victim Support Scheme was set up followed by
many other similar schemes and the formation of the National Association of Victim Support

1980 3 S.C. 488
Goa News (2011) February 10. Available at (Last visited on 9th March,2018)
Philippe GAILLY, Restorative Justice in England and Wales,2003

Schemes (NAVSS) in 1979. The purpose of the Victim Support is to provide emotional support
and necessary guidance to victims of crime.

In 1990 the Family Rights Group, a national voluntary organization in the UK invited New
Zealand practitioners to the UK to talk about their restorative justice experiences. The Family
rights Group promoted the implementation of family group conferences. These programme
accommodated mainly young offenders. At that time there was no specific legislation in England
and Wales.

With adult offenders, prosecutors are currently most likely to come into contact with restorative
justice when reconsidering the use of reparative conditions as part of a conditional caution. The
Revised Code of Practice for Conditional Cautions-Adults states that when considering the
appropriate conditions to achieve the rehabilitative, reparative or punitive objectives of a
conditional caution, the prosecutor should also consider whether any of the factors stated therein
are applicable to the case.48

Between 2005 and 2009, Home Office pilot projects with adult offenders were completed.
“REMEDI”, a voluntary-sector mediation service organization based in Sheffield, provided
restorative justice services to both adult and youth and 13500 beneficiaries received their
services in one year.49 “CONNECT”50, a voluntary-sector organization in South London, offers
restorative justice for adult offenders and their victims, primarily after conviction and before
sentencing. The “SORI and Sycamore Tree” programmes taking place in adult prisons, giving
the offenders an opportunity to reflect on the impact of their actions on their victims and/or the
community. These projects reach only a little proportion of all the victims of adult offenders.
Less than 1% of all the victims of adult offenders have access to restorative justice. All the above
programs are very different from each other, as they are provided by different organizations,

Available at (last visited on 27th March,2018)
Restorative Justice Consortium July 2009, Engaging Communities in Criminal Justice: The Restorative Justice
Consortium Response available at
Justice%20-%20Response%20of%20the%20Restorative%20Justice%20Consortium.pdf (Last visited in 26 th March
Supra Note 2.

offering different types of interventions and working at different stages of the criminal justice

In May 2012 the Crime and Courts Act52 was introduced to the House of Lords. It is the
biggest development for restorative justice in England and Wales, since legislation introducing
referral order panels to the youth justice system in 1999. This Act ensures that restorative justice
is available at all the stages of the criminal justice system for the first time in England and
Wales. This legislation was intended to send a message to the courts that this is a route that they
should consider, and supporting guidance has subsequently been published.53

Another development is the Offender Rehabilitation Act, 2014.54 It provides that activities that
responsible officers may instruct offenders to participate in should include, among others,
activities whose purpose is reparative, such as restorative justice activities.55

In 2013 the Victim Support in co-operation with Restorative solutions operated the first victim
led restorative justice programmes in 10 Crown Courts in England and Wales.56 This was aimed
at cutting the rate of reoffending and brings victims and offenders together to repair the harm
caused by crime. The programme deals with serious crimes of robbery, higher level of theft and
assault cases.57 In addition to enabling restorative justice to take place where cases do go to
court, some progress has been made in enabling restorative approaches to be used where cases do
not merit prosecution.

The England and Wales governments have taken restorative justice seriously and as a result to
imbed the use of restorative justice within the criminal justice system, it has produced an action
plan to develop the use of restorative justice, introduced pre-sentence restorative justice through
the Crime and Courts Act 2013, includes restorative justice for the first time in the revised

Shapland et al (2007), Restorative Justice, The views of victims and offenders: The Third report from the
Evaluation of three Schemes.
Available at (last visited on 27th March,2018)
Collins J.(2015), Restorative Justice in England Wales: from the margins to the mainstream, An International
Journal, 3(1), 129–134
Available at (last visited on 27th March,2018)
Section 15, Offender Rehabilitation Act, 2014
Janet Bright, Improving victim take-up of restorative justice, A Restorative Justice Council research report,
February 2017
Available at (last visited on 27th March,2018)

Victims Code which came into force on 10 December 2013.58 The main reason was to raise
awareness of restorative justice amongst victims of crime.

The Restorative Justice Council produced Information Pack in December 2014 titled
“Restorative Justice in the Magistrate’s Court: Information Pack” in order to raise awareness
of restorative justice among magistrates. The information pack, further, guides the magistrates on
how to facilitate pre-sentence restorative justice and how to facilitate restorative justice as part of
rehabilitation activity requirement. Standard 2 of the CPS Core Quality Standards (CQS)
stipulates that: “we will use out-of-court disposals as alternatives to prosecution, where
appropriate, to gain speedy reparation for victims and to rehabilitate or punish offenders”.59

Types of restorative justice practices in England and Wales

Mediation is one of the most commonly used forms of restorative justice in Europe and more
specifically in England and Wales. It takes place in a controlled environment under the
supervision of a trained mediator and after the offender has admitted guilt. There are two forms
of mediation in England and Wales, namely Indirect and direct mediation.

 Indirect Mediation60

With indirect mediation, the victim and the offender don’t meet face to face but the message is
passed by someone between the victim and the offender, such as the facilitator who will mediate
the process. Any other form of communication may be used without the victim and the offender
coming into contact with each other. Indirect mediation, in my opinion is not good method as it
doesn’t provide the victim with an opportunity to engage face to face with the offender in order
to tell the offender about the impact of the crime and to receive answers directly from the
offender to lingering questions about the crime and the offender.

 Direct Mediation

Core Quality Standards issued by the director of Public Prosecutors, England and Wales, November 2009,
available at (last visited on 27th March,2018)
Restorative justice Council: restorative Justice in the magistrates’ court, available at (last
visited on 28th March,2018)

This is a face to face meeting between the victim and the offender but the communication is
guided by a facilitator. Any interested party may be involved in the process, such as the victim or
the offender’s family and also the members of the community in general. A contract should be
concluded to decide how best to repair the harm caused and a rehabilitative programme may be
agreed upon.


REMEDI and CONNECT which provides restorative justice services to adult offenders reported
that no offenders suffered any negative effects of mediation. However, although most victims
were also satisfied there was a number that indicated their unhappiness.61

 Community Conferencing

This process involves many people, for example, the community and a number of offenders and
victims. It is a large scale conference particularly useful at resolving anti- social behavior.62 The
offenders and the victims meet face to face in this conferencing. In this approach the community
as a whole is often the victim. This process is similar to community problem solving meetings.
However, it is restorative in nature as the process focuses on the harm caused and its resolution

 Referral Order panels

This applies to young offenders who received a court referral Order attend a panel meeting to
discuss their offence and the factors that may have contributed to their offending behavior. The
panel is made up of youth Offending team staff and community volunteers. If necessary, the
victim or any person appearing on behalf of the victim may also attend so that the views of the
victim may be put forward

Legislative framework

Supra Note 5.
Available at!/file/RestorativeJustice2ndReport.pdf (last visited on 28th

Until May 2012 there has been no specific legislation for restorative justice in England and
Wales. The Crime and Courts Act which came into effect in 2013, gives the magistrates and
crown judges the power to defer passing a sentence in order for restorative justice to take place.
This will happen in the circumstances where the victim and the offender are willing o participate
in the restorative justice program. The introduction of the Crime and Courts act ensures that
restorative justice is available at all stages of the criminal justice system. Sections 7 and 8 of the
Code for Crown Prosecutors provide guidance to Prosecutors on alternatives to prosecution for
adults and youths, including conditional cautions.63

However, Ministry of Justice64 in England and Wales has put a lot of thought in Restorative
Justice processes and schemes. They plan to handle certain issues in relation to Restorative
Justice, both in terms of offenders and victims. They plan to introduce restorative justice in the
form of conferencing between victims and offenders, community conferences, mediation
between victims and offenders to discuss the offence and the effect of it, and even indirect
mediation through telephones or video conferencing. This indirect mediation can lead to face to
face mediation in the future. There are, of course, problems in relation to applying restorative
justice processes and schemes. There is low public awareness of restorative justice, especially
amongst victims. There is a lack of clarity, and often misunderstanding in what exactly
restorative justice processes are to victims. Likewise, criminal justice agencies have a ‘patchy
understanding’65 of the role and outcomes of restorative justice - a common question in relation
to criminal justice cases. There also needs to be on-going monitoring and evaluation of
restorative justice processes to further improve them.

The Government is taking steady actions to tackle these current issues. They plan to provide high
quality and easy access to Restorative Justice processes to make the public and Restorative
Justice practitioners aware of Restorative Justice as an option, to make skilled Restorative Justice
facilitators available nationally and to understand its effect on victims, offenders and the
community. The Government plan to make Restorative Justice available to all stages of the
criminal justice system, and are working hard to do so. However, there is one limitation in lack

CPS Code for Crown Prosecutors, 7th edition, 2013. available at (last visited on 29th March 2018)
Ministry of Justice, Restorative Justice Action Plan For The Criminal Justice System (2012)

of statutory foundation for Restorative Justice for adults. There is no legislation currently relating
to Restorative Justice, so it tends to vary frequently. It would be good to have an act outlining
general guidelines and rules in relation to such practices.

Therefore, it can be concluded that Restorative justice processes in England and Wales are
mainly used for youth offenders. However, although there is a legislative framework currently in
place, there is still more that needs to be done to make restorative justice a reality in England and
Wales. Substantial progress has been made in recent years in building on hard work by pioneers
organizations and individuals and there are positive signs for the future.66

The Government of England and Wales is taking restorative justice serious and have introduced
measures to raise awareness of restorative justice amongst victims of crime. It has also issued
Core quality Standards wherein it stated that the prosecution services will use out of court
disposal as alternatives to prosecutions.


The United States legal framework is much different from that of UK and India. While there is
federal criminal law, only specific crimes fall under federal jurisdiction. When looking for
federal statutes which contain the word "restorative justice," only four federal laws are available.
They all relate to the work of school resource officers and list restorative justice as a possible
intervention.67The states, however, have implemented much restorative justice. As of 2001,
twenty-nine states had implemented restorative justice within this statutory framework. These
statutes relate to many applications of restorative justice. While only nineteen states have
actually used the words "restorative justice" in their language, at least twenty nine states have
actually authorized some aspect of it.68

Supra Note 7.
Joanne Katz; Gene Jr. Bonham, Restorative Justice in Canada and the United States: A Comparative Analysis, 6
JIJIS 187 (2006)

Texas has one of the largest programs for violent offenders in the country.69 It was established to
provide for the needs of victims to meet with the person who harmed them or a loved one.

United States offer a wide range of restorative justice practices, programs and policies. Victim –
Offender Mediation is the most important form of restorative justice program that is practiced in
the US. A national survey which provides an overview of the type of cases typically brought to
mediation under the VOM in the United States concluded that juvenile offenders are the primary
focus. Only 9 percent of VOM programs nationwide are focused on adults alone.70 About eighty
per cent of the VOM participants were satisfied in the process which leads to the impression that
it provides a fair treatment. According to the participants the process was fair to both sides and
that the resulting agreement was fair.71 In the United States, victim-offender mediation has also
been used with homicide and sexual assault and even between a murderer on ‘death row’ and the
family of his victim.72

There are individual police departments within the United States, which have used restorative
practices in their policing. In 1999, nine police departments were identified as ones which had
developed policies for police actively being involved in restorative justice.73

Concerns about the application of restorative justice

Critics of restorative justice often argue of it being ‘soft on crime’ or rather it does not
sufficiently convey the seriousness of the offence.74 Concerns has been voiced that offenders and
observers may view the restorative justice process as too easy, thereby reinforcing a belief that
sexual offending can be justified.75

Id at 7
M. S. Umbreit, R. B. Coates & B. Vos, Victim-Offender Mediation: Three Decades of Practice and Research, 22
(1-2) Conflict Resolution Quarterly 52,58, Fall Winter (2004)
M. Umbreit, W. Bradshaw & R. B. Coates, Victims of Severe Violence Meet the Offender: Restorative Justice
Through Dialogue, 6 International Review of Victimology 321-43. (1999).
Supra Note 67.
G. P. Green – Mitchell, Developing a Restorative Justice Framework for Sexual Offenses: Victim Empowerment,
Community Protection & Offender Accountability, available
at, last seen on
28th March,2018
A. K. Gill, India needs comprehensive reform, not death penalty, to deal with violence against women, The f word
blog , available at , last seen on 28th march 2018.

It is also feared that taking sexual offences out of the criminal justice system may “re-privatize”
crimes against women thus enfeebling the effort to make gendered violence a public issue.

Not every offence fits into the design of restorative justice. Though the principles of restorative
justice are sound, they are not necessarily appropriate for every case. The victims of violent
offences may not feel that forgiveness, repentance and remorse are appropriate or even possible.
The victims may not participate voluntarily and the offenders need not be accountable at all
times. Victims of crime should never feel compelled to take part in the restorative process. For
some victims, even the thought of meeting the offender may be very disturbing.

Critics raise concerns that offenders may use power imbalances to manipulate the restorative
justice process.76 They also suggested that the power imbalance present in sexual assault will
skew any restitution agreed to by the parties.77 Moreover, critics fear that victims’ needs will be
overshadowed by a community desire to build consensus, coercing victims into participation, as
well as into accepting an apology victims’ may feel is inappropriate.

Concern also expressed with using community based restorative justice programs to deal with
sexual violence. It is suggested that community norms may reinforce victim blaming. 78 Also, that
given the cost of treatment and monitoring for sex offenders, and the emotional needs of victims,
restorative justice programs based in the community may lack resources to treat offenders and
assist victims.79 Finally, that community based programs may not have stringent requirements for
training employees or rigorous program evaluation methods.

The perception of justice is different for different people. The traditional belief law has instilled
is that justice is effectively delivered by punishing the perpetrators. But the society has now
awakened to realize that the punitive options under the current system are neither in the society’s
long term interest nor do they serve as an effective deterrent. Some victims demand for a benefit
in the long run by restitution or restorative method. However, this ‘justice deadlock’ can be

A. K. Gill & K. Harrison, Sentencing Sex Offenders in India: Retributive Justice versus Sex-Offender Treatment
Programmes and Restorative Justice Approaches, 8 (2) International Journal of Criminal Justice Sciences 166, 170
(2013), available at, last seen on 28th
A. W. Dzur, Civic Implications of Restorative Justice Theory: Citizen Participation and Criminal Justice Policy,
36 (No. 3/4) Policy Sciences 279-306 (2003).

overcome by adopting a “more sophisticated way of thinking about the nature of goals of a
punitive response – one that incorporates both compassion and condemnation, both healing and
justice.80 Hence there should be balance of justice. Many important reforms have taken place to
substantive, evidentiary and procedural rules but these have pressed the adversarial trial almost
as far as it can go without breaching general criminal justice principles.

The reality in the United States is that many programs have been developed without statutory
authority. In Missouri, while no restorative justice language is found in the juvenile code, many
courts throughout the state have implemented programs. Utilizing the authority of the juvenile
court, judges and/or juvenile officers have chosen to have restorative justice programs.81

Currently in the U.S., restorative justice is most often used in the context of youth offenders and
the juvenile justice system. Especially due to the extremely high rates of recidivism in the
juvenile justice system, restorative justice, which often produces extremely low recidivism rates,
is becoming increasingly popular as an alternative to incarceration in many juvenile courts across
the country.

Therefore, it is concluded that in the United States it seems far more dependent on the state
and/or the people involved in developing alternative programs. While there have been some
legislative mandates, they have not been comprehensive throughout the states. Some states have
provided for the financial development of restorative justice programs, while others have no
programs at all.



With millions of cases pending, with cumbersome and expensive court procedures, with
hundreds of reports from the Law commission and several other organisations requesting for a
reform in the Criminal Justice System, it can be clearly stated that the present Criminal Justice
System has failed to administer justice to the fullest.82 Nevertheless, the present Criminal Justice

P. D. Haveripeth, Restorative Justice and Victims: Right to Compensation, 2(2) International Research Journal of
Social Sciences 43,43, (2013) , available at , last seen on 29th March, 2018.
Supra Note 67.
Rakesh Kumar Handa, Restorative Justice from Victimology Perspective and its Utility in India, Available at

System has provided justice to some extent or the other, but this is only twenty percent of the
whole. Presently, it has been recorded that more than 70% of the victims are sidelined for
decades together due to the various drawbacks that are prevalent in our Criminal Justice System.
Therefore, adopting an alternative system like the Restorative becomes a mandate and not an
If Restorative Justice Principles are effectively applied in the Indian Criminal Justice System
then high results can be yielded out of it. Suggestions for effective implementation of Restorative
Justice System in India are as follows:
1. Increasing Victim Participation: As stated previously, a victim to a crime is a mere
witness and does not hold a significant position. Being the most affected person in a
crime, the victim should be given an opportunity to adduce the evidence in regards to his
loss, pain and suffering and assist the court in determining the quantum of
compensation.84In certain cases, where the prosecution may withdraw the case, the victim
should be given a chance to assist the court and offer the responsibility to continue the
To further strengthen the role of a victim, the programmes such as Victim offender mediation,
Family and community group conferencing, and sentencing circles etc. which bring the victim
face-to-face to the offender must be effectively adopted in India and corrective measures should
also be taken in order to check on such implementation. The legislature should also extend its
hand in making suitable laws for the implementation of the said programmes.

Besides the above, the inclusion of the principles of Restorative Justice in the legislations of the
following crimes shall automatically increase the role of the victim.
A. Juvenile Crimes: The major motive of the Juvenile (Care and Protection of Children)
Act, 2015, aims to restore the juvenile offender through training, rehabilitation and
education. Similarly, bringing the juvenile in direct talk to the victim where the victim
shares with the juvenile the loss suffered to him due to the crime will enable the juvenile
offenders to understand the harm caused by their behaviour and further make necessary (last visited April 1, 2018)


amends to their victims and communities. This shall not only adhere to the interest of the
juvenile offender but also to the interest of the victim.
B. Women and children related crimes: There have been numerous legislations and
judgments in favour of women and children in the recent times. Nonetheless, the above
are providing justice and compensation85 to the victims but what has been sidelined is the
recovery of the victim after crime. This shows the inefficiency of the state to totally
resolve the trauma of the victim.
Therefore, by enforcing the principles of Restorative Justice which not only focus on
compensating the victims but also focus on reforming them in a way to get back to life
will yield better results to the victim in the long run.
C. Encouraging Plea Bargaining: Plea bargaining is a recent concept which enshrines the
principle of Restorative Justice. In this procedure, the victim plays a pivotal role in
deciding the case. Moreover, the major principle of Restorative Justice that is to balance
the interest of both victim and offender is clearly seen through plea bargaining.
Therefore, by encouraging the practice of Plea bargaining, the victim is made a
substantial part of distribution of justice.
2. Adoption of useful features of Inquisitorial System: Our Criminal Justice System, to a
large extent, is inclined majorly towards the accused and is seen to be insensitive to the
rights and plight of the victim. This has caused a great loss of confidence of the people in
the justice system. Therefore, there is an ardent need to come with a system which a
convergence of the positive feature of adversarial and inquisitorial legal systems.86
Although it is observed that our adversarial system assures better fairness of trial, yet it
lacks dynamism due to the absence lofty ideal to inspire. On contrary, inquisitorial
system has been entrusted with a positive duty to discover truth by the active
participation of the Judges themselves. We should come up with a legal system in which
the Judge should not simply sit as a mere referee or umpire at a contest between the
prosecution and the defence trying to prove their argument,87 rather there should be pro-
active participation of the Judge so as to surface the truth and to ensure that the justice is
being done. Further, he should be given power to give instructions to the investigating

§357(1), Code of Criminal Procedure, 1973 (Act 2 of 1974).
Supra Note 1.
Ram Chandra v State of Haryana, AIR 198 SC 1036.

officers and the prosecution agencies for the seeking the truth in order to impart complete
justice to the victims.
In order to amalgamate the beneficial features of the inquisitorial system with our
Adversarial system we do not need to introduce new procedures or come up with a new
statute altogether. The existing provisions, to a great extent, will fill up the gaps, if
interpreted in an appropriate manner. For instance:
 Under Section 482 of the Code of Criminal Procedure, Inherent powers can be exercised
in the interest of justice, in the absence of a statutory provision to meet the situation.88
Inherent powers should be granted to the other subordinate criminal courts. By the use of
the inherent powers the judicial officers or judges can increase their part in quest for the
truth in order to provide complete justice.
 A provision similar to Section 311 of the Code of Criminal Procedure can be inserted in
the court where the courts should be given power to issue directions to the investigating
officer or the supervisionary officer to take appropriate actions for proper or adequate
investigation in order to support the Court in discovering the truth.
All such modifications to our present Criminal Justice System, by the adoption of the
some good and useful features of the Inquisitorial System will definitely strengthen our
3. Effective implementation of Section 357A of Cr.P.C: It has been noticed that there is
very little implementation of Section 357A in the past seven years of its enactment. It has
been recorded that the upper limit of the compensation decided by the State and the
District legal service authorities have been arbitrarily low and not in accordance to the
intent of the legislature.
Further, the interim relief that has to be provided under section 357A (6) has also been
noted to be low and not according to the gravity of the crime. Therefore, in order to
overcome such shortcomings, the following suggestions can be implemented:

Supra note 78, at 30.

i. The quantum of compensation decided by the court shall be solely on the basis of the
facts and circumstances of the case.89
ii. Workshops have to be organised for the lawyers, judicial officers and public prosecutors
in order to make section 357A more operative.
iii. Along with the quantum of compensation that has to be paid, the time within which it has
to be paid should also be decided. Necessary measures should be taken to see that the
offender pays the said compensation.
Along with the above stated suggestions which can administer justice to the maximum to
the victims the following measures can also be adopted:
1. The victims should be made aware of the violation of their rights and exploitation they
have faced. There shall be establishment of victim literacy camps to allow them
understand the situation and stand up for their own rights.
2. Along with the various support lines that the state provides for its citizens, a Victim
helpline can also be provided for the victim and their relatives to address their grievances
over a telephonic conversation which can save a lot of time and resources
3. The above suggestions should be implemented properly even in the lower courts which
can reduce the procedural technicalities and the delay in justice.
4. Apart from the State, the community as a whole should come forward and take initiatives
to rehabilitate the victims especially in cases of rape, acid attack, domestic violence etc.

Satya Pal Anand v. State of M.P. (2014) 4 SCC 800; In re Gang Rape Ordered by Village Kangaroo Court in
W.B., (2014) 4 SCC 786.


Restorative Justice System gives answers to the lacuna present in the current Criminal Justice
System along with new approaches of responding to them. The Restorative Justice System not
only includes the State and the offender but also includes all the affected parties involved in an
event of crime. It focuses on reparation of the victims by providing rehabilitation and
compensation, transformation of relationship between people along with the social and physical
environment, enabling the offender to understand the harm caused by him and preventing him
from doing it in future. All of the above seem to be absent in the Criminal Justice System.

The Criminal Justice System aims solely on providing punishment to an offender for violating
law, whereas, Restorative Justice looks beyond it by taking into consideration the harm caused,
the reasons for it and the responsibility of the offender to correct such wrong by providing the
necessary aid to the victim. Further, Restorative Justice gives opportunity to the victims in order
to understand the harm inflicted upon them, the violation of their rights and what has to be done
for the reparation of such harm inflicted on them, which is seen to be sidelined by the present
Criminal Justice System.

Therefore, all of the above makes it evident for the need of restorative justice system in India.
However, taking into consideration the gravity and nature of different crimes it is not possible to
apply restorative justice principles on all of them. What the present paper proposes is to let the
adversarial system of Criminal Justice System remain for grave offence and adopt other models
of effective resolution such as Restorative Justice System alongside of it. The change of the
Criminal Justice System to the Restorative or Victim Justice System as discussed throughout the
paper shall be perceived complementary and not contradictory to the existing Criminal Justice

In conclusion the present paper takes a stand that the current Criminal Justice System
complementary to the Restorative Justice System and shall not only yield better administration of
justice but also bridges various gaps present in the prevalent Criminal Justice System.


Books and Reports:


251 (1st ed. 2016).

2. The Law Commission of India, 154th report on the Code of Criminal Procedure.

3. Ministry of Justice, Restorative Justice Action Plan For The Criminal Justice System


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Volume 3; Issue 3; May 2017; Page No. 39-44

2. Dignan & James, Understanding Victims And Restorative Justice, (Open University
Press), 2005, 94.

3. Theo Gavrielides, Restorative Justice Theory and Practice: Addressing the Discrepancy (Criminal
Justice Press, Helsinki,), 2007, 21.

4. United Nations Office on Drugs and Crime, Handbook on Restorative Justice

Programmes, Criminal Justice Handbook Series, New York, 2006

5. Dr. Mark Umbreit & Dr. Marilyn Peterson Armour, “Restorative Justice Dialogue: An
Essential Guide for Research and Practice”, Springer Publishing Company, 2010

6. Department of Justice and Constitutional Development REPUBLIC OF SOUTH AFRICA,

‘RESTORATIVE JUSTICE: the road to healing’


8. Aditi Sharma & Vangara Krishnapallavi, “RESTORATIVE JUSTICE: A


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Contemporary Applications’, Springer Series on Asian Criminology and Criminal
Justice Research, Springer, 2017

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12. Philippe GAILLY, Restorative Justice in England and Wales,2003

13. Collins J.(2015), Restorative Justice in England Wales: from the margins to the mainstream, An
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