Restorative justice is not a new concept which has emerged during recent years. It was in existence in various ancient civilizations of the world such as Babylon and Sumerian civilizations. It was obliterated from the scene only when kingship began to raise its head and took away the function of law and order from the community. Earlier, the system of delivering justice and resolving any matter was in the hands of the community which involved both the offender and the victim. But after kingship, victim was replaced by the State and the parties to a crime reduced from victim, offender and community to State and offender alone.
The traditional pattern of criminal justice system involves the State and the offender since every crime is an offence against the State . But this system leaves behind other components which are either the causes or consequences of the crime. Every criminal activity involves three elements , the victim on whom the crime has been committed, the offender who has committed the crime and the community which gets effected by the consequences of the act.
The State takes over the role of maintaining law and order in the society and hence handles the impact factor on the community at large by punishing the offender but in all these process, the victim is left alone. Restitution and restoration though has been used interchangeably but the two are different. Restoration is the process of bringing an object back to its original position while restitution is the process of making compensation for the losses. Though the literal meaning of both the words appear to be different, the intent of the two words in the world of criminology binds them together. Both the process intends to provide remedy to the victim either by restoring the loss done or through compensation. Tony Marshall defines restorative justice as the process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the offence and its implications for the future. The above mentioned definition takes into account all the parties to the offence into consideration to resolve the issue collectively as far as possible in a cordial manner but fails to take into account the background of the commission of the crime which again is a very important factor for restoration of the victim, offender and the community.
PERSPECTIVE UNDER INDIAN SCENARIO:
The future consequences and the repetition of a crime can only be resolved if the history of the criminal and the factors leading for the commission of the crime is thoroughly studied. Even though all the stake holders in a criminal act are involved to resolve the matter, no permanent and far reaching effect could be reached out unless and until an attempt is made to restore every stakeholder to its original position. Martin Wright comes out with somewhat revised definition of restorative justice. He proposes that the new model of restorative justice should be one in which the response to crime should be not to add to the harm caused by imposing further harm on the offender but to do as much as possible to restore the situation. The community offers aid to the victim; the offender is held accountable and required to make reparation. Attention would be given not only to the outcome, but also evolving a process that respected the feelings and humanity of both the victim and offender. The definition proposed by Martin Wright takes into account all the important components of restorative justice. It takes into account the stakeholders of a crime along with the concern for both victim and the offender. Under the traditional criminal justice system, the victims, offenders and community members felt that the justice delivered did not consider their particular grievances.Henceforth, restorative justice system takes into account all the loopholes of traditional system and gives proper attention on all the vital elements for complete justice. Besides serving as an alternative to civil or criminal trial, restorative justice is also thought to be applicable to offenders who are currently incarcerated. The purpose of restorative justice in prisons is to assist with the prisoner’s rehabilitation, and eventual reintegration into society. By repairing the harm to the relationships between offenders and victims, and offenders and the community that resulted from the crime, restorative justice seeks to understand and address the circumstances which contributed to the crime. This is thought to prevent recidivism(that is, that the offender repeats the undesirable behavior) once the offender is released.
The potential for restorative justice to reduce recidivism is one of the strongest and most promising arguments for its use in prisons. However, there are both theoretical and practical limitations, which can make restorative justice infeasible in a prison environment. These include: difficulty engaging offenders and victims to participate in mediation; the controversial influence of family, friends, and the community; and the prevalence of mental illness among prisoners.
INTERNATIONAL LAW AND PRACTICES:
ENGLAND: Several reformers raged series of movements and proposals to call for the introduction of reformative justice in the justice delivery system. Amongst them Henry Fielding, John Howard and Jeremy Bentham called for segregation of offenders from their criminogenic environment such as doctors would quarantine persons with a contagious disease.
UNIVERSAL DECLARATION OF HUMAN RIGHS: : UDHR in article 3 states that everyone has right to life, liberty and security of person and it does not anywhere mention that offender can be deprived of his security in case he has committed any offence. The declaration in the preamble itself mentions that human right is available to all. Further Article 5 states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. One of the step towards restorative justice finds its glimpse in Article 10(2) International Covenant on Civil and Political Rights which states that the accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvinced persons.
Restorative justice has brought about a new way of thinking in dealing with criminal acts and it has application not only in criminal law but restoration can be done in other fields of law as well. But with relation to bringing about a change in the psychic of a criminal, it is used extensively in criminal matters. It holds the faith that punishment is not the sole remedy and the real root of all criminal activities lies elsewhere.
Judicial authority and popular justice: crimes of passion in Finde Siecle Paris.” The Free Library,2006 Journal of Social History available at https://www.thefreelibrary.com/Judicial authority and popular justice%3a crimes of passion in a0157081639
Maiesi, Michelle “Restorative Justice.”Beyond Intractability Eds Guy Burgess and Heidi Burgess conflict information Consortium, University of Colorado, Boulder posted October 2003 available at https://beyondintractability.org/essay/restorativejustice