Restorative Justice

By Nandini Rao Budhagavi

“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” says John Stuart Mill. Here John Stuart Mill argues that there is only one possible limitation to personal freedom when that freedom does harm to others. John Stuart Mill’s harm principle was based on the central idea of liberalism. Where he said that people are free to do anything at their liberty to gain happiness unless their actions cause harm to somebody else. The phrase “your freedom to swing your fist ends where my nose begins” encapsulates the whole idea of harm principle. The word ‘harm’ can be defined as a deliberate infliction of one’s own interest upon the rightful prospects of others.

This idea was built upon to understand the very existence of a State. Several theories were propounded by great philosophers to prove the need of a State. The central idea upon which the arguments were built were that an authoritative body capable of administering autonomy to the subjects, granting justice to its people, envisaging equality and to provide happiness and human flourishing. These theories act as a testimony to the fact that a state is built upon to create conditions for peaceful co-existence and violators of the same be reprimanded. But the peaceful co-existence does not discriminate between the offenders and sufferers. Peaceful co-existence extends even after the offender has served his rightful sentence and plays an important role in being accepted by the society.

The central argument for the sovereign was that, for everyone, there should be a common power. Which is capable of defending the people from invasions of the foreigners and injury of one another and thereby to secure them in some sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly. The efforts for reintegration of the parties into their communities, not only the offenders but also victims, who are scarred for life but should not be prejudiced by the society. Their inclusion into the society is one way of helping them heal from their wound.

Therefore, restorative justice, in the broadest sense means an act of making amends to the victims due to the harm caused by the offenders, which focusses on cooperative efforts by communities and the government for peaceful inclusion of the parties, which seeks redress for victims, recompense by the offenders and reintegration of both into the community. Restorative justice aims to repair the harm caused by initiating a resolution to address collective decisions of the parties for transforming the relation.

This idea of resolution seeks to go beyond normal legal process which often conflicts with the experienced reality of the victim who was harmed by the offender’s criminal acts. The prime object of criminal law is the protection of the public by maintenance of law and order. Criminal law is narrower than immorality. All those acts considered as immoral are not crimes or offences punishable under criminal law. No one is punished for ingratitude, hard heartedness, absence of a helping attitude, though these are considered as immoral. Such narrow legislation leads to loss of faith in the justice system due to uniform laws for various degrees of crimes. Reparations should happen completely considering the situation the parties are placed.

In a recent judgment, in the case of Anupam Sharma Vs. NCT of Delhi and Anr., the honorable judge Justice Pradeep Nandrajog had observed 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 concertation, directly or indirectly between the offender and the victim.”[1]

In the case of Ratan Singh v. State of Punjab, Justice Krishna Iyer Stated that, “It is a weakness of our jurisprudence that the victims of crime and the distress of the dependents of the prisoner do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the legislature. This can only draw attention to this matter.”[2]

Restorative justice is a very broad approach to crime healing which takes into account the emotional quotient of the victim also. This system can be effectively used for juvenile crimes. Juveniles are in the right state of mind to actually make effective amends for the crimes committed by them. Their minds can be fruitfully nurtured and present to them a different dimension of life outside their corrupted minds. they can be rightfully counselled in order to prevent future crimes. Effective steps taken towards this could open up new contours of justice system which would allow for more pliant approaches for peace co-existence of mankind.


[2] Justice Krishna Iyer; Ratan Singh vs State of Punjab AIR 1980 SC 84

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