Victim Stigmatisation in Restorative Justice

“every justice brings injustice”

The idea about justice is so divergent that any attempt to design a universal remedy within the traditional way of justice would be a perfect dissonance. The intellectual thoughts on diverse perspectives and approaches, considering the dynamic needs of the society, made the emergence of Restorative Justice.

Earlier, the system included the victim and the offender. The perception was who is taking the responsibility, who is the offender, and who is the victim. This gave a sense of satisfaction about the justice being served or culprits being behind the bars, it also saved the victim from any social harassment (S.M Mousavi, 2015). For a fact, in India, the rape cases are not even registered or when the cases were taken up to the families apply “Marry your rapist” concept to avoid “shame” being a rape victim brings on the family.

Nowadays for a victim, the mere satisfaction of the offender behind the bars does not mean that he has achieved the so-called justice. The Public Interest Litigation in the case of Laxmi v. Union of India[1] had the same idea that mere conviction does not mean that victims’ interest is completely protected.

 

Restorative Justice & Victim Stigmatization

 

The concept of ‘Restorative Justice’ provides a harmonizing approach by ensuring the participation of all stakeholders in criminal justice administration. The chief purpose of restorative justice is to restore peace and harmonious co-existence of contradictory interests in the society. Restorative justice thus focuses on reintegration in the society of both victim and offender. Reintegration is needed because of the exclusion of criminalization from normal society.

The term “victim” finds definition in United Nations General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power as:

“Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that violate criminal laws operative within the Member States, including those laws proscribing criminal abuse of power.

Stigmatization is a kind of shaming that creates outcasts, it is disrespectful and humiliating. Victim stigmatization will mean treating victims as evil people who have done evil acts. Victims often feel stigmatized by family, friends, and the community. Many crimes also cause significant financial loss to the victims. The impact of crime on the victims and their families ranges from serious physical and psychological injuries to mild disturbances. This works to separate the victim from loved ones and community members and leads to stigmatization.

The fabric of victimology is woven around the rehabilitation and reintegration of the victim into mainstream society. This concept gets defeated if the victim or those affected by the offence are not socially and economically fitted back into the society due to Victim stigmatization.

 

International Perception and Law

 

The aim for any Restorative justice is to remove the stigma and allow victim to fit back in society. The concept of Restorative Justice is becoming a global phenomenon in the criminal justice system. The “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” by the UN General Assembly has played an important role in this change. 

The United Nations General Economic and Social Council (UN ECOSOC) endorsed a Declaration of Basic Principle on the Use of Restorative Justice Programmes in Criminal Matters in 2002. It includes principles for guidance and for the incorporation of restorative justice.

The United Nations General Assembly in 2005 adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. This Declaration was considered to be a major step towards Restorative Justice which constitutes Basic Principles and Guidelines. The states need to provide the victims of gross violations of humanitarian law with remedies and reparations.

In Europe, Restorative Justice is characterized by an experimental form of justice. In 2019, the bill for implementation of the restorative justice procedure in the formal justice system in Jamaica was presented.

Canada and Italy also introduced a resolution proposing the development of basic principles on the use of restorative justice. The outcomes of peacemaking meetings are restorative: apologies, restitution, and compensation. Sentencing circles are also conducted in many aboriginal communities in Canada.

In many African countries, customary laws may provide a basis for rebuilding the capacity of the justice system, where restoration of the victim is social responsibility, reconciliation between the offender and the victim and a sense of justice are the primary aims. They are described as the ‘Truth and Reconciliation Commission’. Victim-offender encounters in prison are taking place in the US, Canada, England, Belgium, and the Netherlands. (Lipika, 2017).

Community group and family group model in its modern form was also adopted into national legislation and applied to the youth justice process in New Zealand in 1989. This was one of the most systemically institutionalized restorative justice approaches.

The Uruguayan Parliament enacted a new criminal procedure system which came into force in 2017. It provides for the diversion of the case into a mediation process that facilitates an encounter between the victim and the offender, aimed at reaching some agreement on reparatory measures. Through this reparatory agreement, restorative justice acquired a formal status in Uruguay.

Well over 80 countries use some form of restorative practice in addressing crime. While in many of these countries, restorative programmes are experimental and localized, it still plays a significant part in the national response to crime through restorative justice.

 

Indian Laws and Judicial Pronouncements

 

Restorative justice takes into account the material, financial, emotional, and social needs of the victims including those personally close to the victim who may be similarly affected. It helps in removing the stigma and allows Victim to live with all dignity.

Despite the absence of any special legislation to render justice to victims in India, the Supreme Court has taken a proactive role in taking the affirmative action to protect the rights of victims of crime and abuse of power. The court has adopted the concept of restorative justice and awarded compensation or restitution or enhanced the amount of compensation to victims, beginning from the 1980s as seen in the cases of Sukhdev Singh v. State of Punjab[2], Balraj v. State of Uttar Pradesh[3], Giani Ram vs. State of Haryana.[4] 

Originally, the concept of the right to compensation was not listed directly in India’s Constitution. However, it has been recognized as an unnumbered constitutional right following interpretation in various pronouncements mainly in Rudul Shah v. The State of Bihar[5]. The Supreme Court and the High Courts have adopted the restorative approach while protecting the infringement of the fundamental rights of the Constitution under Constitutional remedies, Article 32 and 226 respectively.

The Supreme Court in Bandhua Mukti Morcha v. Union of India[6], observed that it is the fundamental right of everyone in this country to live with human dignity enshrined in Article 21, free from exploitation. Further, the Supreme Court has observed that the court envisages not only legal justice but socio-economic justice as well. The Supreme Court also observed that “The Constitution commands justice, liberty, equality, and fraternity as supreme value to usher in the egalitarian social, economic and political democracy. Social justice, equality, and dignity of the person are the cornerstone of social democracy.”Thus social justice is an integral part of justice in the generic sense. Justice is the genus of which social justice is one of its species.

In the case of Delhi Domestic Working Women’s Forum v. Union of India[7], The Supreme Court directed the establishment of a Criminal Injuries Compensation Board, to quantify with the most precision, the substantial financial loss and loss of employment due to the offence. This case proved to be a major turning point for the practice of awarding victim compensation and social rehabilitation for victims of rape and sexual assaul.

In Landmark judgment in Bodhisattwa Gautam vs. Subhra Chakraborty[8], the Supreme Court issued a set of guidelines to help indigenous rape victims who cannot afford legal, medical and psychological services, in accordance with the Principles of UN Declaration of Justice for Victims of Crime and Abuse of Power.

Recommendations by several Commissions:

The Law Commission of India in its 154th Report made a detailed analysis of the need to incorporate restorative justice in the criminal procedure in India. The Law Commission of India which examined acid attack cases again underlines the urgent need for a scheme of compensation for the victims. Because in such cases the victims need to undergo multiple surgeries costing lakhs of rupees and also in urgent need of rehabilitation as they often need financial help to exist as may not be able to seek employment.

The Law Commission in its 226th Report proposes that: “Criminal Injuries Compensation Act” be enacted as a separate law by the Government. This law should provide both interim and final monetary compensation to victims of certain acts of violence like rape, sexual assault, acid attacks, etc. This law should also provide for their medical and other expenses relating to rehabilitation, loss of earnings, etc. Any compensation already received by the victim can be taken into account while computing compensation under this Act.

The Justice Malimath Committee on Reforms of Criminal Justice System (Government of India, 2003) has made many recommendations of far-reaching significance to improve the position of victims of crime in the Criminal Justice System, including the victim’s right to participate in cases, to provide adequate compensation, legal services and medical services.

The National Commission to Review the Working of the Constitution, 2002 has recommended a victim-oriented Criminal Justice Administration, with greater respect and consideration towards victims and their rights. The committee also suggested a scheme of reparation or compensation particularly for victims of violent crimes.(Kumaravelu Chockalingam, 2010)

Recent Developments in Indian Laws

1. Criminal Procedure Code, 1973

The legislature with intent to provide various kinds of immediate reliefs inserted Sections 357-A, 357-B, and 357-C into the Criminal Procedure Code via Amendment in 2008. Under this provision the State and Central government should prepare a scheme for compensation. Also directs District and State legal authority to provide legal aid and immediate first aid and medical benefits.

2. The Protection of Women from Domestic Violence Act, 2005

The unique feature of the Act of 2005 is that it prohibits denying the victim “continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship, including access to the shared household”.

3. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

The Act was implemented aiming to protect elders and prevent elder abuse and victimization. In the case of Senior Citizen Welfare Organization & another v. State of Uttarakhand & Anr[9], the court held that every senior citizen has fundamental right to live with dignity. The court said according to the language of Section 19, the State Government is required to establish old age homes in each district and also to prepare a Scheme as per Section 19(2) of the Act, 2007.

 4. Prevention of Child Abuse and Victim Protection

Empowering the child is the road to prevention from abuse and victimization. To empower the child, education is the tool. The National Commission for Protection of Child Rights (NCPCR) is established under this Act. It ensures that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India.

5. Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

This is an act to prevent atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act, compensation to victims is mandatory, besides several other reliefs depending on the type of atrocity. The victims are entitled to receive monetary compensation ranging from Rs. 25,000 to 200,000 depending on the gravity of the offence.

 

Suggestions and Conclusions

 

Restorative justice aims to restore social support. Victims of crime need support from their loved ones during the process of requesting restoration. They sometimes need encouragement and support to engage with deliberation toward restoring harmony. Friends sometimes do blame the victim, or more commonly are frightened by a victim going through emotional trauma. Restorative justice aims to institutionalize the gathering around friends during a time of crisis.

Restorative Justice is a young movement. The acceptance of such programs and practices across the border are likely to remain a part of international criminal justice for decades. In some instances programmes are truly “new” and in others, they are creative adaptations of something that existed before in a different form or context, and in few, they are collaborative mediation of state, community, victim, and offender.

The Indian Judiciary has devised new remedies which unfortunately are not explicitly enumerated in any substantive law in India. Granting compensation to the victims is a revolutionary step and an effective remedy to a victim. It is high time that the spirit of restitutive justice is to be carried further. The development of a parallel and effective remedy by separate legislation under which the victim should be able to seek compensation, irrespective of whether the accused is convicted or not.

The law must also provide for the resources to meet the needs of the victim. The possibility of an Insurance Scheme in line with the Public Liability Insurance can also be explored, as it is the bounden duty of the State to protect the life and liberty of every individual.

This type of change in law may advance the cause of the victim’s long way forward. The new amendment to the Criminal Procedure Code is highly unsatisfactory and needs to be revised in accordance to the new outlook in the Criminal Justice System and the new set of international norms.

As it was said, any crime has roots in injuries; it becomes clear that injuries are permanent for the victim and the Restorative Justice in an innovative manner should be followed by providing the warmth we as a society can give by debunking all the stigmas. These R’s are all we need to provide a better safe place through restorative justice: respect, repair, responsibility, reintegration, relationship, restoration.

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[1] (2014) 4 SCC 427

[2] 1982 SCC 467

[3] 1994 SCC 823

[4] AIR 1995 SC 2452

[5] (1983) 4 SCC 141

[6] (1984) 3 SCC 161

[7] (1995) 1 SCC 14

[8] AIR 1996 SC 922

[9] 2019 SCC OnLine Utt 974

 

Pakhi Jain


Author
Pakhi Jain, Himachal Pradesh National Law University, Shimla 

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