This section provides information on Restorative Justice.
Children who break the law do not do so of their own free will, but rather as a result of restricted opportunities available for their development. Such opportunities become even more restricted once they enter the criminal justice system. Children from risk groups that could get in conflict with the law are often victims of abuse and neglect, negligent and poor parenting and economic difficulties. Juvenile delinquency is not a success story, but evidence of the society failing to ensure protective environment for its children. Labelling such children results in exclusion from society rather than assistance in their rehabilitation. If child offenders continue being criminalized while at the same time being denied a 'second chance‘ that they deserve, their 'chances‘ will lead to nothing but their reoffending when they grow up.
These children need support while they are still children. The efforts of the communities/societies to rehabilitate such children are insufficient for their developmental needs. There is need for capacity building of communities to increase their understanding of such issues and also to deal with children.
The child‘s personality is developed throughout his or her development and depends on the stage of development: the child becomes capable of taking responsibility for its needs, acts, health and safety. Therefore, the society has the duty to ensure and provide special protection to children.
Need for Restorative Justice as a tool for Rehabilitation of Children in Conflict with Law
Unlike retributive justice where the focus is on the crime and violation of law, restorative justice aims at resolving the problem through reconciliation and improvement of the newly created situation. The victim‘s needs are respected and the offender takes responsibility, which shows he understands the consequences of his crime. Restorative justice is a new view of the criminal legal system which focuses more on the restoration of the damage that the crime has done to people and their mutual relations rather than the punishment of the offender. Restorative justice is a process that involves all who are directly or indirectly affected by the crime in an attempt to decide how best to restore the damage. There are three categories of those directly affected by the crime, namely victims, offenders and their immediate community, whose needs are to receive restitution for material and non-material damage, take responsibility and restore good relations in the community respectively. Therefore, the emphasis is on the needs of people, individuals, respect for their human values and their personalities, and not just the punishment of the offender.
Restorative justice is based on the following four basic principles:
- establish balance disrupted by a crime or conflict in the community and society and restoring the damage made;
- make restitution to the victim;
- create conditions for the offender to understand and take responsibility for his acts;
- assist in changing and promoting future behaviour of the offender.
Restorative justice practices differ from criminal justice practices. The following table brings out the difference between criminal justice and restorative justice.
Reflection of Restorative Justice in the JJ Act, 2015
Juvenile Justice made a departure from the criminal justice model of punishment recognizing the negative influence of association with adult offenders and the higher possibility of reformation of children being in the growing age where their capacities are still being built and developed. While children are protected from the baneful effects of prisons, the victims of their offences have found no solace from juvenile justice system. The victims feel that children are let off easily even when they commit a serious offence or repeat offences.
Juvenile Justice adopted the path of reformation of children found to have committed an offence through various community based reformative and rehabilitative measures and using institutionalization as a measure of last resort and for the minimum period till suitable community based alternatives are found for them. For example, as per section 18 of JJ Act, 2015, the JJB can pass orders for CCL such as:
- direct the child to participate in group counselling and similar activities;
- order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board.
In designing a community service programme for children above the age of 14 years, such as maintaining a park, serving the elderly, helping at a local hospital or nursing home, serving disabled children, serving as traffic volunteers. The JJB may combine the restorative justice approach by keeping in mind:
- the nature of offence committed by the CCL
- the circumstances of its commission
- the impact on the victim
- lessons that should be taught to the CCL
- how the programme will help correcting the harm to the victim
Any offence is fit for restorative justice if it is applied appropriately. Many countries in the world are using restorative justice to rehabilitate children who have committed crimes. The preconditions for adopting restorative practice in a given case are:
- The CCL must accept commission of offence.
- The CCL (and not their parents) must be ready to accept responsibility for correcting the wrong.
- The CCL must be ready to apologies to the victim.
- The victim will have a say in deciding what he/she want the CCL to do to make amends.
- It cannot be demeaning the offender but must be focused on making good the harm caused.
- The victim should be assisted in not demanding something which is beyond the means of the CCL to fulfill.
Restorative justice practices can also be used as a very effective positive disciplining tool amongst the children in CCIs as well. It is useful for conflict resolution amongst children and also when there is some peer harm involved. While this requires some training of the staff, it is not a complex process. It involves getting both parties (that have caused harm and that have been harmed) to agree to a conference where the victim can speak about the impact and the accused is also given a chance to explain his/her behaviour. It is a forum where people deal with wrongdoing and conflict. The facilitator creates a safe space for everyone to participate. The facilitator does not influence the decisions taken by the participants but allows them all to speak and find their own solutions.