ABSTRACT:
Due to rising recidivism, restorative justice acts as an efficient method to deal with the situation. This research endeavours to provide a comprehensive understanding of recidivism and restorative justice, exploring the fundamental concepts, theories, and principles that underpin these phenomena. Specifically, this study delves into the sociological concept of recidivism, examining its global implications with a particular focus on the Indian context. The primary objective of this research is to assess the efficacy and efficiency of restorative justice in India, with a view to reducing repeated criminal behaviour among offenders. The findings of this study suggest that restorative justice holds considerable promise in mitigating recidivism, fostering stronger community ties, and promoting healing. The findings suggest that restorative justice holds significant promise in reducing recidivism and strengthening community ties and how it is hindered by limited awareness. The research concludes with recommendations to integrate restorative justice into India’s legal system.
KEY WORDS:
Restorative Justice, Recidivism, Criminal Justice Reform, Victim-Offender Mediation
INTRODUCTION:
Howard Zehr, in his book ‘Little Book of Restorative Justice’, discussed about Restorative Justice. According to him, “Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.” Restorative Justice deals with restoring the harm rather than a punishment. It involves the “stakeholders and identification of how much harms is caused to the victim, what are the needs of the victim and what should be the obligation of the offender.” However, It differs from Retributive justice in traditional legal systems. Retributive justice focuses on punishment rather than restoration. “retributive justice, response to criminal behaviour that focuses on the punishment of lawbreakers and the compensation of victims.” In India, the principles of restorative justice are not mentioned in the criminal justice system. There are some provisions which follows the restorative justice model. However, it is very crucial to examine the restorative justice in Indian context because it has various positive aspects in India’s criminal justice system as well as the society like it allows active participation of victims in the resolution process, community and society can actively support both offenders and victims in the process and most importantly it reduces Recidivism, “which refers to person who indulge in the same criminal behaviour even after the sanctions applied.” This research aims to assess the effectiveness of Restorative justice in reducing recidivism. The research will provide how concept of restorative justice helps in reducing recidivism with a global perspective, then delving into its impact in the context of India as well as its impact on the society.
RESEARCH METHODOLOGY:
This research adopts a qualitative research design, focusing on descriptive and analytical methods to explore: the principles and practices of restorative justice, analyzing case studies and recidivism data in India, and conducting a comparative analysis with international practices. The research relies on a combination of primary and secondary sources. Primary sources include legal texts, academic journals, and reports from organizations. Secondary sources comprise commentaries on Indian law, articles, and books. By synthesizing findings from these sources, this research aims to provide a holistic understanding of the effectiveness of restorative justice in reducing recidivism in India. The qualitative approach enables an in-depth examination of restorative justice principles, practices, and outcomes. By integrating theoretical insights, empirical data, and comparative analysis, this research contributes to the ongoing discourse on restorative justice and its potential to promote safer communities.
REVIEW OF LITERATURE:
RECIDIVISM:
According to Merriam-Webster defines recidivism as –“a tendency to relapse into a previous condition or mode of behaviour especially relapse into criminal behaviour”. “Recidivism refers to the likelihood of someone to repeat a criminal act that he or she had previously been sanctioned by the criminal justice system.” There are several theories which discuss about why recidivism occurs. One of them is Differential Association Theory, which is proposed by Sutherland in 1939. According to this theory, “the criminal behaviour is learned, it develop due to social interaction. This is known as differential association, where the a person learns or acquire values, attitudes, methods, motive for a criminal behaviour. Differential association can vary in frequency, duration, priority, and intensity.” This theory states that people acquire the deviant behaviour and through social interaction, which leads to deviance towards social norms, morals and values. Deviance also plays a role in recidivism, people often commit crime repeatedly, because they start to not conform to the norms of the society, which lead to person becoming deviant. “Deviance means that people does not conform to the norms and values set by the society. Many sociologist gave definitions of deviance such as according to Horton and Hunt, the term deviation is given to any failure to conform to customary norms.” Some people show deviant behaviour, which can be positive or negative. Thus, it can also lead to recidivism, which is not good for the whole society. There are other various factors why recidivism occurs that are: prison conditions – “harsh conditions like ill-treatment and even solitary confinement, lack of employment – difficulty in finding jobs which lead a person to choose an alternative way to earn like robbing, mental health, substance abuse – such as indulging in drugs, social interaction, lack of integration, socio-economic conditions, peer pressure, perception of society and etc.”
RESTORATIVE JUSTICE
Restorative justice can be efficient to tackle recidivism. There are different theories which discuss why restorative justice is better than retributive justice. Firstly, Reintegrative Shaming theory proposed by John Braithwaite in his book ‘Crime, Shame and Reintegration (Braithwaite, 1989)’. According to this theory, “Reintegrative shaming theory is contrary to stigmatization. Stigmatization is treating an offender as a bad person, which leads to unforgiving the offender. According to this theory, stigmatisation increases crimes. However, Reintegrative shaming theory is forgiving the offender and acknowledging the rehabilitation in the society. South African societies use this method of reintegrative shaming theory. In the case of S v. Saayman 2008 (1) SACR 393 (E) restorative justice came in for some careful examination regarding the concepts of “shaming” and the constitutional right to dignity. This theory discuss why stigmatisation makes things worse than shaming, offenders indulge into criminal subcultures which provide a solution for status problem, and to reclaim self-respect. However, when intimate relationships do shame they do it respectfully because of the love and respect. Reintegrative shaming theory’s most important implication is restorative justice is more effective than retributive justice. This theory states that restorative justice is more efficient in reducing crime because it puts the problem in front and not the person.”
Second, Procedural Justice theory, “which states that there are other ways to regulate the society and not only through the punitive punishments. This theory explains that when there is fair procedure and there is justice in treating people. When people experience this type of justice, they are tend to conform the social norms and engage in self-regulatory behaviour by their own. This theory explains that people follow the authorities when they act through fair procedures. Legitimacy shapes the people’s behaviour and value. This ensures that the legal system is based on voluntary cooperation of people and they feel obligated to obey the laws. Morality also play an important role. If something is illegal, it does not always means that it is morally wrong according to people. For example, Driving car without licence is illegal, but it differs person to person for some people it can be morally right and for some it can be morally wrong. Morality is intrinsic and shapes people’s action rather than just focusing on punishment for the wrongdoing. Thus, Procedural justice seeks to activate morality through fair exercise by the legitimate authority. Procedural justice aligns with restorative justice, both aims to deal with people to be a better member of the society.”
Third, Defiance theory proposed by Lawrence W. Sherman. “According to this theory, punishment leads to increasing deviant behaviour. This theory states that punishment can deter or reinforce the criminal behaviour. According to Sherman, defiance to punishment can cause more severe commitment of deviant acts. Sherman was also an advocate of restorative justice, his defiance theory provides that there are alternative methods to deal with the crime rather than just punishing the offender.”
These theories provide how restorative justice is more favourable than retributive justice. This theory clarifies that instead of following the traditional criminal justice system, it should follow different approaches to deal with the crime and the offenders. These theory focuses on the rehabilitation of offenders in the society and not just punishing them, also with an aim to look at the needs of the victims and the society.
GLOBAL ASPECT OF RECIDIVISM AND RESTORATIVE JUSTICE
Recidivism rate varies from country to country, state to state and also differ in definitions, legal system and data collection methods. “A research conducted by researchers Seena Fazel and Achim Wolf to determine the recidivism rate ranging between different follow-up years. Among them, Australia had 53% recidivism rate in 2014-15 for reconviction. Canada had 43% in 2007-08 for reimprisonment. New Zealand had 61% in 2015-16 for reconviction. Denmark had 63%, the highest recidivism rate according to 2-year follow-up. This data is not accurate, because different countries have different meanings for recidivism, counting can differ, choosing follow-up years can differ, some countries consider reimprisonment data only, and so on. Thus, it is not possible to acquire specific data related to the recidivism rate. These statistics provide a general overview of recidivism in different countries.” This shows how recidivism is a major issue that needs to be dealt with carefully, and there should be some steps to slow down the recidivism rate, which requires considerate efforts by coming up with schemes and methods to tackle the problem.
There are many countries that adopted the principle of restorative justice in their legal systems like UK, Norway, South Africa, and etc. “Norway integrated principles of restorative justice in their criminal justice system, where it focuses on restoring or repairing the harm rather than a punitive punishment. This lead to Norway having a notably low recidivism rate. Norway has around 20% recidivism rate which is significantly low, whereas if compared to US, the recidivism rate reached around 76%.” This is due to Norway focus on rehabilitation and reintegrating inmates in society. “In Canada, restorative justice has been implemented and integrated in the criminal justice system for over 40 years, which focuses on rehabilitation, victim-offender dialogues, healing and accountability.” Moreover, “Finland has a well-established framework for restorative justice.” However, It is not like no country follows the restorative justice method, it is used in different forms. Different areas of the legal system might use restorative justice. “For example, India, Russia, Denmark, etc. These countries do not have a well-established framework, some of them aim to integrate restorative justice into their legal system. However, these countries do use restorative justice in different forms in “Denmark, restorative justice manifests through victim-offender mediation. In India, restorative justice is manifesting as an important alternative to traditional punitive punishment.”
RECIDIVISM AND RESTORATIVE JUSTICE IN INDIA
According to statistics of the year 2022, India had around 32% recidivism rate. This might seem comparably low from other countries.” “This does not mean that India has an efficient legal system. In 2015, the recidivism rate was 8.1% which reduced to 6.4% in 2026. This does not show the efficiency of the legal system, this happened because of a decrease in conviction rate and an increase in pendency rate in 2016.” Recidivism is a social and legal issue in India, however, several provisions in the Indian criminal justice system deal with recidivism. “Section 75 of Indian Penal Code, deals with enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction.— Whoever, having been convicted,— by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with life imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.” As per new Indian Criminal law, Section 75 has been replaced by Section 13 of Bharatiya Nyaya Sanhita, 2023. “Section 310 deals with Thug.— Whoever, at any time after the passing of this Act, shall have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder, is a thug.” “Section 311 states Whoever is a thug, shall be punished with imprisonment for life, and shall also be liable to fine.” Thug and its related punishment has been deleted from the Bharatiya Sakya Adhinayam, 2023. These were some of the provisions which dealt with recidivism. However, there is a need to properly address the issue of recidivism, there are some ways that recidivism can be addressed through public awareness, Invigilation by government agencies and the implementation of restorative justice.
In India, as the “criminal justice system is not victim-centred, restorative justice is not necessarily required or wanted. Restorative justice is not a sole remedy, however, it is necessary to address the issue persistent in the society. Creating a balance between the traditional approach and restorative justice, can lead to efficiency in the legal system. Victim-offender mediation is an example of restorative justice method, where parties come together to collaboratively agree to deal with the offence’s result. This method can be applied so that the victim can repair the harm caused to him according to his way. It does not necessarily exclude traditional practices, it can act as a pre-process – which means that parties can try to sort out things between them, and later they can approach the court. The traditional legal system will ensure that there is no dominance of one party to another and restorative justice will ensure addressing harm and repairing.”
SUGGESTIONS:
Based on the findings and analysis of restorative justice in reducing recidivism in India, following are suggestions:
- Incorporating Restorative Justice Methods
The Indian government should consider incorporating restorative justice methods into the existing criminal justice system. This can be achieved by amending relevant laws and policies to accommodate restorative justice principles. Additionally, providing training and capacity-building programs for judges, prosecutors, police officers, and other stakeholders is crucial. Establishing restorative justice courts or tribunals to handle cases that are amenable to restorative justice can also help to promote this approach.
- Balancing Traditional Practices and Restorative Justice
India’s rich cultural heritage and traditional practices can be leveraged to promote restorative justice. It is essential to strike a balance between traditional practices and restorative justice methods. This can be achieved by incorporating traditional dispute resolution mechanisms, such as mediation and arbitration, into restorative justice processes. Encouraging community involvement and participation in restorative justice initiatives can also help to foster a sense of ownership and responsibility.
- Public Awareness and Public Engagement
Raising public awareness and engagement is crucial for the successful implementation of restorative justice in India. This can be achieved by launching public awareness campaigns to educate citizens about the benefits and principles of restorative justice. Organizing community outreach programs and workshops to promote restorative justice can also help to build momentum. Encouraging media coverage and reporting on restorative justice initiatives can help to amplify the message.
- Ensuring a Victim-Centric Approach
A victim-centric approach is essential for restorative justice to be effective. This can be achieved by ensuring that the harm caused to the victim is acknowledged and addressed. Providing victims with a platform to express their needs and concerns can also help to promote healing. Fostering a collaborative approach between victims, offenders, and community members can help to promote reparation and reintegration.
CONCLUSION:
Assessing the effectiveness of restorative justice in reducing recidivism is a critical endeavor, as it enables us to comprehend and address this complex issue. Although India’s framework for restorative justice is still in its nascent stages, incorporating this element into the country’s criminal justice system is essential. By doing so, the system can become more victim-centric, prioritizing the needs and concerns of victims while also focusing on the rehabilitation of offenders within society. This research undertook an in-depth examination of recidivism, exploring the factors that contribute to individuals becoming recidivists. Furthermore, it delved into the principles and theories underlying restorative justice, including Reintegrated Shaming Theory, Procedural Justice Theory, and Defiance Theory. A comparative analysis of recidivism rates and the adoption of restorative justice practices in various countries was also conducted.
The paper focused on the critical issue of recidivism in India, highlighting the potential of restorative justice to mitigate this problem. The implementation and integration of restorative justice practices in India were explored, with an emphasis on their potential to reduce recidivism rates. While acknowledging the limitations of restorative justice, this research emphasized that a combination of traditional practices and restorative justice approaches can provide a more effective solution to reducing recidivism. Moreover, the study recognized that recidivism is perceived differently across various countries and even within different states in India. This variation in perception and approach opens up avenues for future research on the adaptation and implementation of restorative justice practices in diverse contexts.
Conclusively, restorative justice offers a transformative approach to the criminal justice system in India. By prioritizing victim needs, acknowledging harm, and focusing on healing and rehabilitation, restorative justice has the potential to revolutionize the way we address crime and justice. As India continues to grapple with the complex issue of recidivism, the integration of restorative justice practices into the country’s criminal justice system is a crucial step towards creating a more just and equitable society.