By — Srisoniya Subramoniam

Abstract

The criminal justice system often lacks the humanity that is required of it. In the Indian context, wherein criminal prosecutions have in rem proceedings, the victim often is put at a secondary position, with the State becoming the Primary Prosecuting Party. This disregard for the victim during the trial is inconsistent with the ideals of justice and fairness. The criminal justice system is retributive, but to humanise it we must explore mechanisms that address victims’ needs and ease their concerns. The restorative model of justice plays a crucial role in this regard, with the introduction of victim-offender mediations. Such a mediation empowers a victim and offender to break away from the cycle of oppression, thereby allowing the victims to move on and the offenders to be rehabilitated once their sentence term comes to an end. This article explores whether such mediations are beneficial for victims as opposed to the adversarial system. It further delves into the Canadian and American jurisprudence for developing such systems to increase victim satisfaction during criminal proceedings. 

Introduction

The Mediation and Conciliation Act does not allow for mediation to be employed in criminal cases, and solely restricts it to civil matters. But such a distinction is to the detriment of the victims of criminal offences as opposed to civil matters. Mediations bring out diverse perspectives on certain criminal offences. Victim-offender mediation lets victims and offenders meet directly to discuss the crime’s impact and plan how to repair the harm after the trial has concluded.  It allows the victims to be directly involved with the criminal proceedings rather than just being confined to the shadows. A criminal trial may often become seriously hostile, especially when the prosecutors do not treat the victims with dignity and respect. The rights of the victims are neglected in the current criminal system, therefore rendering them devoid of any voice in the entire process. The introduction of victim-offender mediations would mitigate such a disruptive structure. By employing a restorative model, the offenders are forced to take accountability and compensate for the emotional and material losses caused by them. It enforces a structure of principles, guidelines and empathy which is lacking within the criminal justice system at present. 

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.” The judicial system, though determined to provide justice to the victims, has largely overlooked measures aimed at emotional support and psychological well-being to the state prior to the occurrence of the crime. Victim-offender mediation process, therefore, is based on such ideologies as the ‘Creative Restitution’ which embodies values like ‘humanity’ and ‘accountability’ as developed by Dr. Albert Eglash. Victim-offender mediation meets victims’ needs while making the justice system more inclusive and humane.  Studies conducted on the impact of such mediation programs through an evaluation of reports across the jurisdictions of Canada, Columbia, England, Scotland and New Zealand, allow us to establish seven major benefits which are not guaranteed under the current retributive criminal process – 1) victim satisfaction 2) victim perception of satisfaction 3) restitution 4) diversion 5) recidivism 6) costs, and 7) crimes of violence.

Locating Victim-Offender Mediation within the Indian Criminal Structure

The 2003 Malimath Committee Report had emphasised the importance of addressing victims’ rights and demanded the need to involve victims in all trial stages. Although demand for victim-offender mediation is rising, it will be effective only with clear legislation or legal amendments. Given that victims serve as primary witnesses in criminal trials and can engage an advocate under S. 301 CrPC/ S. 338 BNSS only with the court’s discretion, they might feel alienated from their own experience. The case of Abhishek & Others v State NCT of Delhi (2023) dives deeper into the mechanism of such incorporation and has provided guidelines on the same, especially amounting to the roles of the mediator in ensuring fairness and safety of, and providing direction to the mediation process. This case also underscores the growing significance and dependence on mediation processes in effectively resolving criminal matters.

In the case of Ashok Sadarangani v Union of India, the Supreme Court has considered mediation to be a plausible avenue for less serious and compoundable offences, and in rare circumstances, non-compoundable offences as well. Even though such a consensus was achieved through a case of 2013, the passing of 12 years has not changed much on this front. But it is also surprising to note that merely 3 years prior to this case, in Apex Infrastructure v Cherian Varkey Construction, the court had held that under the Indian criminal justice framework, there was no scope for reconciliation or forgiveness. This shows the growing need for mediation and the courts’ realisation that punishment alone does little for victims, making alternative remedies essential. 

Other Jurisdictions, Shared Lessons

A comparative study of norms and practices of victim-offender mediations of other jurisdictions plays a crucial role in effectively addressing victims’ rights and incorporating suitable practices into the Indian context. 

Canada

Victim-offender mediation has been one of the most widely employed models in Canada, which brings the victim and offender together in the presence of a trained mediator to discuss the incident. It is deemed important to ensure that the environment is safe and structured for the victim so that it is easy for them to articulate how the offender’s actions affected them; on the other hand, the offender is given the opportunity to apologise and make reparations. Even though most of such initiatives are for young offenders, local communities in Canada have transformed this model to suit young and adults alike – community justice conferencing, wherein it is not only the victim, offender and the mediator who are present, but an entire community joins the conversation to address the issues effectively and in line with the community values. At the grassroots in India, this model could enable open community dialogue, loosely guided by law, where victims can accept and forgive at their own pace. 

United States of America

In the US, victim-offender mediation often acts as a diversion of young offenders with little or no prior court involvement from formal processing in the juvenile courts. This allows them to repent for their mistakes and rehabilitate comparatively easily. Such mediation processes are also increasingly pursued for small and petty offences. A similar system can be adopted in India for the reformation of the juvenile justice system which would provide juveniles a systematic and supportive structure separate from other offenders to repent and rehabilitate effectively without affecting their future. There is a hesitancy in employing such mediations for serious offences such as rape owing to the sensitivity surrounding the matter, but with time, it needs to be extended to such matters as well, with safeguards provided to the victim to ensure their well-being.

Conclusion

Victim-offender mediations, though they introduce restorative justice ideals within the existing retributive justice model in India, need to be employed carefully and after assessing the circumstances of each case. Mediation, being a completely voluntary process, will only emerge successful if both parties are truly willing to discuss issues, accept faults, and explore modes of reparations. A simple way forward is to educate and raise awareness among lawyers and prosecutors about the effectiveness of such mediations, so they can encourage their clients to consider it as a viable option. But most importantly, any change is only possible if there is a concrete legislative amendment incorporating such victim-offender mediations within the criminal justice system, thereby allowing for a clear method of victim satisfaction and true justice, which is not masked by mere punitive measures in the name of justice and fairness.

About the Author

Srisoniya Subramoniam is a third-year B.A. L.L.B. (Hons.) student at Jindal Global Law School (JGLS). She has a penchant for dancing, painting, and writing poems in addition to a keen academic interest in legal scholarship, especially Intellectual Property Rights, Artificial Intelligence, International Law, and Criminal Litigation. She also believes that law, when used as a tool, can be instrumental in advancing human rights activism, and she aspires to pursue her skills in a way that meaningfully contributes to society.

Image Source: https://share.google/images/KjA642sCtu0tGrrJ2