Restitution and restorative justice

1. Meaning of restitution

Restitution is the restoration of the victim, so far as possible, to the position before the crime, by or on behalf of the offender. It may take the form of:

• return of property taken by the offence;
• payment for loss, damage, injury, medical expenses and lost earnings;
• service to the victim, or, in a wider sense, to the community (community service is sometimes called symbolic restitution).

Stephen Schafer (Restitution to Victims of Crime, 1960, and The Victim and His Criminal, 1968) argued that restitution should be part of the criminal sentence itself, not a civil matter left to the victim, because it serves both the victim and the reform of the offender, who must face the harm he caused.

2. Restitution, compensation and damages

• Restitution: by the offender, ordered in the criminal process.
• State compensation: by the State, from public funds, usually under a scheme, whether or not the offender is identified.
• Civil damages: by the wrongdoer, in a separate civil suit, at the victim's cost and risk.

Restitution avoids the delay and cost of a civil suit and links the remedy to the wrong. Its limit is the offender's means: most offenders are poor, so restitution alone cannot meet victims' needs, which is why state compensation developed beside it.

3. History

Restitution is the oldest response to crime. Early law was largely a tariff of payments to the injured: the Code of Hammurabi, the Mosaic law, the Anglo-Saxon wer and bot, Islamic diya, and Kautilya's fines payable to the injured party. As the State took over criminal justice, fines went to the treasury and the victim was left to civil law. The victims' movement of the twentieth century revived restitution as part of sentencing: the US Victim and Witness Protection Act, 1982 and Mandatory Victims Restitution Act, 1996; compensation orders in England; and restitution orders in the Canadian Criminal Code.

4. Restitution in the UN Declaration, 1985

Paragraphs 8 to 11 of the Declaration of Basic Principles of Justice for Victims provide that:

• offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants, including return of property, payment for harm or loss, reimbursement of expenses, provision of services and restoration of rights;
• governments should review their practices so as to consider restitution as an available sentencing option in criminal cases, in addition to other sanctions;
• in cases of substantial harm to the environment, restitution should include restoration of the environment and reimbursement of the costs of relocation;
• where public officials acting in an official capacity violate national criminal laws, the victims should receive restitution from the State.

5. Restitution in Indian law

• Section 395 BNSS (old 357): when imposing a fine, the court may order it to be applied to compensate the victim for loss or injury; when no fine is imposed, it may order the accused to pay compensation. See the BNSS note on victim compensation.
• Return of property: sections 497 to 505 BNSS (Chapter XXXVI; old Chapter XXXIV CrPC) on the disposal of property, including restoration to the person entitled.
• The Probation of Offenders Act, 1958, section 5: a court releasing an offender under section 3 or 4 may order him to pay compensation and costs.
• BNS section 303(2) proviso: a first-time thief of property worth less than five thousand rupees who returns the property or its value is punished with community service, a statutory reward for restitution.
• The Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra, 2013 INSC 309, (2013) 6 SCC 770, held that a court must apply its mind to compensation under section 357 in every criminal case and give reasons if it does not award it.

6. Restorative justice

Restorative justice treats crime as harm to people and relationships, and asks: who has been harmed, what do they need, and who is obliged to repair it? Howard Zehr's Changing Lenses (1990) contrasted it with retributive justice, which asks: what law was broken, who did it, and what punishment does he deserve? The UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (ECOSOC resolution 2002/12) define a restorative process as one in which the victim, the offender and, where suitable, others affected participate together actively in resolving matters arising from the crime, generally with a facilitator, and require free and voluntary consent of both sides.

Its methods:

• Victim-offender mediation: a trained mediator brings the two together to talk about the offence and agree on reparation.
• Family group conferencing: developed in New Zealand for young offenders under the Children, Young Persons and Their Families Act, 1989, drawing on Maori practice.
• Sentencing circles: used in Canada with indigenous communities.
• Reparation and community service orders.

Indian law has several restorative mechanisms, though it does not use the label:

• Compounding under section 359 BNSS (old 320), where the victim can settle listed offences with the accused.
• Plea bargaining under Chapter XXIII BNSS (sections 289 to 300), which requires a mutually satisfactory disposition including compensation to the victim. See the BNSS note on compounding and plea bargaining.
• Lok Adalats for compoundable offences, and pre-litigation mediation in matrimonial disputes.
• The Juvenile Justice Act, 2015, which aims at rehabilitation and reintegration and allows community service and counselling orders.
• The traditional panchayat settlement of disputes, which shows both the promise and the danger: community pressure can force a weak victim, often a woman, into an unjust settlement.

How this is examined

“Explain the concept of restitution” (February 2025, 10 marks). Structure: the definition and forms (section 1), the distinction from compensation and damages (section 2), the history (section 3), the UN Declaration (section 4), Indian law (section 5) and close with restorative justice (section 6). The syllabus line is “Restitution”; restorative justice is the modern frame for it and earns credit in the conclusion.