Abstract
In its most idealized form, there are four active features of restorative justice, i.e., to repair, restore, reconcile, and reintegrate the offenders and victims to each other and to their shared communities. This chapter examines how and in what manner the Supreme Court and High Courts of India have responded to the emerging concept of restorative justice and analyzes the value of this response jurisprudentially in the administration of justice.
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Notes
- 1.
European Forum For Victim-offender, Leuven University Press, Victim-Offender Mediation In Europe: Making Restorative Justice Work, (2000), (Revised Edition), New York City: Cornell University Press, p. 44.
- 2.
The word ‘stakeholders’ comprises of victim, offender, family members of both victim and offender (including those who may be similarly affected), neighbors, and other important members of the society.
- 3.
Section 8 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
- 4.
Section 34 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
- 5.
Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
- 6.
Section 39 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
- 7.
The term “women” refers to sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation.
- 8.
Articles 14, 15, and 21 of the Constitution of India provides remedy under the civil law which is intended to protect the woman from being victims of domestic violence.
- 9.
The term “domestic violence” is defined under Section 3 of The Protection of Women from Domestic Violence Act, 2005, which includes actual abuse or threat. Actual abuse may be physical, sexual, verbal, emotional, or economic.
- 10.
Section 19 of The Protection of Women from Domestic Violence Act, 2005.
- 11.
Section 18 of The Protection of Women from Domestic Violence Act, 2005.
- 12.
Section 8 of The Protection of Women from Domestic Violence Act, 2005.
- 13.
Section 10 of The Protection of Women from Domestic Violence Act, 2005.
- 14.
Section 22 of The Protection of Women from Domestic Violence Act, 2005.
- 15.
There are various criminal ADR programmes that are running throughout the globe. Some of these are: Victim-Offender Mediation Programs (VOM); Community Dispute Resolution Programmes (CDRP); Victim-offender Panels (VOP); Victim Assistance Programs (VAP); Community Crime Prevention Programs (CCPP); Private Complaint Mediation Service (PCMS) and plea bargaining.
- 16.
Some criminal ADR programmes like Victim-Offender Mediation Programs have been successfully mediating to bring justice between crime victims and offenders for over 20 years. There are now over 300 such programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia, Eastern Europe, Australia, and New Zealand.
- 17.
In recent case of Vijay Moses Das Vs. CBI (Criminal Misc. Application 1037/2006), Uttrakhand High Court (Justice Praffula Pant) in March 2010 allowed the concept of plea bargaining, wherein accused was charged under Section 420, 468, and 471 of IPC. In the said case, Accused supplied inferior material to ONGC and that too at a wrong Port, which caused immense losses to ONGC, then investigation was done through CBI by lodging a criminal case against the accused. Notwithstanding the fact that ONGC (Victim) and CBI (Prosecution) had no objection to the Plea-bargaining Application, the trial court rejected the application on the ground that the Affidavit u/s (265-B) was not filed by the accused and also the compensation was not fixed. The Honourable High Court allowed the Misc. Application by directing the trial court to accept the plea-bargaining application.
- 18.
Sub-Section (2) of Section 327 specifically contemplates that “Notwithstanding anything contained in sub-sec. (1) the inquiry into and trial of rape u/s 376 of the Indian Penal Code shall be conducted in camera ….”
- 19.
Sub-Section (3) of Section 327 of the Cr.P.C., reads as follows: “Where any proceedings are held under sub-Section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the prior permission of the court.”
- 20.
Maneka Gandhi v. Union of India AIR 1981 SC 746.
- 21.
Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14.
- 22.
In Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988.
- 23.
World Health Organization (1999): Report of the Consultation on Child Abuse Prevention; Geneva, http://www.who.int/%20violence_injury_prevention/violence/neglect/en/.
- 24.
The ministry of Women and Child Development in India has conducted a “Study on Child Abuse: India 2007” avail able at http://wcd.nic.in/childabuse.pdf.
- 25.
State of Gujarat Vs. Raghavbhai Vashrambhai and Ors., (2003) 1 GLR 205.
- 26.
Bhagwan Kaur Vs. State of Punjab and another., RSA, 2701–2001, [2006] RD-P&H 723.
- 27.
Anupam Sharma Vs. NCT of Delhi and Anr., 146 (2008) DLT 497.
- 28.
Rattan Singh v. State of Punjab (1979) 4 SCC 719.
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Raina, S.C., Handa, R.K. (2017). A Justice that Heals: Restorative Justice from an Indian Perspective. In: Thilagaraj, R., Liu, J. (eds) Restorative Justice in India. Springer Series on Asian Criminology and Criminal Justice Research. Springer, Cham. https://doi.org/10.1007/978-3-319-47659-9_6
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