Administration of

justice
Module III

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 Meaning

Necessity

History

Advantages and
disadvantages

Classification

Topics of discussion
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 Meaning of justice

Justice is a concept of moral

rightness based on ethics,
rationality, law, natural law,
religion, fairness, or equity, along
with the punishment of the
breach of said ethics
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 Administration of Justice means justice according to law.

According to Salmond, it means maintenance of rights within a

political community by means of the physical force of the state.

Physical force of the state is the sole or exclusive factor for a

sound administration which also help obedience to law.

These factors are social sanctions, habits, convenience etc

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 Sound administration of justice is a
need of humanity since the inception of
civilization

Realization of Justice as defined by Law

Necessity of in its judicial administration
Administration
of Justice For preservation of rights and
prevention of injustice

The most essential function of the state

is to administer justice

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 Rise of
Political
State
Modern State
i.e. Welfare
State

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 • In primitive days, man redressed his
grievances and avenged himself upon his
enemies by his own hand. Every
individual was a famished wolf trying to
devour others. To quote Hobbes, “Kill
whom you can and take what you can
History : was the slogan of the day”.

Stage I • In order to live a decent and orderly life

in society, the powers of the state
followed by the idea of force became
necessary. The administration of justice
is the modern and civilised substitute for
the primitive practices of private
vengeance and self-help

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 • The second stage in the
history of administration of
justice started with the rise of
political state. The states
were not strong enough to
regulate crime and inflict
History : punishment on the criminals.
Stage II The state merely regulated
the private vengeances and
violent self help.
• The state enforce the concept
of “ tooth for a tooth’; eye for
an eye “ and “life for life”.
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 • With the growth of the
power of the state the state
began to act as a judge to
access liability and impose
penalty.
History :
• The civil law and
Stage III administration of justice
helped the wronged and
became a substitute for the
violent self help of the
primitive days.
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 Advantages of Administration of Justice

Uniformity and consistency

Predictability with knowledge of

fixed formal rules which
represent the result of collective
wisdom of the society

Impartiality and equality

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 • It brings uniformity in the administration
of justice.
• As the law is known to the citizens, it
enables them to regulate their conduct
in accordance with it.
• As the rules are fixed, it helps judges in
applying the law uniformly.
• As justice is doing according to the fixed
advantages principles of law, it ensures impartiality
and equality.
• The rules of law represent the collective
wisdom of the community, therefore in
following them there are little chances of
going wrong.
• It brings uniformity and consistency in
the law and it causes a systematic
development of law.

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 Disadvantages
Rigidity
Makes the system
Conservative

Technical and Formal

The system becomes

complex

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• It makes law rigid. The same rules are applied to all the cases of
similar nature and it sometimes caused hardships and injustice.
• Law tends to become conservative. It does not keep paced with the
changed conditions and so it is not in accordance with the new ideas
and principle of justice.
• Law becomes greater formal. Greater importance is attached to the
form then to the substance. It brings many evils and causes injustice.
• The law becomes very complex. It no longer remains easy to
understand. Thus law loses certainty which is very essential for a
good law. It was due to these disadvantages that salmond said that
law is without doubt a remedy for greater evil, yet it brings with it evil
of its own.

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 • The Administration of
Justice is divided into two
parts-
DIVISION OF
ADMINSTARTION
OF JUSTICE • (1) Civil

• (2) Criminal

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 • The wrongs which are the
subject matter of civil
Civil proceedings are called civil
wrongs wrongs.

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 Civil wrongs

An act comprised
of two parts.

a tort, is an act
against another the breach of the
person or their terms of a
property. contract.

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 • A crime is an act committed
or omitted, in violation of a
public law, either forbidding
or commanding it; a breach
or violation of some public
right or duty due to a whole
crimes community, considered as a
community. In its social
aggregate capacity, as
distinguished from a civil
injury.

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 Civil and criminal liability.. How decided…

The position of the person

who commits or threatens to The liability is civil or criminal
commit a wrong and thus according to the proceedings
exposes himself to such to which the wrong doer is
proceedings is called liability. subjected.

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 Distinction
Separate
Procedure

Two separate
Consequences
Court of Set

Points of
Distinction

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 Civil rights
• The rights enforced by civil proceedings are of two
kinds:-
• 1. Primary
• 2. Sanctioning or remedial rights
• Primary rights: Primary rights are those rights which
exist as such and they do not have their source in some
wrong.
• Sanctioning or remedial rights: Sanctioning or
remedial rights are those rights which come into being
after the violation of primary rights.
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 Civil rights
• The administration of civil justice is of two kinds this division is based
on the nature of the rights which is to be enforced by the civil
proceedings:-
• 1. Specific enforcement: - The first aim of the law is to enforce the
primary rights where the primary rights themselves can be enforced,
there is no question of any sanctioning right for that purpose. The
cases of the enforcement of the primary right are where a defendant
is compelled to perform a contract. The enforcement of the primary
right is called specific enforcement.
• 2. Sanctional enforcement: - There are cases where the primary
rights as such cannot be enforced. In such cases sanctioning rights are
enforced salmond calls the enforcement of the sanctioning rights as
sanctional enforcement.

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 Civil rights
• The first kind of cases of sanctional
enforcement is those where it is not possible
to enforce the primary rights.
• The second kind of the case where the
sanctional enforcement is applied are those in
which the law can enforce the primary rights,
it does not enforce it as a matter of policy and
awards damages only.

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 Civil rights
The rights of the plaintiff is either :-
• To receive money from the defendant which
amounts to penalty on part of the defendant
or
• To receive damages or pecuniary
compensation. It is of the following nature :-
• Restitution
• Penal redress

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 Civil rights
• This division is from the defendant’s point of view
and not from the plaintiffs because for the latter it is
always a compensation for the loss he has suffered.
• If the defendant is ordered to return or to restore
any benefit which he has taken from the plaintiff it is
restitution.
• If the law compels the defendant to pay to the
plaintiff the loss suffered by him by the wrongful act
of the defendant with any consideration is a penal
redress
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ADMINISTRATION OF CRIMINAL JUSTICE
• Criminal Justice refers to the agencies of government charged with
enforcing law, adjudicating crime, and correcting criminal conduct.
• The criminal justice system is essentially an instrument of social control:
• society considers some behaviours so dangerous and destructive that it
either strictly controls their occurrence or outlaws them outright.
• It is the job of the agencies of justice to prevent these behaviours by
apprehending and punishing transgressors or deterring their future
occurrence.
• Although society maintains other forms of social control, such as the
family, school etc they are designed to deal with moral, not legal,
misbehaviour.
• Only the criminal justice system has the power to control crime and
punish criminals

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objectives of the criminal justice system

1.To prevent the occurrence of crime.

2. To punish the criminals.

3.To rehabilitate the criminals.

4.To compensate the victims as far as possible.

5.To maintain law and order in the society.

6.To deter the offenders from committing any criminal act in the
future
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 criminal justice system
• Each society has its own way of social control
for which it frames certain laws and also
mentions the sanctions with them.
• These sanctions are nothing but the
punishments.

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 Features of Punishment

Deprivation
It is
of certain
consequenc
normally
e of an
recognized
offence
rights.

It is applied It s applied by
against the an organ of the
system that
author of made the act an
the offence offence

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 Theory of punishment
• The kinds of punishment given are surely influenced by the kind
of society one lives in.
• Though during ancient period of history punishment was more
severe as fear was taken as the prime instrument in preventing
crime. But with change in time and development of human mind
the punishment theories have become more tolerant to these
criminals.
• Debunking the stringent theories of punishment the modern
society is seen in loosening its hold on the criminals.
• The present scenario also witnesses the opposition of capital
punishment as inhumane, though it was a major form of
punishing the criminals earlier.

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• The law says that it does not really punish the
individual but punishes the guilty mind.
• As punishment generally is provided in
Criminal Law it becomes imperative on our
part to know what crime or an offence really
is.

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• Salmond’s definition of crime: Crime is an act
deemed by law to be harmful for the society as a
whole though its immediate victim may be an
individual.
• He further substantiates his point of view through
the following illustration  a murderer injures
primarily a particular victim, but its blatant disregard
of human life puts it beyond a mater of mere
compensation between the murderer and the
victim’s family
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 Necessity for punishment
• Punishment can be used as a method of
educing the incidence of criminal behaviour
either by deterring the potential offenders or
by incapacitating and preventing them from
repeating the offence or by reforming them
into law-abiding citizens

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 Various theories of punishment
Deterrent,

Theories of
punishment,
Retributive, contain
generally policies
regarding theories of
Preventive
punishment namely:

Reformative.

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 J. Bentham, as the founder of Deterrent
theory
J. Bentham, as the founder of this theory, states:
• “General prevention ought to be the chief end of punishment as
its real justification.
• If we could consider an offence, which has been, committed as an
isolated fact, the like of which would never recur, punishment
would be useless. It would only be adding one evil to another.
• But when we consider that an unpunished crime leaves the path
of crime open, not only to the same delinquent but also to all
those who may have the same motives and opportunities for
entering upon it, we perceive that punishment inflicted on the
individual becomes a source of security for all.

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 Deterrent Theory:
• Deterrence can be achieved with severity of punishment
• To neutralize this inclination of the mind, punishment inflicts
equal quantum of suffering on the offender so that it is no
longer attractive for him to carry out such committal of crimes.
• Pleasure and pain are two physical feelings or sensation that
nature has provided to mankind, to enable him to do certain
things or to desist from certain things, or to undo wrong things
previously done by him. It is like providing both a powerful
engine and an equally powerful break in the automobile. In
social life punishment introduces the element of ‘pain’ to
correct the excess action of a person carried out by the impulse
(pleasure) of his mind.

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• The basic idea of deterrence is to deter both
offenders and others from committing a
similar offence.

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 Preventive theory of punishment
• Punishment is, preventive or disabling.
• Its primary and general purpose being to deter
by fear, its secondary and special purpose is
wherever possible and expedient, to prevent a
repetition by wrongdoer by the disablement
of the offender.

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 Preventive theory of punishment
• This theory aims to prevent the crime rather then
avenging it.
• Looking at punishments from a more humane
perspective it rests on the fact that the need of a
punishment for a crime arises out of mere social
needs i.e. while sending the criminals to the prisons
the society is in turn trying to prevent the offender
from doing any other crime and thus protecting the
society from any anti-social elements.

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 An illustration
• An owner of the land puts a notice that ‘trespassers’
would be prosecuted. He does not want an actual
trespasser and to have the trouble and expense of
setting the law in motion against him. He hopes that
the threat would render any such action
unnecessary; his aim is not to punish trespass but to
prevent it. But if trespass still takes place he
undertakes prosecution. Thus the instrument which
he devised originally consist of a general warning
and not any particular convictions

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 Preventive theory of punishment
• The preventive theory can be explained in the
context of imprisonment as separating the
criminals from the society and thus preventing
any further crime by that offender and also by
putting certain restrictions on the criminal it
would prevent the criminal from committing
any offence in the future. Supporters of this
theory may also take Capital Punishment to be
a part of this theory.
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 Preventive theory of punishment
• A similar secondary purpose exists in sub penalties as
imprisonment and forfeiture of office, the
suspension of driving licenses and in the old penalty
of exile.
• The aim of this theory is not to repeat the crime
• It prefers to disable the wrong-doer from committing
any more crime but it ignores one of the basic object
of the criminal law, i.e. to reform the criminal.

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 Retributive theory of punishment
• The most stringent and harsh of all theories retributive
theory believes to end the crime in itself.
• This theory underlines the idea of vengeance and
revenge rather than that of social welfare and security.
• In primitive society, punishment was mainly retributive.
• The person wronged was allowed to have his revenge
against the wrongdoer.
• The principle for ‘eye for an eye’ or ‘tooth for a tooth’
was recognised and followed.

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 Retributive theory
• Retributivists aim to dispense punishment according to an
offender's moral blameworthiness (as measured by the
severity of crimes of which the offender was convicted).
Ideally, the harshness of punishments should be
proportionate to the seriousness of crimes.
• In reality, it is difficult to match punishments and crimes,
since there is no way to objectively calibrate the moral
depravity of particular crimes and/or the painfulness of
specific punishments.
• Retribution is a backward-looking theory of punishment. It
looks to the past to determine what to do in the present.

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 Reformative theory of punishment
• The object of punishment is the reform of the criminal.
• The object of punishment should be the moral reform  of the offender.
• According to this theory a crime is committed as a result of the conflict
between the character of a man and the motive of the criminal. One may
commit a crime either because the temptation of the motive is stronger or
because the restrain imposed by character is weaker.
• The reformative theory wants to strengthen the character of the man so that
he may not become an easy victim to his own temptation.
• According to this theory crime is like a disease so  you cannot cure by killing.
• For this reason a punishment like imprisonment should be given to criminal
and all prisons should be transformed into residences where physical moral
and intellectual training should be given in order to improve the character of
criminal.

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 Reformative theory of punishment
• Not looking to criminals as inhuman this theory puts
forward the changing nature of the modern society
where it presently looks into the fact that all other
theories have failed to put forward any such stable
theory, which would prevent the occurrence of further
crimes.
• Though it may be true that there has been a greater
onset of crimes today than it was earlier, but it may also
be argued that many of the criminals are also getting
reformed and leading a law-abiding life all-together.

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 Reformation
• Scope should be limited.
• In its extreme application, the reformative idea will not secure its
goal and might lead, as farce reformation should go hand in hand
with retribution and deterrence.
• The majesty of law must be maintained through punishments,
which has to be exemplary also. A certain amount of terror is also
desirable, and at times, evens necessary. So the idea of
deterrence cannot be ignored. Deterrence cannot be
wholeheartedly and completely substituted by reformation pure
and sole.
• A combination of deterrence and reformation can be seen in
Indian Jurisprudence.

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 Compensation
• The provisions relating to compensation to
victims of crime are contained in sections 357,
357(1), 357 (2), 357 (3), 357A, 358, 359 and
250 of the Code of Criminal Procedure, 1973.
• Constitution of India also provides for certain
safeguards to the victim of crime. Article 14
and 21 of the Constitution supports the
argument.

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 Compensation
• Section 357 is the most important provision which provides for
grant of compensation to the victims of crime.
• This provision combines the procedures of both criminal and
civil process as it would be just and necessary so as to save time
and money in seeking remedies in two different courts.
• The Law Commission of India in its forty First report, had stated
that our courts are not exercising the statutory powers as to
awarding compensation and recommended that compensation
must be provided as punishment in the penal code.
• Therefore based on the recommendation of the Law
Commission report, the provision in the old code was replaced
in the form of Sec 357.
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 Compensation
• As per Criminal procedure code Amendment Act, 2008, Section
357 A was inserted which specifically recognised victims right to
compensation.
• The said provision deals with the victim compensation scheme.
• The provision stipulates that every state government in
consultation with the Central govt shall prepare a scheme for
providing funds for the purpose of compensation to the victim
of crime or his dependents who require rehabilitation and who
have suffered loss or injury due to the crime.
• At the end of the trial, the trial court may recommend for
compensation.

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 Compensation
• As per Criminal law Amendment Act, 2013, victims of
acid attack are granted compensation which could be
utilized in their rehabilitation.
• Apart from these, there are also other enactments like
• Fatal accidents Act, 1855,
• The Motor vehicles Act, 1988,
• the Probation of offenders Act, 1958 which provide for
compensation to the victim.
• Discretion of the court to recover and pay
compensation.
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 Suresh V. State of Haryana
• May be, in spite of best efforts, the State fails in apprehending
and punishing the guilty but that does not prevent the State
from taking such steps as may reassure and protect the
victims of crime. Should justice to the victims depend only on
the punishment of the guilty? Should the victims have to wait
to get justice till such time that the handicaps in the system
which result in large scale acquittals of guilty, are removed? It
can be a long and seemingly endless wait. The need to
address cry of victims of crime, for whom the Constitution in
its Preamble holds out a guarantee for 'justice' is paramount.
How can the tears of the victim be wiped off when the system
itself is helpless to punish the guilty for want of collection of
evidence or for want of creating an environment in which
witnesses can fearlessly present the truth before the Court?
Justice to the victim has to be ensured irrespective of
whether or not the criminalLMis2022
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 Directions : Apex Court
• 1. It is the duty of the court, on taking cognizance of a
criminal offence , to ascertain whether there is tangible
material which showed the commission of the crime,
whether the victim was identifiable and whether the victim
of crime require immediate financial relief.
• 2. On being satisfied either on application or suo moto, the
court ought to direct the grant of interim compensation,
subject to the final determination of compensation at a
later stage. This duty continues at every stage of criminal
case, where compensation ought to be given but not given,
irrespective of the application by the victim. 

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 Directions : Apex Court
• 3. At the stage of final hearing , it is obligatory on the part of the
court to advert to the provision and record a finding as to
whether a case for grant of compensation had been made, if so
who is entitled to compensation and how much. 
• 4. Award of the compensation can be interim 
• 5. Gravity of the offence and need of victim are to be the guiding
factors, apart from other factors which are relevant to the facts
and circumstances of the case. 
• 6. There is also a need to consider upper revision in the scale of
compensation. Pending such hike, scale notified by the state of
Kerala 224 under the scheme may be adopted unless the scale
awarded by any other state or Union Territory is higher. 

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 Compensation
• It is really a matter of great solace that some new legislations like
The Protection of Women from Domestic Violence Act, 2005
• The Maintenance and Welfare of Parents and Senior Citizens Act,
2007
• The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 prescribes for mandatory compensation.
• However, these fragmented legal frameworks providing for
compensation by an offender to his victims for loss suffered by
the commission of the offence seems inadequate and a
comprehensive legislation is the need of the hour.
• In fact judiciary also has in several cases stressed the need for a
comprehensive legislation in this area.

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 Kinds of punishment
1. Capital punishment
2. Imprisonment
– a. Simple
– b. Rigorous.
3. Fine
4. Forfeiture of Property

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 Capital punishment
• The Death Penalty, legally known as capital
punishment, is the lawful imposition of death as
punishment for crimes. It is the act of killing or
executing a person who is found guilty of a serious
crime, by the government.

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 Crimes that can result in a death penalty are
known as capital crimes or capital offenses.

• The term capital originates from Latin

capitalis, literally "regarding the head" (Latin
caput). Hence, a capital crime was originally
one punished by the severing of the head.

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 Examples or Methods of Death Penalty

• Lethal injection
• Electrocution
• Lethal gas
• Hanging
• Firing squad

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 Concluding Remarks…

• Right to punish : Public or Private

• Comparing various theories
• Deterrence and reformation

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• Punishment cannot be based on the amount of pain and suffering
caused by a crime because:
• (a) there is no way to measure the pain and suffering caused by a
crime,
• (b) there is no way to measure the amount of pain and suffering
caused by a punishment, and
• (c) it is, therefore, impossible to match up a punishment with a
crime in such a way that the victims of each suffer equally or are
hurt in any exact ratio to each other.
• Furthermore, there is no agreement on what the ratio between a
crime and its punishment should be, and there is no rational way
to decide which of the infinite number of possible ratios is correct.

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• Punishment cannot be determined or set by the
crime itself as in the eye-for-an-eye principle,
because (a) most crimes cannot be duplicated,
• (b) in some cases, the results are desirable from
the offender's point of view and undesirable from
the retaliator's point of view, and
• (c) there is no good reason for selecting this one-
for-one ratio versus two-for-one or any other ratio.

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• Even if some amount of punishment or
compensation were proper, it would be wrong to
inflict more than the proper amount. Because
there is no way to determine the proper amount of
punishment or compensation for any offense, we
cannot be sure that any punishment or
compensation is justified in any particular case
and, therefore, we would risk becoming criminals if
we impose any punishment or compensation at all.

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• Punishment provides a justification for the
state.
• In a heterogeneous society, only a state can
ensure that only one code of punishment is
enforced.
• Only a state can guarantee that punishment is
administered in a distinctive way so that it can
be distinguished from ordinary crime.

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