Administration of Justice

1. Introduction:-

Generally, it is considered that war and administration of justice are

two most important functions of a state and if a state is incapable of
performing these functions then it can’t be rightly called a state.

Administration of justice implies the maintenance of peace and order within

a state by means of physical force of the State. So we can say that physical
force of the state is the prime requirement for a sound administration of
justice along with other factors which include social sanction, public
opinion, custom etc.

Thus, the administration of justice refers to protection of individual’s rights,

enforcement of laws and punishment of wrongdoer. In simple words,
administration of justice means justice according to law.

2. The Concept of Justice:-

The concept of justice is as old as origin and growth
of human society itself. As men live in society so there can be conflict of
interests between individuals and thus some kind of external force is
necessary in order to maintain peace and order in society.
The concept of justice has changed with the growth of state and today the
concept has also expanded its tentacles to different spheres of human
activities. (e.g. today we have civil justice, criminal justice, economic
justice, social justice and distributive justice etc.)
The violation of justice which is enforced by the law results into state
sanction which is generally called punishment.
The modern version of the concept of justice is expressed in terms of
‘justice according to law’, which Dicey has called the ‘rule of law’, which
means law and justice apply to all alike without any differentiation
whatsoever, that is, ‘no one is above law’.

3. Importance of Administration of Justice:-

4. Origin and growth of administration of justice:-
The origin and growth of administration of justice is
identical with the origin and growth of man. In modern civilized
societies, it has evolved through 4 stages:-

1st Stage (Primitive Stage):- In early stage when society was primitive
and private vengeance and self-help were the only remedies available to
the wronged person against the wrongdoer, he could get his wrongs
redressed with the help of his friends and relatives.

2nd Stage (Elementary/Infant Stage):- In the second stage, it was

considered that law and state were at infantry level during this stage. The
feeling of security as a responsibility by the state towards its individual
and his property was absent. The State didn’t have the enforcing power
through which it could punish the wrongdoer.

3rd Stage (Growth of Administration of Justice):-In this stage, wrongs

could be redressed by payment of compensation by the wrongdoer to the
victim who was affected by the wrongful act. Thus, upto this time justice
remained private in nature without compulsive force of the state.

4th Stage (Modernization):- It was the developmental stage where the

state geared its authority and took upon itself the responsibility of
administrative justice and punishing the wrongdoer using its force
whenever necessary.

5. Theories of Punishment:-
 There are 5 theories of punishment, i.e.

(a) Retributive Theory:-

Retributive means payback or to give in return. In primitive
societies, punishment was mainly retributive. The person wronged
was allowed to have revenge against the wrongdoer.
Basis of theory:-
This theory of punishment is based on the principle “an eye
for an eye and a tooth for a tooth”. Thus this supports the notion that
evil should be returned for evil without any regard to consequence and
that a man should be dealt with the manner in which he deals with
others.
Objective of Theory:-
The main objective of this theory is to make the offender
realize the suffering or pain of the victim by subjecting him to the
same kind of pain that he had inflicted on the victim. Thus, this theory
aims at taking a revenge rather than social welfare and transformation.

(b) Deterrent Theory:-

The term ‘deter’ means to abstain from doing an act.

Basis of theory:-
This theory is based on the principle that the offenders should
be treated in a manner that it deters the others from committing the
crime.

Objective of theory:-
The main objective or purpose of this theory is not the
revenge but to deter (prevent or terror) the criminals from doing the
crime or repeating the same crime in future.
Under this theory, severe punishment is inflicted upon the offender so
that he abstains from committing a crime in future and it would also
be a lesson to the other members of the society, as to what can be
consequences of committing a crime. The supporters of this theory
hold that fear in the mind of the person who plans to commit crime
and the consequences that could befall on him dissuades him from
committing the crime.
 Salmond observed that – punishment is before all things deterrent and
the chief aim of law of crime is to make the evil-doer an example and
a warning to all that are like minded with him.

(c) Preventive /Protective Theory:-

Basis of theory:-
This theory is founded or based on the idea to keep the offender
away from the society. The offenders are punishment with death,
imprisonment for life, transportation of life etc.
Objective of theory:-
This theory believes that by keeping criminals far away from
the society without any connection to it, the society will be safe and in
peace. This theory feels that protecting the society from criminals is
better than curing the minds of criminals.
Thus under this theory repetition of crime is prevented by disabling
the offender through measures such as imprisonment, death
punishment, amputation, banishment etc.
G.W. Paton suggests that preventive theory seeks to prevent the
prisoner from committing the crime by disabling him. This theory
does not lay much emphasis on the motive of the wrongdoer but seeks
to take away the physical power to commit the crime.

(d) Reformative Theory:-

Basis of theory:-
This theory is based on the principle that crime is like a
disease. As a surgeon operates on a person to remove the disease or
pain similarly a criminal can be reformed with a proper approach. This
theory uses social, economic, physical, psychological methods in
bringing about change in the minds of criminals.
In the words of Mahatma Gandhi, ‘Condemn the sin, not the
sinner’.

Objective of theory:-
 The object or purpose of this theory is to try to bring about a change
in the personality and character of the offender, so as to make him a
useful member of the society.
According to the supporters of this theory, even if an offender
commits a crime under certain circumstances, he does not cease to be
a human being. The circumstances under which he committed the
crime may not occur again. Therefore, an effort should be made to
reform him during his period of punishment. The criminals must be
educated and taught some art or craft or industry skills during his term
of imprisonment so that they may be able to lead a good life and
become respectable and responsible citizens after release from jail.
This theory further appeals to the judges that while awarding
punishment judges should take into consideration the character and
age of the offender, his antecedents, his family background, his
education and environment or circumstances in which he has
committed the crime, the motive of crime etc. The object of doing so
is – to acquaint the judge with the circumstances under which the
offence was committed so that he could award punishment that could
serve the ends of justice.

(e) Expiatory theory:-

Expiation means – repentance, regret, atonement or remorse.
Basis of theory:-
This theory is based on morals, rather being concerned with legal
concepts. According to this theory, repentance or expiation by the
offender itself is a punishment. It emphasizes more on ancient
religious perceptions regarding crime and punishment when prisoners
were placed in isolated cells to repent or expiate for their crime or
guilt from their core of heart and the one who succeeds it doing so
were let off.
This theory of punishment was prevalent in the ancient Indian
criminal law. Expiation was performed by way of uttering mantras,
fasting, or serving the victim or his dependants for the rest of life etc.
This theory also focuses on the principle – to pay for the sin
committed. Thus compensation is to be paid to the victim or
wrongdoer by the offender. Thus, criminal is punished economically.
Purpose of theory:-
 The purpose of this theory is to provide compensation to the
victim rather than providing physical punishment to the accused.

(f) Multiple Approach Theory or Modern theory:-

Multiple approach theory is the combination of all
theories discussed above as no theory of punishment is complete in
itself and application of any single theory may not render complete
justice. So, judicious combination of all the theories is the latest
approach. The deterrent, retributive, preventive and reformative
theories of punishment have their own merits and demerits but
unfortunately none of them takes notice of compensation which
should be paid to the victim of the crime. The modern view is that
punishment must not be merely to punish the offender or prevent
further occurrence of the crime but it must also seek to compensate the
victim of crime. In recent years, the Supreme Court of India in number
of cases [Bhim Singh v. State of J&K 1986, Rudal Shah v. State of
Bihar 1983] has awarded compensation to victims who suffered due
to torture or negligence by the prison or jail authorities.