JAMIA MILLIA ISLAMIA

FACULTY OF LAW

“Administration of Justice in Civil and

Criminal Justice”

NAME: SHANTANU AGNIHOTRI

COURSE: B.A. LLB (HONS.)
BATCH: II YEAR SEMESTER IV (REGULAR)
SUBJECT: JURISPRUDENCE
STUDENT ID: 201903738
ROLL NO: 57
SUBMITTED TO: Dr. Eakramuddin 
(Associate Professor)

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S.NO TITLE
1. THE CONCEPT OF JUSTICE
2. ORIGIN OF ADMINISTRATION OF JUSTICE
3. IMPORTANCE OF ADMINISTRATION OF JUSTICE
4. ADVANTAGES AND DISADVANTAGES OF ADMINISTRATION OF
JUSTICE
5. THEORIES OF PUNISHMENT
DETERRENT THEORY
RETRIBUTIVE THEORY
PREVENTIVE THEORY
EXPIATORY THEORY
REFORMATIVE THEORY
6. CASE LAWS
7. ADMINISTRATION OF CIVIL JUSTICE
8. PRIMARY AND SANCTIONING RIGHTS
9. DECLARATION OF RIGHT
10. CIVIL SUITS – CAUSES OF DELAY
11. MODEL RULES FOR SPEEDY DISPENSATION OF CIVIL JUSTICE
12. ARBITRATION – SETTLEMENT OF CIVIL DISPUTES
13. BIBLIOGRAPHY

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THE CONCEPT OF JUSTICE
The concept of justice did not originate recently but its origin is as old as the existence of
humans. This concept evolved as more noticeably along with the development of the concept
of state, which assures justice to every single citizen of the country through the instrument of
law. Humans sustain an inherent social nature and want to live peacefully in this society and
try to avoid conflict of interest. Every individual expects rightful conduct from other
individuals. Therefore, justice is a significant instrument from where the concept of rights,
duties, and equality evolves. In a territory, without the weapon of justice, it becomes very
difficult for the government to retain an orderly society. Further, with the development of
law, the concept of delivering justice also broadened. The significance of legal justice is that
it tries to ensure uniformity and certainty of law but at the same time, it also ensures that the
rights and duties of every citizen are duly respected. Hence, an essential feature is the
element of being impartial while delivering justice and one should be just and fair. The
modern concept of justice is expressed as justice according to the law which is also known as
the rule of law. 1

ORIGIN OF ADMINISTRATION OF JUSTICE

The concept and administration of justice, which is prevailing in recent contemporary
societies, developed through several stages. In a primitive society, private retribution and
self-help were the only remedies accessible by the wronged person against the wrongdoer.
The second stage of development of the society is characterized by the state coming into
existence and taking its fundamental form when the functions were persuasive in nature. The
third stage of development of society witnessed retaliation of wrongs by making payment of
compensation by the wrongdoer to the victim who is affected by the wrongful act. But with
the course of duration, the government exerted its authority and took the responsibility of the
administration of justice. It was the responsibility of the government to punish the wrongdoer
by utilizing its power whenever necessary and deliver it to the citizens. This stage of
development witnessed that acts of wrong done by any individual was no longer treated as a
private wrong but it was contemplated as an offense against the state and such individuals
will be punishable according to the law of the country. Accordingly, the prevailing
administration of justice owes its origin and growth to the incremental evaluation of the state
and its power. Thus, with increasing state power the self-help remedies which existed in the
1
Dr. S.R Myneni, Jurisprudence(Legal Theory), Asia Law House; 3rd edition (1 January 2018)

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earlier stage were substituted by the administration of criminal and civil justice through law
courts of the nation.

IMPORTANCE OF ADMINISTRATION OF JUSTICE

Every human being commonly inherits a selfish nature and that is the reason there is a
requirement of external coercive authority in order to maintain an individual within limits and
restrain the unfettered liberty of that individual. Unlimited and unrestrained liberty would
lead to a situation of chaos. The true meaning of liberty is that liberty comprises the power to
do everything that does not injure another which implies that every individual is unrestricted
to do whatever he desires provided that his actions must not infringe on the equal freedom of
any other individual. Thus, liberty speaks about the freedom of action so far permitted by
law. In order to keep people within control, a common power is necessary and the state also
requires force to prevent the recalcitrant minority from attaining an unfair benefit over
common law-abiding people. Hence, the force of the state is an inevitable instrument for the
protection of the rights of individuals in society.

Justice is said to be the absolute end of law and the goal of society, which judges of the court
have been pouring into law with new variants of justice in the form of contemporary values
and need-based rights like freedom, liberty, dignity, equality, social justice as authorized by
the constitutional document and access to justice to the people is, therefore, the foundation of
the Constitution of India. 2

According to Dicey, rule of law meant treating people equally and every human being is
subject to the law of the territory. Law is an effective weapon to render justice to each
individual of the country but it can also be utilized as a device to cause massive exploitation
of people which was witnessed during British rule. After independence and particularly
during the post-emergency era the higher courts have recognized that the constitution which
is the supreme law if the country guarantees not the only rule of law but also the rule of
justice and if any law which is not just, fair and reasonable then it will be considered as
invalid under the constitution. 

ADVANTAGES AND DISADVANTAGES OF ADMINISTRATION OF JUSTICE

2
State of Haryana v. Darshana Devi, AIR 1979 SC 855.

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In order to make effective and efficient administration of justice by the courts of law has
currently become one of the important functions of the state. The courts of the country are
accountable for the effective administration of justice according to the laws formulated by the
legislature. Uniformity, certainty, impartiality, and equality are the most significant elements
for the adequate administration of justice. The judge cannot act arbitrarily while imparting
justice, it is bound to deliver its judgment according to the fixed principles of law. For the
application of the laws uniformly without any kind of fear or favor, the judges of every court
are provided with the codified laws which they are bound to follow.
But despite that, the administration of justice has to suffer from certain drawbacks. Rigidity,
formality, and complexity of laws are some of the main drawbacks coming in between the
effective administration of justice, and hence, Salmond was of the view that the law is a
remedy for greater evil but it brings with it evils of its own.

THEORIES OF PUNISHMENT

Deterrent Punishment.

The ends of criminal justice are five in number, and in respect of the purposes so served by it,
punishment may be distinguished as (1) Deterrent, (2) Preventive, (3) Reformative, (4)
Retributive, and (5) Expiatory. Of these aspects the first is the essential and all important one,
the others being merely accessory. Punishment is before all things deterrent, and the chief end
of the law of crime is to make the evildoer an example and a warning to all that are like-
minded with him. Offences are committed by reason of a conflict between the interests (real
or apparent, permanent or temporary) of the wrongdoer, and those of society at large.
Punishment prevents offences by destroying this conflict of interests to which they owe their
origin—by making all deeds which are injurious to others injurious also to the doers of them
—by making every offence, in the words of Locke, "an ill bargain to the offender." Men do
injustice because they have no sufficient motive to seek justice, which is the good of others
rather than that of the doer of it. The purpose of the criminal law is to supply by art the
motives which are thus wanting in the nature of things.

Criticism:
There is a lot of criticism of the deterrent theory of punishment in modern times. It has been
criticized on the grounds that it has proved ineffective in checking crimes and also that
excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy

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of the public towards those who are given cruel and inhuman punishment. Hardened
criminals are not afraid of punishment. Punishment losses its horror once the criminal is
punished.

Preventive Punishment
Punishment is in the second-place 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 of wrongdoing by the disablement of the offender. We hang murderers,
not merely that we may put into the hearts of others like them the fear of a like fate, but for
the same reason for which we kill snakes, namely because it is better for us that they should
be out of the world than in it. A similar secondary purpose exists in such penalties as
imprisonment, exile, and forfeiture of office. 3

Criticism
Critics points out that Preventative Punishment has the undesirable effect of hardening first
offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in
the association of Harden Criminals.

Retributive Theory
In primitive societies punishment was mainly retributive. It was regarded as an end in itself.
According to this theory, evil should be returned for evil without any regard to consequence.
The theory is based on the rule of natural justice which is expressed by the maxim "an eye for
an eye and a tooth for a tooth". The theory therefore, emphasises that the pain to be inflicted
on the offender by way of punishment must outweigh the pleasure derived by him from his
criminal act. Thus, the retributive theory suggests that punishment is an expression of
society's disapprobation for the offender's criminal act.

It has been rightly pointed out by Sir Walter Moberly that the "drama of wrong doing and its
retribution has indeed been an unending fascination for the human mind".4 He further
suggests that retributive punishment serves to express and satisfy the righteous indignation
with which a healthy minded community regards transgression as an antisocial behaviour.

3
Dr. S.R Myneni, Jurisprudence(Legal Theory), Asia Law House; 3rd edition (1 January 2018)
4
 J. Ryberg and J. Corlett: The Ethics of Punishment, Palgrave Macmillan; Edn. 2010

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It is however, questionable whether retribution can be justified on the ground of social policy.
The theory of retribution owes its origin in the crude animal instinct of individual or group to
retaliate when hurt and therefore, its approach to offender is vindictive and out of tune with
the modern reformative concept of punishment.

Those who support retributive theory claim that punishment is the appropriate moral response
to criminal acts because the perpetrators of crime deserve to be punished. On this issue, it
shares a common view with deterrence theory which also defends punishment as morally just
and that the severity of the punishment inflicted upon the offender should be in proposition to
the gravity of the crime for which he has been found guilty. The retributivists. therefore, harp
upon infliction of bodily pain and suffering, imprisonment, deportation and even the death
sentence which renders the theory irrational, revengeful and unjustifiably barbaric.

Closely connected with the idea of retribution is the notion of expiation which means blotting
out the guilt by suffering an appropriate punishment. This in other words means that guilt
plus punishment is equal to innocence. As Salmond rightly puts it revenge is the right of the
injured person. The penalty of wrong doing is a debt which the offender owes to his victim,
and when the punishment has been endured. the debt is paid the liability extinguished,
innocence is substituted for guilt, and the vinculum jusris forged by crime is dissolved. The
object of true redress is to substitute justice for injustice. The practical utility of the Expiatory
theory cannot be undermined as it is an expression of refinement and purification of the
criminal by self-motivation which ultimately gives him satisfaction that his guilt has been
washed off and he is relegated to a position as if he had done no wrong Expiation in the form
of penance occupied an important place in the ancient Indian penology. 5

Criticism
Critics of retributive theory points out that punishment per se is not a remedy for the mischief
committed by the offender. It merely aggravates the mischief. Punishment in itself evil and
can be justified only on the ground that it yields better result. Revenge is wild justice.
Retribution is only a subsidiary purpose served by punishment.6
Expiatory Theory
5
P.J. Fitzgerald: Salmond on Jurisprudence, Sweet and Maxwell (12th ed.) 2016
6
www.legalserviceindia.com/legal/administration-of-justice( Date accessed: April 12, 2021, 12.50 pm)

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As a matter of fact, expiatory theory being solely based on morality, has little to do with law
o: legal concepts. Therefore, many jurists refuse to accept it as a legal theory of punishment.
This theory is more related to ancient religious perceptions regarding crime and punishment
when prisoners were placed in isolated cells to repent or expiate for their crime or guilt from
the core of their heart and resolve to shun crime. It was believed that anyone who sincerely
repents for his misdeeds or crimes, deserves that among who sincerely represents for his
misdeeds or crimes, deserves to be forgiven and let off. The ancient Hindu law commentator
Manu was a great admirer of expiation as a form of punishment for the rehabilitation of the
criminal in the society.

The expiatory theory, being based on ethical considerations, has lost its relevance in the
modern system of punishment. In the present age of materialism and declining moral values,
expiation can hardly be effective in bringing about a change in the criminal mentality of
offenders and therefore, expiatory theory as a punishment is not suited in the present context
of rationalised penal policies.7

Reformative Theory
The reformative theory of punishment emphasises on reformation of offenders through the
method of individualisation. It is based on the humanistic principle that even if an offender
commits a crime, he does not cease to be a human being. Therefore, an effort should be made
to reform him during the period of his incarceration. While awarding the punishment, the
Judge must take into consideration the age and character of the offender, his antecedents and
also the circumstances under which he committed the criminal act. Thus, as opposed to
deterrent theory, the reformative theory aims at socialisation of the offender so that the
factors which motivated him to commit the crime are eliminated and he gets a chance of
leading a normal life in the society. The theory is based on the principle, hate the sin and not
the sinner.

It must be noted that reformative theory shows a radical departure from the earlier theories
and seeks to bring about a positive change in the attitude of the offender so as to rehabilitate
him as a law-abiding member of society. Thus, punishment is used as a measure to reclaim
the offender and not to torture him. The theory therefore, condemns all kinds of corporal
7
Heinrich Oppenheimer, Rationale of Punishment, p 215, University of London Press, (1975)

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punishments. The major thrust of the reformist theory is rehabilitation of inmates in penal
institutions so that they are transformed into law abiding citizens. It focuses greater attention
on humanly treatment of prisoners inside the prison. It suggests that instead of prisoners
being allowed to idle in jail, they should be properly taught, educated and trained so as to
adjust themselves to normal life in the community after their release from the penal
institution. This purpose may be achieved through the agencies of parole and probation which
have been accepted as modern techniques of reforming the offenders all around the world.

The reformative theory suggests that punishment is only justiciable if it looks to the future
and not to the past. It should not be regarded as setting an old account but rather as opening a
new one. Thus, the advocates of this theory justify prisonisation not solely for the purpose of
isolating criminals and eliminating them from the society, but to bring about a change in their
mental attitude through effective measures of reformation during the term of their sentence.

Undoubtedly, the modern trend is in favour of reformative justice but there is a strong feeling
that the method should not be stretched too far. The reformative methods have proved useful
in cases of juvenile delinquents, first offenders and women. Sex-psychopaths also seem to
respond favourably to the reformative method of punishment. But hardened and professional
offenders hardly respond favourably to reformative ideology because they are incorrigible
offenders with whom crime is not so much a bad habit but it is an ineradicable instinct in
them. For such offenders, deterrent punishment is perhaps the only alternative. Commenting
on this aspect of punishment, Salmond observed that although general substitution of
reformation in place of deterrence may seem disastrous, it is possible and desirable in certain
cases specially for abnormals and degenerates who have diminished responsibility. It
therefore, follows that punishment should not be regarded as an end in itself but only as a
means, the end being the social security and rehabilitation of offenders in society. Considered
from this point of view, the importance of the deterrent element in criminal Justice system
should not be overlooked, but at the same time it must not be allowed to assume undue
prominence. How much prominence it may be allowed is a question of time, place and
circumstance.

The focal point of reformists view is that an effort should be made to restore the offender to
society as a good and law-abiding citizen. The theory believes that if persons of doubtful
characters are given proper education and training in such a manner as to enable them to earn

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their livelihood by honest means, they would shun adopting foul methods for their
subsistence. But Oppenheim has criticized this view stating that reformative approach would
deprive punishment of its sting or painful effect and if criminal is looked upon as an object of
pity, not of hatred, punishment would become a work of charity. 8 Turner also opposed
reformative view and held that punishment to be effective, must be unpleasant and
detrimental in effect on the offender

It is significant to note that the authors of American Study also criticised reformative theory
saying, "it never commanded more than a lip service from most of its more powerful
adherents. The prison administrators who embraced rehabilitative idea, have done so because
it increased their power over inmates.”

It is well known that punishment carries with it a stigma inasmuch as it fetters the normal
liberty of the prisoner. It has become an integral part of law enforcement for securing social
control. More recently, the reformative theory is being extensively used as a method of
treatment of mentally depraved offenders. The present trend is to treat the offender rather
than to punish him This is done by classifying offenders on the basis of age, sex, gravity of
offence and mental depravity. Thus, clinical method pre-supposes punishment as a kind of
social surgery since criminal is essentially a product of conflict between interests of
individuals in the society.

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 prevent further occurrence of crime but it must also seek to compensate the victim
of crime. The contention is that "the mainspring of criminality is greed and if the offender is
made to return the ill-gotten benefits of crime, the spring of criminality would dry up". 9 In
recent years, the Supreme Court of India has awarded compensation to victims who suffered
due to torture or negligence by the prison or jail authorities.10

CASE LAWS
8
Heinrich Oppenheimer, Rationale of Punishment, p 215, University of London Press, (1975)
9
Mahajan, V. D. Jurisprudence & Legal Theory, (5th ed.) p. 147
10
Satestian Hongray v. Union of India, AIR 1984 SC 1026

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The Supreme Court in T.K. Gopal v. State of Karnataka 11, focussing on the need to
reformation of criminals through therapeutic approach, observed:
"The law requires that a criminal should be punished and the punishment prescribed must be
meted out to him, but at the same time, reform of the criminal through various processes,
despite he having committed a crime, should entitle him to all the basic rights, human dignity
and human sympathy."

The Court held that there have been a catena of cases wherein the need for prison reforms has
been reiterated keeping in view the fact that the prisoner who is lodged in jail does not lose
his fundamental or basic rights and that he must be treated with compassion.12

The Apex Court in D.K. Basu v. State of West Bengal 13 held that custodial torture or death
in the lock-up strikes a blow at the rule of law and therefore, the Court even recommended a
change in the law of evidence to throw the onus on the police or jail authorities as to how a
prisoner in their custody came to meet the death under suspicious circumstances. The Court
has provided monetary compensation to the victims of police excesses several cases.14

The Supreme Court in Munshi Singh Gautam v. State of Madhya Pradesh 15 reiterated that
Courts should exhibit more sensitivity and adopt realistic rather than narrow technical
approach to be problem of custodial violence or torture. This case involved death in police
custody due to beating by police official in order to extract confession. The Court depreciated
the custodial torture by police and ordered the State Government due to pay compensation to
the family of the deceased.

In view of the rising incidences of violence and torture in police or jail custody, there is dire
need for the authorities of these departments to do some introspection and try to improve
their tarnished image. They must realise that they are not above the law.

11
AIR 2000 SC 1669 (1674)
12
Francis Coralie Mullin v. Administrator U. T. Delhi, AIR 1981 SC 746
13
1997 Cr. LJ 743
14
State of Andhra Pradesh v. Challa Ramkishna Reddy, AIR 2000 SC 2083
15
AIR 2005 SC 402

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It must, however, be stated that no single theory would serve the interest of criminal justice
administration. Undoubtedly, reformative theory must be given due importance but at the
same time the deterrent and preventive aspect of punishment must also not be completely
ignored. Thus, reformation may be used as a general method of treating the offenders but
those who do not respond favourably to the corrective method of treatment must be severely
punished. The penal measures must be directed to show society's abhorrence to crime. An
ideal penal policy should resort to reformation in case of juveniles or first offenders and
deterrence for recidivist and hardened criminals. It is for this reason that modern penologists
give more importance to institutional methods of treating the offender rather than resorting to
the conventional methods of punishment which have now become obsolete and outdated. The
punishment should be directed to minimise suffering to offenders and at the same time
develop social morals and discipline among citizens. In other words, it should neither be
intolerably severe nor unrealistically lenient. Further, it must also be borne in mind that penal
policy reflects the societal reaction to crime and therefore, the motive for punishment shall
largely depend on the social structure and accepted norms and values of a given society. The
need of the day is for a rehabilitative programme for all inmates with a substantial diminution
in the use of imprisonment and incarceration.16

ADMINISTRATION OF CIVIL JUSTICE

The immediate objects of law are the creation and protection of legal rights. A right in the
strictest sense of the term, is the capacity residing in a man of controlling, with the assent and
assistance of the State, the actions of others. In jurisprudential terms, legal rights are
recognised by law and enforced by the power of a State. These rights are enforced through
administration of civil justice which consists in the enforcement and protection of rights as
opposed to the punishment of wrongs.
The rights to be enforced through administration of civil justice may either be primary rights
or secondary rights.

Primary and Sanctioning Rights

16
Dr. N.V Paranjape, Jurisprudence and Legal Theory, Central Law Agency, 9th edition, 2019

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Primary rights are those rights which do not have the violation of another right. On the other
hand, a sanctioning right is one which arises out of the violation of another right. It is also
called a remedial right because it comes into existence consequent to violation of a private
right. Thus one's right not to be libelled or assaulted is a primary right but right to obtain
pecuniary compensation on being libelled or assaulted by some other person is a sanctioning
right. Again, a right to fulfilment of a contract is a primary right but right to recover damages
for its breach is a sanctioning right.

The enforcement of primary rights is called specific performance wherein the defendant is
compelled to do the very act which has been agreed upon to be done. Examples of specific
performance are proceedings whereby a defendant is compelled to pay a debt or to perform a
contract or restore land or property wrongfully taken or detained. It may also include
refraining the defendant from committing or continuing nuisance or trespass or to repay
money received by mistake or obtained by fraud.

In case of sanctioning or remedial right the purpose may be either (i) imposition of a
pecuniary penalty upon the defendant for the wrong which he has committed, or (ii)
providing for pecuniary compensation to the plaintiff in respect of the damages which he has
suffered from the defendant's wrongful act. In the former, pecuniary penalty is payable to the
State while in the latter the pecuniary compensation is payable to the plaintiff whose right is
violated or to whom the injury is caused.

The second form of sanctioning right

The right to receive pecuniary compensation or damages from the wrongdoer may be divided
into two kinds (i) restitution; and (ii) penal redress. As regards the injured party, i.e., these
two are the same in their nature and operation, but plaintiff, the reference to wrongdoer, i.e.,
defendant, they are very different. In restitution, the defendant is compelled to give up or
restore the pecuniary value or some benefit which he has wrongfully obtained by causing
damage to the plaintiff. The penal redress, on the other hand, involves not only restoration of
all benefits which the wrongdoer has derived from his wrongful act, but also a full redress for
the plaintiff's loss. Thus in case of penal redress, compensation has a double aspect, namely,
from the point of view of the plaintiff it is compensation and nothing more but from the
defendant's point of view, it is a penalty imposed upon him his wrong doing.17
17
P.J. Fitzgerald: Salmond on Jurisprudence, Sweet and Maxwell (12th ed.) 2016

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Some American realists have argued that keeping aside the cases of specific enforcement,
there is no primary right that another shall perform his contract, there is simply a sanctioning
right that he shall pay damages if he commits a breach. Therefore, in reality there are only
sanctioning rights and no primary rights. But the true position is that if one of the parties
breaks the contract, the law enforces other party's primary right by bringing into play its
sanctioning right to pay damages. Therefore, to assert that in reality there are only secondary
rights and no primary rights, is to mistake a right for the method of its enforcement

Declaration of right
At times, the petitioner may approach civil Court not for the enforcement of any right but for
a declaration that such right exists, though it is presently not in dispute, but a dispute in
regard to it may arise in future. The examples are declaration of legitimacy of children or
nullity of marriage, interpretation of will etc.

Section 42 of the Specific Relief Act, 1963 provides for declamatory right It authorises the
grant of a bare declaration of right if the following conditions are satisfied:

(1) declaration must relate either to the plaintiff's legal character or to a right to property:
(2) the defendant should have denied or be interested in denying the plaintiff's title is such
right.
(3) The plaintiff should not have asked for a consequential relief. If consequential relief along
with declaration of right has seen sought. the suit would be dismissed.

The Privy Council decision in Ali Khan v. Abdul Ghani, must be referred to as an
illustration of declaratory right. In that case, the plaintiff sued for a declaration of his title as
Zamindar and no other relief was prayed for. The bare declaration sought was granted
because on the basis of that declaration the plaintiff could apply to a Revenue Court for
enhancement of the rent payable by Ryots (tenants).

Civil Suits-Causes of Delay

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Section 9 of the Civil Procedure Code, 1908 (as amended in 1976) defines a civil suit. The
civil courts in India have the power to try all suits of civil nature excepting those the
cognizance of which is expressly or impliedly barred These courts can grant declaratory,
prohibitory and momentary reliefs.

The hierarchy of Civil Courts includes:

(i)Civil Courts of original jurisdiction,
(ii) Civil Courts of first appellate jurisdiction,
(iii) Civil Courts of second appellate jurisdiction, and
(iv) final Court of appeal, i.e., the Supreme Court Ordinarily, District Judge's Court is the
Court of first appeal and High Court is of second appeal.

The distressing delay in the disposal of a civil suit is a matter of concern for everyone. But
the procedural formalities involved in inspection, admission of facts and interrogatories are
some inevitable hurdles in the quick disposal of civil suits. Interlocutory applications also
contribute to the delay because quite often an interim order continues to be operative almost
till the culmination of the litigation. The superior courts are generally disinclined to interfere
with the decisions of the first Court.

The procedure to be followed in case of a civil suit is so cumbersome that speedy disposal
becomes almost Impossible. The plaintiff in plaint has to mentioned all the necessary
particulars as mentioned in Order 7 Rules 1 to 18 of CP.C. and the particulars to be set forth
in the written statement should be in accordance with Order 8, Rules 1 to 10 of CPC. Much
time is wasted in this formality.

At the evidential stage, there is no time-limit to the number of witnesses to be examined by

the party. Cross examination of witnesses consumes lot of time.

After the completion of evidence the case comes to the stage of argument. Repetition of the
same facts and citing of voluminous case-law makes the argument taxing and boring and
lawyers generally drag on the case for months if not years.
Then comes the stage of final judgment which has to be on each and every issue. This is in
the form of 'decree' of dismissal of the case.

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Many a time it so happens that the plaintiff having no case on media allows the case to be
dismissed in default and then resorts to the proceedings for restoration of the case. Similarly,
when defendant party has no real defence, he allows the case to be decided ex-parte and then
applied for setting aside of the ex parte judgment and decree. These dilatory tactics adopted
by the part need to be curbed by stem action by the Court.

Frequent adjournments, applications for substitution of heirs of the deceased further prolongs
the suit. The most troublesome part is the execution of the decree, particularly, decree for
recovery of immovable property and realisation of money in a money suit.18

Model Rules for Speedy Dispensation of Civil Justice

Amendments in Section 89 CPC were introduced by the CPC (Amendment) Acts of 1999 and
2002 to provide quick dispensation of justice in civil cases by providing recourse to the
Alterative Disputes Resolutions (ADRS). A committee headed by Justice M. Jagannadha
Rao, the then chairman of the Law Commission of India, was appointed by the Supreme
Court to suggest measures and devise Model Case Management formula for introducing ADR
system in dispensation of civil cases. Mediation, conciliation, arbitration and negotiation
were considered to be most suitable measures for quick disposal of civil cases by mutual
consent and co-operation of the litigant parties. The Committee submitted its Report in three
parts. The first report contained the consideration of the various grievances relating to
amendment of Section 89 CPC and the second report dealt with mediation and conciliation as
ADRs. The third report contained a conceptual appraisal of the case-management. The
recommendations of all the three reports were accepted by the Supreme Court and included in
its judgment given in Salem Advocates Bar Association, Tamil Nadu v. Union of India.19

Under the amended Section 89 of the Code of Civil Procedure, the parties to a civil suit
would be offered an opportunity to sort out their problem and dispute by resorting to ADRs
and it is only when these alternative methods fail, the case would be finally taken up for
hearing for disposal by the civil court.20
18
www.scholarship.law.umn.edu/cgi/justice-administrationcontext=civil_articles ( Date accessed: April 12,
2021, 3.20 pm)
19
AIR 2005 SC 3353.
20
Dr. N.V Paranjape, Jurisprudence and Legal Theory, Central Law Agency, 9th edition, 2019

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ARBITRATION, as a cost-effective mechanism for settlement of civil disputes.

With the primary purpose to encourage speedy disposal of civil and commercial disputes, a
new legislation in the form of Arbitration and Conciliation Act, 19962 was enacted to provide
efficacious dispute resolution mechanism in the judicial system which was marred with
inordinate delays and backlog of cases.

The Act as amended in 2015, provides strict timelines for completion of arbitral proceedings
alongwith scope for resolution of disputes by fast-track mechanism.

The arbitral proceedings are to be necessarily proceeded by pre-arbitral proceeding ensuring

independence and impartiality of arbitrators.

The Supreme Court in Voestalpine Schienen Gmbh v Delhi Metro Rail Corporation 21 has
emphasized that independence and impartiality of arbitrator are hallmarks of any arbitration
proceedings. Despite the fact that the relationship between parties to the arbitration and the
arbitrators are contractual in nature, because of their appointment by parties concerned, they
should be above the partisan interest of all the parties not act, to further the particular interest
of either parties because he has an adjudicatory role to perform during arbitral proceedings

The Court further clarified that independence and impartiality are two different concepts. An
arbitrator may be independent and yet, lack impartiality, or vice-versa, Impartiality is a more
subjective concept as compared to independence. On the other hand, independence is an
objective concept, which is more straight forwardly ascertainable the parties at the outset of
the arbitration proceedings in the light of circumstances disclosed by arbitrator, while
partiality is more likely to surface during the arbitral proceedings.

The provisions relating to arbitration are contained in Part Sections to 60 of the Arbitration
and Conciliation Act, 1996

Part II of the Act deals with conciliation comprising Sections 61 to 81 which is yet another
ADR technique for speedy resolution of civil or commercial disputes of the parties

21
(2017) 4 SCC 665 (para 20, 22)

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Briefly stated, conciliation means any third party assisted alternate dispute resolution (ADR).
The conciliator helps and assists the parties to reach an amicable settlement of their dispute
whereas the arbitrator does not merely assist the parties but he also actively arbitrates and
resolves the disputes by making an arbitral award.22

According to Russel, an arbitrator is not a conciliator. He cannot ignore the law or misapply,
it in order to do what he thinks just and reasonable. Unlike conciliator, an arbitrator is a
tribunal constituted by parties to decide disputes in accordance with the law.23

BIBLIOGRAPHY
BOOKS REFERRED

● Mahajan, V. D, Jurisprudence & Legal Theory, Eastern Book Company, (5th ed.) 1987

● Dr. N.V Paranjape, Jurisprudence and Legal Theory, Central Law Agency, 9th edition,
2019

22
P.J. Fitzgerald: Salmond on Jurisprudence, Sweet and Maxwell (12th ed.) 2016
23
Russel on Arbitration, Sweet and Maxwell, Page. 437, 21st Edn, 1997

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● J. Ryberg and J. Corlett: The Ethics of Punishment, Palgrave Macmillan; Edn. 2010

● P.J. Fitzgerald: Salmond on Jurisprudence, Sweet and Maxwell (12th ed.) 2016

● Dr. S.R Myneni, Jurisprudence (Legal Theory), Asia Law House; 3rd edition (2018)

JOURNALS REFERRED

● Russel on Arbitration, Sweet and Maxwell, Page. 437, 21st Edn, 1997

● Heinrich Oppenheimer, Rationale of Punishment, p 215, University of London Press,

(1975)

WEBSITES REFERRED

● www.legalserviceindia.com/legal/administration-of-justice

● www.scholarship.law.umn.edu/cgi/justice-administrationcontext=civil_articles

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