ADMINISTRATION OF JUSTICE

The two most important functions of state are (1) war (2) administration of justice

If a state is incapable of performing these functions, it can’t be called a state. Administration of justice
implies the maintenance of peace and order within a political community by means of physical force of
the state .There are also other factors such as sanction, public opinion ,custom etc. which helps in
administration of justice

According to Salmond it is through the instrumentality of law that justice is administered. According to
him “law is the body of principles recognized and applied by the state in administration of Justice.

CONCEPT OF JUSTICE –the concept of justice is as old as the origin and growth of the society itself. The
social nature of man demands that he must live peacefully in society. while living so ,he experiences a
conflict of interests and expects rightful conduct on the part of others and it is through law only that it
can be controlled.

Advantages

The courts administer justice according to laws framed by the legislature. The chief merit of
administration of justice is uniformity ,certainly, impartiality and equality.

Disadvantages: Its rigidity ,formality completion.

TYPES OF JUSTICE – CIVIL AND CRIMINAL –Former are violations of civil or legal right of individuals called
civil injuries and while the latter are in nature of violation of public rights and duties which effect
community as a whole and are called crime. Thus crime is a wrong against the whole community and is
punishable by state. The civil wrong on the other hand is an infringement of legal right of a particular
individual and is redressible generally by monetary compensation.

PURPOSE OF CRIMINAL JUSTICE AND THEORIES OF PUNISHMENT

The purpose of criminal justice in to punish the wrong does the punished by state.

(1) Retributive theory : This theory was supported by Salmond .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 maxim “ an eye for an eye and tooth for a tooth “or tit for tat.

The theory therefore emphasizes that the pain to be inflicted by way of punishment must outweigh the
pleasure derived by him for his criminal act. Kant, Homes , Salmond supported this theory saying that
by taking revenge humans get satisfied.

Criticism : This theory becomes totally impractical and useless in today’s era .Because this theory does
not emphasize on the reformation of the victim . The theory completely ignores the circumstances of
the criminal and whether the offender is young and first offender or women or insane etc. Because of
these things this theory has lost its relevance.

(2) Deterrent theory: Supporter of this theory-Paton, Manu, Bentham

According to this theory ,the main object of punishment is to make commission of an offence an ill
bargain for the offender and deter others from committing crimes.

Salmond said “Punishment is before all things deterrent ad 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”. According to this theory
punishment is a means of attaining social security as it seeks to protect the society by deterring
potential offenders.

CRITICISM: The critics said that this theory becomes ineffective in restricting crimes because the theory
doesn’t give chance to the offender to reform itself. It was said that during the reign of Queen Elizabeth
who was a staunch supporter of this theory . and who awarded severe punishment for pick pocketing
etc., offences were rampant and pickpockets were busy in doing crime during the execution of
condemned pickpocket .

(3) PREVENTIVE THEORY :-This theory is founded on the idea of preventing repetition of crime by
disabling the offender thought measures such as imprisonment, forfeiture, death
punishment ,suspension of licenses etc . This theory doesn’t lay much emphasis on the motive of wrong
doer but seeks to take away his physical power to commit the offence. The theory was supported by
Salmond and Homes .Salmond supported his view by saying that to kill snakes in the society” if they will
be left alive they will bite one day or the other “.In the same way an offender should be disabled so that
he cannot repeat the offence.

Criticism : This theory was criticized as when an offender comes out of jail after completing his
imprisonment he becomes a habitual offender and at that time he has no fear in his mind about
punishment. The fear of punishment stops and he becomes habitual offender.

(4) Reformative theory : This theory emphasizes on reformation of offenders through method of
individualization. This theory treats the offenders as patient. As by medicine a patient can become
healthy in the same fashion by scientific, social and psychological changes the offender can by
reformed. The theory supports the view of Mahatama Gandhi (Hate the sin and not the sinner).The
theory is based on humanistic principle that even if the offender commits a crime he doesn’t cease to
be a human being. Therefore an effort should be made to reform him during the period of incarceration.
While awarding punishment the judge must take into consideration the age ,character, antecedents of
the offender

Types of Reformation

Probation implies postponement of final sentence of convicted offender for a certain time so as to
enable him to have an opportunity to correct his conduct and readjust himself in community

Parole ; Parole is the release of condemned prisoner form a penal institution after he has served a part
of his sentence 1/3rd in prison custody and on condition that he shall return to the prison to undergo
the unexpired sentence in the event of misbehavior.
Criticism : This theory is more effective. This theory changes the heart of the offender and helps in self
realization .This theory helps young and first time offenders. This theory gives training to people so that
after release from jail they can do their own business.

Salmond criticized (1) He said this theory makes commission of offence a profitable business (2)
criminal behavior offender don’t get reformed by this theory

Conclusion- (which theory of punishment is suitable for India , No single theory can help in eliminating
crimes and criminals from society. It is only through an effective combination of two or more theories
that an ideal penal program can be formulated.