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Administration of Justice

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2 views

Administration of Justice

Uploaded by

ananyasrivastwa
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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ADMINISTRATION OF

JUSTICE
THE LEVIATHAN
• A herd of wolves is quieter and more at one than many men unless they have one
reason or power over them;
• Men do not have one reason in them and they are moved by their own interest and
passion;
• A common power is needed to keep them all in awe without which civilization is
unattainable, injustice is unchecked and triumphant and life of men is short, brutish,
nasty, solitary and poor;
• Howsoever orderly a society may have become, an element of force is omnipresent;
• A society in which the power of the state is never called into actual exercise marks, not
the disappearance of Governmental control , but the final triumph and supremacy of it;
• Force as an instrument for coercion of mankind is merely a temporary and a provisional
incident in the development of perfect civilization;
• To a large extent, force of a state has become latent in the administration of justice. The
state now merely declares the rights and duties of its subject. Example – an increasing
popularity for the action of declaration, which seeks no relief other than the declaration
of law, and rights and liabilities of the parties. Example – increasing use of arbitration,
mediation, negotiation etc. contra – execution of decree by the civil court.
FORCE IN THE ADMINISTRATION OF JUSTICE

• Without institutionalized law enforcement, men tend to redress the wrong by his own
hand;
• A more civilized substitute for such primitive practices is provided by the modern
system of administration of justice;
• Public Opinion is an indispensable support for the enforcement of law;
• A system of law solely based on coercion would be too insecure to provide stability
and permanence;
• A system of law entirely based on popular opinion may be devoid of righteousness;
 Illustration – trying a person under terror charges, declaring an individual as a
terrorist, a Maoists killing police personnel in a dense forest where there is hardly any
recourse to law;
• Force is nevertheless necessary to coerce the recalcitrant minority and prevent them
from gaining an unfair advantage over the law-abiding majority;
FORCE IN ADMINISTRATION OF JUSTICE

• In primitive society, every man was in his own case, charged


with the execution of law and a judge of his own cause;
• The evils of violent self-help were sufficient to escape
recognition;
• The turbulent nature otef society did not readily abandon the
liberty of self-help;
• With the gradual development of state, the government
ventured to suppress the anachronistic system of self redressal
to lay down the peremptory principle that all quarrels shall be
brought for settlement to the courts of law;
CIVIL AND CRIMINAL JUSTICE
 Public wrong – wrong against entire community
 Private wrong – privation of civil rights of an individual
 The distinction between the two is always not clear – evasion of taxes is treated as an offence against the state,
however, it is recovered at the suit of a state
 Maintenance Proceedings under the Cr.PC is treated as a civil proceedings
 Breach of peace involving dispute with regard to immovable property;
 Hathisingh v. Union of India 1960 SCR (3) 528 – Section 25FFF(1) of the Industrial Disputes Act 1947 was outlawed – held it does not
violate Art 20(1) of the constitution as the obligation to pay compensation to workers to close down an industry is civil in nature;
 Polluters Pay Principle under environmental law jurisprudence
 CPC contains penal measures – Order 38, imprisoning husband for refusal to comply with the decree of ROCR Order 21 etc - Jolly George
Verghese & Anr vs The Bank Of Cochin1980 SCR (2) 913
 Cartel issue under competition law
 Judgment of a criminal court may require restitution of property derived from an offence;
 Criminalization of Talaq-e-Biddat
 Criminalization of Misleading Advertisement under CPA 2019 (Sec 89)
PURPOSE OF CRIMINAL JUSTICE: PUNISHMENT
 What is Punishment?

It is deprivation of liberty or property at the direction of a competent court after the guilt of the person
has been established;
• Punishment protects society by reducing the occurrence of crime
• It creates a deterrent effect;
 Motive of Crime

• Crimes are committed by reason of a conflict of interest of criminal with the society;
 Punishment destroys those conflict of interest by making offence an ill bargain;
 Punishment seeks to disable the offenders – death penalty is considered the most potent instrument
of disablement;
 Deterrence acts on the motive of the offenders whereas reformation tends to bring about a change
in the offender’s character in order to reclaim him as the useful member of the society;
 Policy tilt towards reformation – increasing use of parole, remission, probation are evidence of the
reformative trend;
CONFLICT AMONG THEORIES OF PUNISHMENT
• Reformative theory approves punishment which are subservient for the treatment of the
offenders and completely rejects the deterrent and retributive aspect of punishment;
• The due process jurisprudence also tilt towards reformative theory;
• Machhi Singh v. State of Punjab 1983 SCR (3) 413
• Sunil Batra v. Delhi Administration 1980 SCR (2) 557
• V. Sreeharan @ Murugan v. Union of India 2014 SC – Inordinate delay in execution of capital
punishment may be commuted
• Eight amendment of US Constitution – “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted”.
• Rajesh Kumar v. State through Govt of NCT Delhi (2011) 13 SCC 706 – Eight amendment has been
incorporated under Art 21;
• Nikesh Tarachand Shah v. Union of India 2017 SC
• Debate about cruel and unusual punishment – Mutilation, canning, encounter killing, shooting squads etc

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