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Administration of justice

Module III

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Topics of discussion
Meaning
Necessity

History
Advantages and
disadvantages
Classification

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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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Necessity of Administration of Justice

Sound
administrati Realization The most
on of of Justice as For essential
justice is a defined by preservation function of
need of Law in its of rights and the state is
humanity judicial prevention to
since the administrati of injustice administer
inception of on justice
civilization

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Primitive
State

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

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History : Stage I
• 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 was the slogan of the day”.

• 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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History : Stage II
• 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
punishment on the criminals. 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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History : Stage III
• With the growth of the power of the state the
state began to act as a judge to access liability
and impose penalty.
• The civil law and 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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advantages
• 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 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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DIVISION OF ADMINSTARTION OF
JUSTICE
• The Administration of Justice is divided into
two parts-

• (1) Civil

• (2) Criminal

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


The liability is civil or criminal
who commits or threatens to
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
of certain It is
normally consequence
recognized of an offence
rights.

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

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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 criminal is punished.
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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 Kerala224under 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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