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Rashmi Mishra, pursuing LL.B.(3 Years), from Lloyd Law College, Noida.

Date: 27.09.2020



The origin & growth of administration of justice is identical with the origin & growth of man. Man is considered to be a social animal. Hence, by the virtue of being a human, it is demanded that we must live in a society. Therefore, while living in a society, every man must have experienced a conflict of interests which created the necessity for providing for the administration of justice. Administration of Justice is considered to be the firmest pillar of government. The most essential functions of a State include Administration of Justice. It has been observed by a great Jurist that a nation’s rank can easily be determined by the justice it provides in terms of law in its judicial administration. Law have been defined in terms of Justice by many great Jurists.

In the words of Salmond “Law may be defined as the body of principles recognised and applied by the State in the Administration of Justice.”

In the words of Roscoe Pound “Law is the body of Principles recognised or enforced by public & regular tribunals in the administration of Justice.”


To begin with, every individual had to help himself to punish the wrongdoer. Personal vengeance was allowed. He avenged himself upon his enemies by his own hand, probably supported by the hands of his friends and kinsmen where necessary. At that stage, every man carried his life in his hands. He was liable to be attacked at any time and he could resist by overpowering his opponent. In that era, every person was a judge of his own cause & might was the sole measure of right. Very often crimes were increased as one crime led to another. There were family conflicts, group conflicts & tribunal conflicts. One thing that was most common in every conflict was Blood feuds. As the blood feuds became disastrous, the primitive societies provided for the payment of some money or its equivalent as a compensation to the victim. Eventually, the system of compensation was developed. 

 Subsequently, the next stage of administration of justice started with the rise of political States. But the States were not strong enough to regulate crimes or could inflict punishment on the criminals. The law of private vengeance & violent self-help was continuing to prevail. The State enforced the concept of ‘an eye for an eye’, ‘a tooth for a tooth’ & ‘a life for a life’. The main idea behind the concept was that a life shall not be taken for a tooth or an eye in the light of administration of justice. With the growth of the power of the State, the State began to act as a judge to access liability & impose penalty. State was no longer a regulator of private vengeance.


Legal Justice represents the collective wisdom of the community & that is always preferred to the wisdom of one individual. Legal Justice aims at ensuring the uniformity and certainty for the administration of justice. There is no scope of any arbitrary action as everyone knows what the law is. Even the judges have to act in accordance with the law & pronounce judgments in its conformity. Legal Justice also provides impartiality in the administration of Justice as the judges cannot go beyond the letters of law. It has been rightly said that ‘The wisdom of law is wiser than any man’s wisdom’.

There are certain disadvantages of legal justice as it is rigid & complex in nature. Legal principles have already been laid down in precedents which may result in hardship & injustice in certain cases. Society is constantly changing; therefore, old principles may not do proper justice as the society has changes but the law is rigid in nature.

In modern times, the justice that is given by the courts is not what can really be called justice. The justice is done merely according to law. The only function of Judges is to administer the law of the country.


Public justice & private justice are considered to be the most important tools of administration of justice. Public justice is that which administered by the State through its own tribunals while private justice takes place between individuals. Public Justice is a relation between the courts on the hand & individuals on the other. Private justice is a relation between individuals only. It can be concluded that private justice is the end for which the courts exists & public justice is the instrument or means by which courts fulfil that end.


Crime is considered to be an act which is harmful to society in general. For instance, murder injures primarily the particular victim but its disregard of human life does not allow the same to be a matter between and the family of the murdered. Those who commit such acts are proceeded against by the State & they are punished if convicted. Civil wrongs such as a breach of Contract or trespass to land are deemed to infringe only the rights of the individual wronged and not the society in general. The law provides with an option to the victim either to sue for compensation or for punishment in the courts i.e. either to initiate in criminal law or in civil law as per his convenience. A rough distinction between criminal & civil wrongs could be that crimes are public wrongs while civil wrongs are private wrongs. Criminal justice mainly attempts at punishment and civil justice attempts at remedy. The distinction between the two is more in the legal consequences of the proceedings & not in the intrinsic nature of the acts.


As purpose of the criminal justice is to punish the wrongdoer. There have been number of theories concerning the purpose of punishment. These theories may be classified into two classes: Deterrent Theory & Preventive Theory.

  • Deterrent Theory: According to the definition given in Merriam Webster, the word ‘deterrent’ means serving to discourage, prevent, or inhibit i.e. the object of deterrent theory of punishment is not only limited to prevent the wrongdoer from doing a wrong for the second time, it aims to set an example for other persons who possess criminal tendencies. Jurists considers the deterrent theory to be the most important one as the aim of punishment is not revenge but to create terror and set an example for others. An exemplary punishment is given to the criminal so that the others can learn a lesson from him and be afraid of committing such acts. This theory of punishment has been criticised a lot in modern times. It is contended that deterrent theory has proved ineffective in checking crime. Excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishments. The purpose of the deterrent theory is to set a lesson on to others and show that crime does not pay.
  • Preventive Theory: Another object of punishment is to prevent or disable the wrongdoer. The preventive theory of punishment aims at disabling the offenders from repeating the offences by the punishments such as imprisonment, death, forfeiture of office etc. When the offender is put in prison or jail, it is to prevent the offender from committing any other crime. Prevention is considered to be the only universal purpose of punishment. An example of preventive punishment is the cancellation of the driving licence of a person, as he has no licence he is prevented from driving. In case of Preventive theory of punishment, the main objective of punishment is to disable the wrongdoer from repeating the crime. This theory does not act so much on the motive of the wrongdoer but disable his physical power to commit the offence.
  • Reformative Theory: According to this theory, the object of punishment should be the reform of the criminal. Even though a person commits a crime, he does not cease to be a human being. He might be in such circumstances which might never occur again or even if the circumstances occur again, he may have realised his mistake and could handle the circumstances in a better way. The purpose of punishment should aim at bringing the moral reform of the wrongdoer. The person should be imparted education or taught some art or any other skill during the tenure of his imprisonment to make him capable of starting a new life. The supporters of this theory of punishment contend that by a sympathetic, tactful and loving treatment of the offender, a drastic change may be brought about in their characters. It has rightly been said that ‘Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate, only love can do that’ In the same way wrong cannot drive out wrong, only right can do that i.e. even the cruel hardened prisoners can be reformed. They can be turned into helpful friends by good words and loving treatment. It has been quoted several times that the primary and essential end of criminal justice is deterrence and not reformation. Supreme Court observed in Rattan Lal v. State of Punjab[1] that the Probation of Offenders Act is a milestone in the progress of the modern liberal trend to reform in the field of penology. In Musa Khan v. State of Maharashtra[2], the Supreme Court observed that this act is a piece of social legislation which is meant to reform juvenile offenders with the view to prevent them from becoming hardened criminals by providing an educated and informative treatment to them by the government.
  • Retributive Theory: The retributive theory of punishment can be seen since the primitive society. The person wronged was allowed to have his revenge by inflicting same wrong against the wrongdoer. The principle which was recognised in primitive society was wholly retributive in nature as the concept of “an eye for an eye”, “a tooth for a tooth” used to be followed. Justice Holmes writes: “It is commonly known that the early forms of legal procedure were grounded in vengeance.” Critics point out that punishment in itself is not a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself is a wrong/evil but is justified only if it yields to better results.
  • Theory of Compensation: According to the theory of compensation, the object of punishment should not be limited to prevent further crimes but it must compensate the victim of the crime as well. In certain cases, the Supreme Court has awarded compensation to persons who has suffered at the hands of government servants. In the case of Bhim Singh v. State of Jammu and Kashmir[3], Bhim Singh was a member of legislative assembly. He was arrested while on his way to attend a meeting of the assembly. He was being deprived of his constitutional right to attend the assembly session. Therefore, the supreme court awarded a sum of Rs. 50,000 as compensation to him.

It can be concluded that a perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and good points of all theories must be taken into consideration. The offender is not merely a criminal to be punished, he is also patient to be treated. The punishment given to the offender should be in direct relation to the gravity of the crime. It shall be small for minor crimes and may be grave for major crimes. The first offender should be leniently treated & special treatment is given to juvenile offenders. The main and the foremost object of this concession aims at convincing the offender that normal and free life is better than life in the prison.

Kinds of Punishment:

  • Capital Punishment: In the history of punishment, capital punishment has always occupied a very important place. In ancient times & even in the middle ages, sentencing of offenders to death was a common kind of punishment. Even for what might be considered as minor offences in modern times, death penalty was imposed. The framers of the Indian Penal Code provided for capital punishment but the same was to be restored. The position of capital punishment did not change for more than hundred years but the trend in the direction of the abolition of capital punishment in many countries affected legislative as well as judicial thinking in India. The legislative thinking is reflected in some subtle changes in the Code of criminal procedure during the last two decades or so. Under the new code of criminal procedure, 1973, the court has to record reasons for awarding death sentence. It is clear that the provisions regarding death sentence have gradually being liberalized in favour of guilty persons. The recent trend in India is clearly towards the abolition of death sentence as observed in the case of Ediga Anamma v. State of Andhra Pradesh[4] by the Supreme Court of India. In Raghubir Singh v. State of Haryana, even the supreme court accepted the contention that the murder was treacherous, death sentence was reduced to life imprisonment. In Rajendra Prasad v. State of Uttar Pradesh[5], the appellant was sentenced to life imprisonment in the previous case but was released on Gandhi Jayanti Day. He again committed murder and was sentenced to death by the sessions judge and his death sentence was confirmed by the High Court. However, the same was converted into Life imprisonment by the Supreme Court. In Bacchan Singh v. State of Punjab[6], the Supreme Court held by a majority of 4:1 that the provision of death sentence as an alternative punishment for murder in Section 302 of the Indian Penal Code is not unreasonable and is in the public interest. Section 302 violates neither the letter nor the ethos of Article 19 of the Constitution. The provision of death sentence as an alternative punishment for murder does not violate Article 21 of the Constitution. To commit a crime is not an activity guaranteed by Article 19(1) of the Constitution. Justice Bhagwati put more emphasis on life imprisonment instead of death sentence. The Hon’ble Judge pointed out that the international trend was towards the abolition of death penalty and a large number of countries has abolished death penalty de jure or de facto. As on 30th May, 1979, the following countries had abolished death penalty for all offences: Australia, Brazil, Colombia, Denmark, Federal Republic of Germany, Finland, Norway, Sweden, Portugal etc. Canada, Italy, Spain, Switzerland, the Netherlands, Peru and Malta had abolished death penalty in time of peace but retain it for specific offence is committed in time of war. The objective of the United Nations is that capital punishment should ultimately be abolished in all countries. Justice Bhagwati has put emphasis on barbarity and cruelty involved in death sentence. Death penalty is irrevocable. It cannot be recalled. It extinguishes the flame of life forever. It is destructive of the right to life which is the most precious of all right, without which, enjoyment of no other right is possible. If a person is sentenced to imprisonment, even if it be for life, and subsequently it is found that he was innocent and was wrongly convicted, he can be set free. However, that is not possible where a person has been wrongly convicted and sentenced to death. Retaliation can have no place in a civilized society and particularly in the land of Buddha and Gandhi. The Law commission of India in its 35th report has given reasons for the view that capital punishment has a deterrent effect. Basically, every human being dreds death.
  • Deportation: Another way of punishment is the deportation of incorrigible or dangerous offenders. This method used to be called transportation in India. However, this is not a solution to the problem if a person is dangerous in one society and if he is let loose in another society, he is likely to be equally dangerous there also.
  • Corporal Punishment: Another form of punishment is corporal punishment. This punishment includes modulation, logging (or whipping) and torture previously this was a very common form of punishment. The main object of this kind of punishment is deterrence. However, criticisers of corporal punishment point out that this kind of punishment is not only against humanity but also ineffective. The person who undergo this kind of punishment may become more antisocial than he was before. Whipping was one of the forms of punishment originally provided for in the Indian Penal Code but the same was abolished in 1955.
  • Imprisonment: Another form of punishment is imprisonment. If properly administered, imprisonment can serve all the three objectives of punishment. It may be deterrent because it makes an example of the offender to others. It may be preventive because it disables the offender at least for some time, from repeating the offence. If properly used it might give opportunities for reforming the character of the accused. The Supreme Court of India has pointed out the dangers of long-term imprisonment in a number of cases and has reduced the period of incarceration in appropriate cases. Sometimes the accused was sentenced to both life imprisonment and fine and sometimes fine only the only view is that fine should not be used to give opportunity to persons to avoid the punishment of imprisonment.
  • Solitary Confinement: Another kind of punishment is solitary confinement which is an aggravated kind of punishment. Solitary confinement exploits fully the sociable nature of man. By denying him the society of his fellow beings, it seeks to inflict pain on him. It has been said that this kind of punishment is in human and perverse. There is every possibility of a man of sound mental health being turned into a lunatic, if used in excess, it may inflict permanent harm on the offender.
  • Indeterminate sentence: Another kind of imprisonment is indeterminate sentence in this case, the accused is not sentenced to imprisonment for any fixed period. The period is left indeterminate at the time of award when the accused shows improvement, a sentence may be terminated.


There are two types of right that are available in case of Civil Suits in the light of Administration of Justice i.e. Primary rights & Sanctioning Rights. The former rights are those rights which exist as such while the latter rights are those rights which come into being after the violation of a primary right. The primary rights are those rights which arises out of a conduct or as a jus in rem while a sanctioning right is the one which arises out of the violation of any other right. For instance, if A enters into a valid contract, his right to have the contract performed is a primary right. If the contract is not completed or breached, his right to damages for the loss caused to him is considered to be a sanctioning right.


The primary function of a court of law is the administration of justice. It has to enforce rights and punish wrong. In every case, there are two parties: the plaintiff and defendant; or the prosecutor and the accused. There is no culprit in the eyes of law per se. The person on whom allegations are made are termed as defendant & accused which has also been done in the light of justice. Justice is such a broad concept that can never be completed in itself. In a state, the court of law is the main executor of administration of justice, but their hands are also tied in the knots of law i.e. their power is also limited to the letters of law which has its own pros & cons as discussed above. Hence, it can be said that administration of justice is the primary function of State & a State must ensure that justice is being delivered timely as it has rightly been said ‘justice delayed equals to justice denied.’

[1] AIR 1965 SC 444

[2] AIR 1976 SC 2566

[3] 1986 Cri LJ 192.

[4] (1974) 4 SCC 443.

[5] (1975) 3 SCC 37

[6] (1979) 3 SCC 646

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