ADMINISTRATION OF JUSTICE SHOULD BE CLEAN AND PURE

HISTORICAL BACKGROUND

Administration of justice is one of the essential functions of the state. The law and order within the state is maintained through the administration of justice and citizens are made to realize the existence and the importance of the state. The administration of justice in reaching its present form passed through various stages. In the primitive society when wrong was done against an individual, he had to resort to self-help and it was based on private vengeance. Later on, when individuals organized themselves in the form of society, certain rights were recognized by the society as belonging to every individual. If a wrong was done against an individual, it was abhorred by the society and it made efforts to provide remedy to the individual wronged. The private individual revenge still remained the motive and the effective measure but it was now regulated by certain rules and took the form of combat. The right, wrong and punishment were decided by the physical strength of the parties. The party who proved to be stronger was considered to be right. In some ancient society, natural elements like fire, water, wind were considered as gods and approached for justice. For e.g., if a person came against whom there was any allegations were, could walk through fire and came out unhurt was considered to be innocent. Gradually, the society evolved and the state came into being. For the protection of the citizens, and for its own protection, it became necessary for the state to maintain law and order. This is the beginning of the administration of justice in the modern sense of the term.

The state defines the rights and duties of its citizens. It protects the rights and enforces the duties. If any violation of the rights of one individual is made by another, the latter is to redress it or he is punished. The state appoints persons to adjudicate the rights and duties to secure their protection and enforcement. In this way, courts came into being. Gradually, a well-organized judicial order developed in the society. In modern times, the judicial order is a very important organ of the government and it is called judiciary. It administers justice which is considered to be essential function of the state[1].

Meaning of administration of justice

Administration means management and justice means to right and fair treatment. By the administration of justice is meant the maintenance of right with in a political community by means of the physical force of the state. The term justice here does not mean justice in abstract sense as a moral virtue or ideal but it means justice according to law, or in other words, enforcement of rights as they are defined by law. Thus, to adjudicate the rights and duties of the individuals on the basis of the rule laid down by the state is administration of justice.

There are three ideas to define administration of justice

  • Political organized society
  • Physical force of the state and
  • Maintenance of right as the object

In other words, the administration of justice by state is a permanent necessity and a primary function of the state, the purpose for which it exists.

ACCORDING TO SALMOND.
“Maintenance of right within the political community by means of physical force of state”.

ACCORDING TO LORD BRYCE.
“There is no better test of excellence of a Government than the Efficiency of its judicial system[2]”.

ADVANTAGES OF ADMINISTRATION OF JUSTICE

  1. It brings Uniformity in the administration of justice.
  2. As the law is known to the citizens, it enables them to regulate their conduct in accordance with it.
  3. It helps the judges in applying the law uniformly which reduces the chances of discrimination.
  4. Fixed principles of law ensures impartiality and equality.
  5. The rules of law represent collective wisdom of the community.[3]

DISADVANTAGES OF ADMINISTRATION OF JUSTICE

  1. It makes law rigid. The same rules are applied to all the cases of similar nature and it sometimes, causes injustice.
  2. Legal Justice is full of technicalities and formalities.
  3. Law tends to become conservative. It does not keep pace with the changed conditions.
  4. The law becomes complex. It no longer remains easy to understand. Law loses certainty.

DIVISION OF ADMINISTRATION OF JUSTICE

Classification of Justice- It can be divided into two parts

a.Private Justice- This is considered to be the justice between individuals. Private Justice is a relationship between individuals. It is an end for which the court exists. Private persons are not allowed to take the law in their own hands. It reflects the ethical justice that ought to exist between the individuals.

b.Public Justice- Public Justice administered by the state through its own tribunals and courts. It regulates the relationship between the courts and individuals.Public Justice is the means by which courts fulfil that ends of Private Justice[4]

Administration of justice is divided into two parts:-

1.Civil

2.Criminal

Civil Justice and Criminal follow Public Justice and Private Justice respectively. Looking from a practical standpoint, important distinctions lie in the legal consequences of the two. Civil Justice and Criminal Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution or specific decree or other such civil reliefs. However, a Criminal Proceeding usually results in punishment. There are myriad number of punishments ranging from hanging to fine to probation. Therefore, Salmond said that‘the basic objective of a criminal proceeding is punishment and the usual goal of a civil proceeding is not punitive[5]’

ADMINISTRATION OFCIVIL JUSTICE

The rights enforced by civil proceedings are of two kinds: -

  1. Primary, and
  2. Sanctioning or remedial rights.

Primary rights- Primary rights are those which exist as such, they do not have their source in some wrong.

Sanctioning or remedial rights – Sanctioning or Remedial rights are those which came into being after the violation of a primary right.

Civil proceedings

Specific enforcement sanctional enforcement

(Primary right is enforced) (sanctioning right is enforced)

Compensation penalty

Restitution penal redress

Restitution – defendant returns back the benefit taken at the expense of the plaintiff.

Penal redress – the defendant pays to the plaintiff, the loss sufferedby the latter by the wrongful act of the former.

ADMINISTRATION OF CRIMINAL JUSTICE

The purpose of criminal justice is to punish the wrongdoer. He is punished by the state. Pursuit, apprehension, and punishment of an offender sub-serve a critical social need. Society cannot afford to allow a criminal to escape his liability to as a result of doing so would be social pollution. The offender has to be put on trial as it is a social need.[6] The first question that arises is as to what is the purpose of punishment or in other words, what is the end of the criminal justice? From very ancient times, a number of theories have been given declaring the purpose of the punishment.

THEORIES OF PUNISHMENT

  1. PREVENTIVE THEORY - This theory believes that the object of punishment is to prevent or disable the wrongdoer from committing the crime again. Deterrent theory aims at giving a warning to the society at large whereas under Preventive Theory, the main aim is to disable the wrongdoer from repeating the criminal activity by disabling his physical power to commit crime.
  1. DETERRENT THEORY -The term “Deter” means to abstain from doing an act. The main purpose of this theory is to deter (prevent) the criminals from doing the crime or repeating the same crime in future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in future and it would also be a lesson to the other members of the society, as to what can be the consequences of committing a crime. This theory has proved effective, even though it has certain defects. The object of punishment is not only to prevent the wrongdoer from committing the crime again but also to make him an example in front of the other such persons who have similar criminal tendencies.
  1. REFORMATIVE THEORY - According to Reformative theory, the object is of punishment is the reformation of criminals. This theory seeks to bring about a change in the attitude of offender so as to rehabilitate him as a law abiding member of society. Even if an offender commits a crime under certain circumstances, he does not cease to be a human being. The circumstances under which he committed the crime may not occur again. Crime is a mental disease, caused by different anti-social elements. Therefore, the mental cure of criminals rather than awarding punishment will serve the purpose. If the criminals are educated and trained, they will be competent to behave well in the society.
    The object of the punishment should be reform the offender. The criminal must be educated and taught some art or craft or industry during his term of imprisonment,so that they may be able to lead a good life and become a responsible and respectable citizen after release from jail. While awarding punishment judge should study the character and age of the offender, his early breeding, family background, his education and environment, the circumstances under which he or she committed the crime, the motive which prompted him or her indulge in criminal activities, etc. The object of doing so is to acquaint the judge with the circumstances under which the offence was committed so that he could award punishment that could be serve the ends of justice.This theory believes that Punishment should exist to reform the criminal. Even if an offender commits a crime, he does not cease to be a human being. He might have committed the crime under circumstances which might never occur again. The main object of Punishment under Reformative theory is to bring about a moral reform in the offender.
  1. RETRIBUTIVE THEORY- 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. Punishment of the offender provides some kind solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. The only reason for keeping the offender in prison under unpleasant circumstances would be the vengeful pleasure of sufferer and his family. J.M. Finnis argues in favor of retributism by mentioning it as a balance of fairness in the distribution of advantages and disadvantages by restraining his will. Retributivists believe that considerations under social protection may serve a minimal purpose of the punishment. Traditional retributism relied on punishing the intrinsic value of the offence and thus resort to very harsh methods. This theory is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories involve the exercise of control over the emotional instinctual forces that condition such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts.In primitive societies, the punishment was mostly retributive in nature and the person wronged was allowed to have his revenge against the wrongdoer. The principle was “an eye for an eye”.
  1. EXPIATORY THEORY –This theory is linked with the retributive theory and is, sometimes, considered to be a part of it. It says that by undergoing punishment, the crime is expiated. This has been the view of ancient Hindu law givers. Manu says: “Men who are guilty when condemned by the king become and go to heaven in the same way as good and virtuous men go”. There are a number of Puranic stories in which persons underwent voluntary or self-imposed punishment if any wrong was done by them so that wrong might be expiated. Hegel says that punishment makes the criminal to expiate for the wrong done. This theory is based on morals and as a purpose of punishment it has little value[7].

ADMINISTRATION OF JUSTICE SHOULD BE CLEAN AND PURE

Administration of justice whenlinked with professional ethics has to be dealt with many aspects. We see in our society, people, for seeking justice rely upon judiciary. Thejudiciaryis the system ofcourtsthat interprets and applies thelawin the name of thestate. The judiciary also provides a mechanism for theresolution of disputes and helps citizens to seek justice. Justice is a birth right given to every individual. Concept of justice follows rule of law. The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. The Constitution of India intended, to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution. Although there is a separation of power in India but judiciary is that branch of government which enjoys independence from interference of other organs of government. It is important because each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice; to do justice. It is vital in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.It is not enough for the judiciary, as an institution, to be independent - individual judges must be seen to be objective and impartial. In their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold. They must treat lawyers, clients and witnesses with respect and must refrain from comments that suggest they have made up their minds in advance. Outside the courtroom, judges do not socialize or associate with lawyers or other persons connected with thecases they hear, or they may be accused of favoritism. Judges typically declare a conflict and withdraw from a case that involves relatives or friends. The same is true if the case involves a former client, a member of the judge's former law firm, law partners or a former business associate, at least until a year or two has passed since the judge was appointed and those ties were severed.

Judges often choose to avoid most forms of community involvement. A judge may undertake community or charitable work but cannot offer legal or investment advice. Judges cannot take part in politics, either as a party member, fundraiser or donor, and many choose to relinquish their right to vote. While judges have been more willing in recent years to make public speeches or agree to media interviews, they refrain from expressing opinions on legal issues that could come before them in a future case. Judges are forbidden from being paid to do anything other than their judicial duties, but can accept appointments to serve on royal commissions, inquiries and other official investigations.

Whenever a layman faces a legal problem, he tries to find a reliable and efficient lawyer who can solve his case and provide him effective remedies on payment of an affordable fee. But the faith of the general public in professional advocates and lawyers is quite bleak.

Soli J. Sorabjee states his views on this point in ‘Lawyers as Professionals’. He states that they are seen as fortune seekers rather than seeking to serve, a selfish class, who, on account of the special knowledge and expertise, provide services on such terms as they please. What are the reasons for this said decline? The main reason is that lawyers, as other professionals, have forgotten what is entailed in a profession and their proper role in society.

Lawyers belong to an independent profession, they are not subordinate to the Government or to anyone else and they are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to medical problems or engineers who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a whole. It is clear that an independent judiciary is a must for the sustenance of democracy. If the Independent Judiciary is the pillar of the democracy, the Bar is the foundation of the Independent Judiciary. The Bar is the Mother of the Bench and the bright mirror of the Judicial Officers, whose image, character and conduct is correctly and vividly reflected therein. Whenever there has been a need for a change or development in the society, the society has looked up to the Advocates.

CONCLUSION

The legal profession is different from other professions. In this what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society. It is to be noted that when people suffer from medical problems, they only have to endure and suffer, whereas when people are meted out with injustice, it is intolerable and they pull down the whole structure. As such the administration of justice is one of the most essential functions of the democratic state. Men desire justice and it is the function of legal practitioners to plead for justice. Lawyer is considered as the guardian who can secure justice and liberty. Lawyers and Courts are the last refuge for the helpless and the harassed litigant. Therefore, it is required for administration of justice should be clean and pure.