SUBJECT: ADVANCED JURISPRUDENCE
WRITE-UP PROJECT ON:
ADMINISTRATION OF JUSTICE
Presented By:
Name - Abhinav Anand,
Course - LLM Part I,
University Registration No. - L03-1121-0007-16,
College Roll No. – 04,
College - Jogesh Chandra Chaudhuri Law College, Kolkata, 700033,
Session – 2021-22
List of Abbreviations Used
AIR
All India Reporter
Art.
Article
CLA
Central Law Agency
CLRA
Columbia Law Review Association
DOI
Digital Object Identifier
EBC
Eastern Book Company
ed.
Edited
edn.
Edition Number
IJIR
Imperial Journal of Interdisciplinary Research
Inc.
Incorporation
NAR
North American Review
OUP
Oxford University Press
SC
Supreme Court
Vol.
Volume Number
2|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
Table of Cases
Sl. No.
Name of the Cases
1.
D.K. Basu v. State of West Bengal, AIR 1997 SC 610
2.
Hussainara Khatoon and others v. Home Secretary State of Bihar, AIR 1979 SC 1360
3.
Joginder Kumar v. State of UP and Others, 1994 SCC 260
4.
Motiram and others v. State of M.P., AIR 1978 SC 1594
5.
Nilabati Behera v. State of Orissa, 1993 SCC 746
6.
Vishaka v. State of Rajasthan (1997) 6 SCC 241
3|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
TABLE OF CONTENTS
Sl. No.
Topic
Page Number
1.
Abstract
5
2.
Introduction
5
3.
Administration of Justice
6
4.
The Justice System and the Administration of Justice
7
5.
Why is Justice Important
8
6.
Necessity of Administration of Justice
9
7.
Conception and Development of Administration of Justice
10
8.
Perception of Justice according to Law
11
9
Civil and Criminal Justice
12
9.1.
Purpose of Criminal Justice
13
9.1.1.
Theories of Punishment
13
9.2.
Civil Justice
17
10.
The Role of Judiciary in Administration of Justice
18
11.
Suggestions
20
12.
Conclusion
21
13.
Bibliography
22
4|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
1. ABSTRACT
Until very recently concern over the administration of justice was not strongly marked
in the community. Those concerned with the law at close quarters knew that it was a
conservative profession, that the procedure of relying on an overworked Lord
Chancellor and an understaffed Law Revision Committee for the production of reforms
was unsatisfactory, and that the political parties were unlikely to be attracted to making
legal reforms of little general interest to the electorate. Amongst the general public
there was some concern over the high cost of civil law procedure, but on the more
fundamental matter of the rights of a citizen when facing charges which might lead to
the loss of his liberty or life there was a feeling, perhaps a little smug, that English
justice was a model for the world. The better-informed members of the public, however,
were becoming conscious of the risk of some loss in independence of the Judiciary in
face of the expanding authority of the Executive. In theory the Judiciary is subservient
to Parliament and, hence, in modern times to the Executive; in practice the Judiciary
has for long been characterized by an impartiality which is the main reason for the high
respect in which it is held1.
Keywords: Supreme Court, Administration of Justice, Judicial System
2. INTRODUCTION
Administration of justice is a subject of high social and political importance, linked to
the broader field of public administration. A well-administered justice system is a
civilizing influence and contributes to social cohesion and to the country’s social and
economic development. In addition, such a system can foster social relations based on
1
N.H. Brasher, Problems in the Administration of Justice. In: Studies in British Government 117
(Palgrave Macmillan, London, 1965) available at: https://doi.org/10.1007/978-1-349-81747-4_9 (last
visited on May 14, 2022).
5|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
ethical and moral values and principles, which include respect for the laws and norms
governing social and commercial relationships and recognition of the rights of social
groups and individuals. Although important, this issue has not received proper attention
from the institutions that study public administration.
The present situation indicates that administration of justice faces greater challenges
than other topics that are already well-established in the literature, but it also offers
numerous research opportunities. The purpose of this write-up is to discuss the concept
of administration of justice as a research field and set out an agenda for future studies
that could promote the production of scientific knowledge in this area.
India, being one of the greatest nations in the world with an astounding populace has
an exceptionally solid administration of justice framework which is inborn with the
structure of the courts and its order and the legal framework. This framework gives job
to tremendous number of professionals connected with the arrangement of legal in
various structures and consequently serve the country with the administration.
3. ADMINISTRATION OF JUSTICE
There are two basic elements of each State2:
1. War
2. Administration of Justice
Scholars have said that that if a state is not equipped for playing out the previously
mentioned capacities, it is not a state. Salmond said that the Administration of Justice
2
Amit Singh,” Administration of Justice” Legal Service India, 2021, available at:
https://www.legalserviceindia.com/legal/article-856-administration-of-justice.html (last visited on May
14, 2022).
6|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
infers upkeep of rights inside a political group by methods for the physical power of the
state.
Once the requirement for Administration of Justice was perceived, the State appeared.
At first, the supposed State was not sufficiently solid to control wrongdoing and give
discipline to the culprits. Amid that purpose of time, the law was one of Private
Vengeance3 and Self-Help4. In the following period of the advancement of
Administration of Justice, the State came into undeniable presence. With the
development in the energy of the express, the state started to act like a judge to survey
obligation and force punishment on the people. The idea of Public Enquiry and
Punishment turned into a reality. Civil Justice and Criminal Justice5 take after from
Public Justice and Private Justice. Looking from a handy angle, critical refinements lie
in the lawful results of the two. Common Justice and Criminal Justice are controlled by
an alternate arrangement of courts. A Civil Proceeding for the most part brings about a
judgment for harms or order or compensation or particular declaration or other such
thoughtful reliefs. Be that as it may, a Criminal Proceeding for the most part brings
about discipline.
4. THE JUSTICE SYSTEM AND THE ADMINISTRATION OF
JUSTICE
Justice is an abstract concept studied in different areas of knowledge including
philosophy, law, economics and administration. It is not easy to define justice.
According to Kelsen (2000, p. 1), “no other question has been the object of so much
intensive thinking by the most illustrious thinkers from Plato to Kant; and yet, this
3
Charles T. Congdon, Vol. 139 Private Vengeance, 67-77 (The North American Review (NAR),
University of Northern Iowa, Jul., 1884). available at: https://www.jstor.org/stable/25118402 (last
visited on May 15, 2022).
4
Self-help, in the sense of a legal doctrine, refers to individuals' implementation of their rights without
resorting to legal writ or consultation of higher authority.
5
In Civil Law, the wrongdoer gets sued by the complainant or the aggrieved party and receives the
compensation. In Criminal Law, the accused person will be prosecuted in the court of law and is
awrded punishment.
7|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
question is today as unanswered as it ever was”6. The act of doing justice implies
making decisions on the freedom, and often on the life, of human beings. As Rawls
(1999, p. 3) expressed it, “Justice is the first virtue of social institutions [. . .] the basic
structure of society, the way in which the major social institutions distribute
fundamental rights and duties”7.
The justice system comprises of many organizations working in very different contexts,
according to their constitutional roles and objectives. The judicial branch is the central
subsystem, but the justice system also includes the Public Prosecutor’s Office, the
Public Defender’s Office and administrative courts, as well as advocacy, police and
prison organizations. In addition, other organizations contribute to the provision of
justice services, with specific responsibilities, such as notaries, consumer protection
organizations, professional associations and mediation and conciliation bodies. Most of
these organizations, especially the courts, police and prisons, are highly
institutionalized and legitimated in the sense that their existence and functioning are
taken for granted. For this reason, when analysing the justice system, the terms
institution and organization often overlap. 8
5. WHY IS JUSTICE IMPORTANT?
In the words of Prof. Sidgwick 9: “In determining a nation’s rank in political civilisation,
no test is more decisive than the degree in which justice as define by the law is actually
realised in its judicial administration.” Lord Bryce10 writes: “There is no better test of
the excellence of a government than the efficiency of its judicial system.”
Bruno Celano, “Kelsen's Concept of the Authority of Law” 19 Law and Philosophy 173–199 (2000),
available at: https://philpapers.org/rec/CELKCO (last visited on May 15, 2022).
7
John Rawls, A Theory of Justice (Harvard University Press, 1999), available at:
https://doi.org/10.2307/j.ctvkjb25m (last visited on May 15, 2022).
8
T.A. Guimaraes and A.O. Gomes, “Administration of justice: an emerging research field” 53 RAUSP
Management Journal 02 (2018), available at: https://www.researchgate.net/publication/325933158
_Administration_of_justice_an_emerging_research_field (last visited on May 15, 2022).
9
Henry Sidgwick (31 May 1838 – 28 August 1900) was an English utilitarian philosopher and
economist. He is best known in philosophy for his utilitarian treatise The Methods of Ethics.
10
James Bryce, (10 May 1838 – 22 January 1922) was a British academic, jurist, historian, and
Liberal politician.
6
8|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
George Washington said:
“Administration of Justice is the firmest pillar of good government. Law exists
to bind together the community. It is sovereign and cannot be violated with
impunity. 11”
According to Salmond: “Law may be defined as the body of principles recognised and
applied by the State in the administration of justice.”
Roscoe Pound observes: “Law is the body of principles recognised or enforced by
public and regular tribunals in the administration of justice.”
Blackstone12 wrote:
“Justice is not derived from the king as his free gift but he is the steward of the
public to dispense it to whom it is due. He is not the spring but the reservoir
from whence right and equity are conducted by a thousand channels to every
individual”
6. NECESSITY OF ADMINISTRATION OF JUSTICE
In the words of Jeremy Taylor 13 "A herd of wolves is quieter and more at one than so
many men, unless they all have one reason in them or have one power over them."
Spinoza14 writes: "Those who persuade themselves that a multitude of men can be
induced to live by the rule of reason are dreamers of dream and of the golden age of
poets." Hobbes15 says that “without a common power to keep them all in awe it is not
11
George Washington, II George Washington Papers, (Letterbooks, Manuscript/Mixed Material, 1754
to 1799), available at: https://www.loc.gov/item/mgw2.022/ (last visited on May 15, 2022).
12
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory
politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of
England.
13
Jeremy Taylor (1613–1667) was a cleric in the Church of England who achieved fame as an author
during the Protectorate of Oliver Cromwell.
14
Baruch (de) Spinoza (24 November 1632 – 21 February 1677) was a Dutch philosopher. One of the
foremost exponents of 17th-century Rationalism, he came to be considered "one of the most important
philosophers—and certainly the most radical—of the early modern period."
15
Thomas Hobbes (5/15 April 1588 – 4/14 December 1679) was an English philosopher, considered
to be one of the founders of modern political philosophy. Hobbes is best known for his 1651 book
“Leviathan”, in which he expounds an influential formulation of social contract theory.
9|P ag e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
possible for individuals to live in society. Within it, injustice is unchecked and
triumphant and the life of the people is solitary, poor, nasty, brutish and short”.
Salmond points out that men do not have one reason in them and each is moved by his
own interests and passions. The only alternative is one power over men. Man is by
nature a fighting animal and force is the ultima ratio of all mankind. Without a common
power to keep them all in awe, it is impossible for men to cohere in any but the most
primitive form of society. Without it, civilisation is unattainable. However orderly a
society may be, the element of force is always present and operative. It may become
latent but still exists16.
A society in which the power of the State is never called into actual exercise does not
mark the disappearance of the control of the government but its final triumph and
supremacy. It is suggested that force as an instrument for the coercion of mankind is
merely a temporary and provisional incident in the development of a perfect
civilisation.
7. CONCEPTION AND DEVELOPMENT OF ADMINISTRATION
OF JUSTICE
The social nature of man demands that he must live in society. While living so, man
must have experienced a conflict of interests and that created the necessity for providing
for 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. In those days, every man was a judge in
his own cause and might was the sole measure of right 17. Very often one crime led to
16
Sir John William Salmond, The First Principles of Jurisprudence (Stevens & Haynes, The
University of Michigan, 1893).
17
Khushboo Garg, “The Concept and Administration of Justice: Jurisprudence” Legal Readings
10 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
another. When feuds became disastrous, primitive societies provided for the payment
of some money or its equivalent as a compensation to the victim of the crime or the
relatives of the victim. The system of compensation was developed until a regular
sliding scale was fixed.
The second stage in the history of administration of justice started with the rise of
political States. However, those States were not strong enough to regulate crime and
inflict punishment on the criminals. The law of private vengeance and violent self-help
continued to prevail. The State merely regulated private vengeance and violent selfhelp.
The State also prescribed rules for the regulation of private vengeance. The State
enforced the concept of ‘‘a tooth for a tooth”, ‘‘an eye for eye 18’’ and “a life for a life”.
The State provided that a life shall not be taken for a tooth or a life for an eye.
With the growth of the power of the State, the State began to act as a judge to assess
liability and impose penalty. It substituted public enquiry and punishment for private
vengeance. The civil law and administration of Civil Justice helped the wronged and
became a substitute for the violent self-help of the primitive days. The modern
administration of justice is a natural corollary to the growth in power of political State
8. PERCEPTION OF JUSTICE ACCORDING TO LAW
In modern times, what is given by the courts to the people is not what can really be
called justice but merely justice according to law. Judges are not legislators and it is not
their duty to correct the defective provisions of law. Their only function is to administer
the law of the country. They are not expected to ignore the law of the country. It is
(November 22, 2020), available at: https://legalreadings.com/concept-administration-of-justice/ (last
visited on May 15, 2022).
18
"An eye for an eye" is a commandment found in the Book of Exodus 21:23–27 expressing the
principle of reciprocal justice measure for measure.
11 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
rightly said that ‘‘In the modern State, the administration of justice according to law is
commonly taken to imply recognition of fixed rules’ 19’.
A few illustrations may be given to show what we understand by justice according to
law. A creditor has to realise some money from a debtor. However, he files a suit after
the lapse of three years. Equity may be on his side, but his suit must fail on account of
the law of limitation which demands that a suit must be filed within three years. If law
is defective, it is the duty of the people to demand from their legislators to alter the
same. However, so long as a particular law is on the statute book, the same has to be
enforced unmindful of the consequences. Law may be blind and therefore justice
becomes blind, but there is no help for it. Judges are expected to give justice according
to the law of the country and not according to what they consider to be just under the
circumstances.
9. CIVIL AND CRIMINAL JUSTICE
A rough distinction between crimes and civil wrongs is that crimes are public wrongs
and civil wrongs are private wrongs. Blackstone20 writes: ‘‘Wrongs are divisible into
two sorts or species, private wrongs and public wrongs. The former are an infringement
or privation of the private or civil rights belonging to individuals, considered as
individuals, and are thereupon frequently termed civil injuries; the latter are a breach
and violation of public rights and duties which affect the whole community considered
as a community and are distinguished by the harsher appellation of crimes and
misdemeanours21.”
If successful, civil proceedings result in a judgment for damages, or in a judgment for
the payment of a debt or penalty or in an injunction or decree for specific restitution or
specific performance, or in an order for the delivery of possession of land, or in a decree
of divorce, or in other forms of relief known as civil.
19
Roscoe Pound, Vol. 13 Justice according to Law 696-713 (Columbia Law Review Association
(CLRA), Inc., 1913), available at: https://www.jstor.org/stable/1110655 (last visited on May 15, 2022).
20
Supra
21
Thomas P. Gallanis (ed.), III Commentaries on the Laws of England: On Private Wrongs (Oxford
University Press (OUP), The Oxford Edition of Blackstone, 2016).
12 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
If successful, criminal proceedings result in one of a number of punishments, ranging
from hanging to fine or in a binding over to keep the peace, release upon probation or
similar other results belonging distinctly to criminal law22.
9.1. PURPOSE OF CRIMINAL JUSTICE
The purpose of criminal justice is to punish the wrongdoer. He is punished by the State.
The question arises, what is the purpose of punishment or in other words, what is the
end of criminal justice. From very ancient times, a number of theories have been given
concerning the purpose of punishment. Those theories may be broadly divided into two
classes. The view of one class of theories is that the end of criminal justice is to protect
and add to the welfare of the State and society. The view of the other class of theories
is that the purpose of punishment is retribution. The offender must be made to suffer
for the wrong committed by him23.
9.1.1. THEORIES OF PUNISHMENT24
Administration of Justice is the primary functions of the State, is generally divided into
Administration of Civil Justice and Administration of Criminal Justice. The main
purpose of Administration of criminal Justice is to punish the wrongdoer. It is the State
which punishes the Criminals 25. From the ancient times, a number of theories have been
given concerning the purpose of punishment.
Khushi Sharma, “Difference between Civil Law and Criminal Law”, iPleaders (2022), available at:
https://blog.ipleaders.in/difference-between-civil-law-and-criminal-law/ (last visited on May 16, 2022).
23
V. D. Mahajan, Jurisprudence and Legal Theory 136 (Eastern Book Company, Lucknow, 5th edn.,
2001).
24
S. G. Goudappanavar, “Critical Analysis of Theories of Punishment”, Yumpu, (2013), available at:
https://www.yumpu.com/en/document/view/37160120/critical-analysis-of-theories-of-punishment-jsslaw-college (last visited on May 16, 2022).
25
Shikha Mishra, “Theories of Punishment – A Philosophical Aspect”, 2(8) Imperial Journal of
Interdisciplinary Research (IJIR) 76 (2016), available at: https://www.studocu.com/in/document/kleuniversity/jurisprudence/014/10870965 (last visited on May 16, 2022).
22
13 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
I.
DETERRENT THEORY26
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.
Criticism:
There is a lot of criticism of the deterrent theory of punishment in modern times. It has
been criticized on the grounds that it has proved ineffective in checking crimes and also
that excessive harshness of punishment tends to defeat its own purpose by arousing the
sympathy of the public towards those who are given cruel and inhuman punishment.
Hardened criminals are not afraid of punishment. Punishment losses its horror once the
criminal is punished.
II.
PREVENTIVE THEORY27
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. The supporters of this theory recognize imprisonment as the best mode
of punishment because it serves as an effective deterrent as also a useful preventive
measure.
26
Two utilitarian philosophers of the 18th century, Cesare Beccaria and Jeremy Bentham,
formulated the Deterrence Theory as both an explanation of crime and a method for reducing it.
Beccaria argued that crime was not only an attack on an individual but on society as well.
27
Justice Holmes (Oliver Wendell Holmes Jr.), the profounder of the preventive theory, stated that the
objective of punishment is to prevent offences, which can be done when the offender is checked by
disablement.
14 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
Criticism:
Critics points out that Preventative Punishment has the undesirable effect of hardening
first offenders, or juvenile offenders, when imprisonment is the punishment, by putting
them in the association of Harden Criminals.
III.
REFORMATIVE THEORY
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 criminal
must be educated and taught 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.
Criticism:
Critics of this theory state that if Criminals are sent to prison to be transformed into
good citizens, a prison will no longer be a 'prison' but a dwelling house. This theory has
been proved to be successful in case of young offenders.
IV.
RETRIBUTIVE THEORY
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”.
Kant argues that retribution is not just a necessary condition for punishment but also a
sufficient one. Punishment is an end in itself. Retribution could also be said to be the
'natural' justification.
Criticism:
Critics of retributive theory points out that punishment per se is not a remedy for the
15 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
mischief committed by the offender. It merely aggravates the mischief. Punishment in
itself evil and can be justified only on the ground that it yields better result. Revenge is
wild justice. Retribution is only a subsidiary purpose served by punishment.
V.
EXPIATORY THEORY
Under this theory, it is believed that if the offender expiates or repents and realizes his
mistake, he must be forgiven. This theory was prevalent in the ancient era in India.
Manu smriti declared that ‘when an offender is found guilty of a crime and is sentenced
to imprisonment by king, he becomes pure and goes to heaven like a good virtuous
man.’ It implies that his crime is expiated. This theory is no longer prevalent in the
modern era.
VI.
THEORY OF COMPENSATION
This theory is mainly about compensation to the victim of a crime. A victim to a crime
is one who has suffered any loss because of some act or omission of the accused. The
victim not only suffers physical injuries but psychological and financial hardships too.
Criticism:
The main criticism of this theory is that it tends to oversimplify the motive to crime.
Critics also say that this theory is not effective in checking the rate of crime. This is
because the purpose behind committing a crime is always economic in nature. Asking
the wrongdoer to compensate the victim will not always lower the rate of crime though
it might prove beneficial to the victim.
16 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
9.2. CIVIL JUSTICE
9.2.1. PRIMARY AND SANCTION RIGHTS
The rights enforced by Civil Proceedings are of two kinds viz., primary rights and
sanctioning rights. Primary rights are those rights which exist as such. They do not have
their source in some wrong. Sanctioning or remedial rights are those tights which come
into being after the violation of a primary right. A primary right is a right arising out of
conduct or as a jus in rem. A sanctioning right is one which arises out of the violation
of another night.
Sanctioning rights are (i) the right to be compensated by damages by the wrongdoer, or
(ii) the right to exact the imposition of pecuniary penalty on the wrongdoer by penal
action. The first is divided into two types: restitution and penal redress. Restitution
lies in restoring the plaintiff to his original position. Penal redress involves restitution
of all benefits the offender derives from his wrongful act, plus a full redress for the
plaintiff’s loss.
9.2.2. PENAL AND REMEDIAL PROCEEDINGS
All legal proceedings can be divided into five categories viz , action for specific
enforcement, action for restitution, action for penal redress, penal action and criminal
prosecution. Actions for penal redress, penal action and criminal prosecution are called
penal proceedings because their ultimate purpose is punishment. Actions for specific
enforcement and restitution are called remedial proceedings as their object is to remedy
a wrong; in the case of penal proceedings, the ultimate purpose of law is on the whole
or in part the punishment of the defendant. All criminal proceedings are penal although
the converse is not true. Some civil proceedings are also penal while others are of a
remedial nature.
17 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
10. THE ROLE OF JUDICIARY IN ADMINISTRATION OF
JUSTICE
Judiciary in India enjoys a very significant position since it has been made the guardian
and custodian of the Constitution. It not only is a watchdog against violation of
fundamental rights guaranteed under the Constitution and thus insulates all persons,
Indians and aliens alike, against discrimination, abuse of State power, arbitrariness etc.
but borrowing the words of one of the founding fathers of the American Constitution,
James Madison28, it can be said that the Judiciary in India is “truly the only defensive
armour of the country and its constitution and laws”. If this armour were to be stripped
of its onerous functions it would mean, “the door is wide open for nullification, anarchy
and convulsion”.
Indian Judiciary has been pro-active and has scrupulously and overzealously guarded
the rights fundamental for human existence. The scope of right to life has been enlarged
so as to read within its compass the right to live with dignity, right to healthy
environment, right to humane conditions of work, right to education, right to shelter
and social security, right to know, right to adequate nutrition and clothing and so on.
This has been achieved by filling the vacuum in municipal law by applying, wherever
necessary, international instruments governing human rights29.
One case after another, the Court has issued a range of commands for law enforcement,
dealing with an array of aspects of executive action in general, and of police at the
cutting-edge level in particular. Some instances :
(i)
Reiterating the view taken in Motiram30, the Supreme Court in Hussainara
Khatoon31, expressed anguish at the “travesty of justice” on account of
under-trial prisoners spending extended time in custody due to
unrealistically excessive conditions of bail imposed by the magistracy or the
James Madison, America’s fourth President (1809-1817), made a major contribution to the
ratification of the Constitution by writing The Federalist Papers. In later years, he was referred to as the
“Father of the Constitution.”
29
Apparel Export Promotion Council Vs. A.K. Chopra (1999) 1 SCC 759; Vishaka v. State of
Rajasthan (1997) 6 SCC 241 and T.N. Godavarman Thirumalpad v. Union of India & Ors. (2002) 10
SCC 606.
30
Motiram and others v. State of M.P., AIR 1978 SC 1594.
31
Hussainara Khatoon and others v. Home Secretary State of Bihar, AIR 1979 SC 1360.
28
18 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
police and issued requisite corrective guidelines, holding that “the procedure
established by law” for depriving a person of life or personal liberty (Article
21) also should be “reasonable, fair and just”.
(ii)
In Nilabati Behera32, the Supreme Court asserted the jurisdiction of the
judiciary as “protector of civil liberties” under the obligation “to repair
damage caused by officers of the State to fundamental rights of the citizens”,
holding the State responsible to pay compensation to the near and dear ones
of a person who has been deprived of life by their wrongful action, reading
into Article 21 the “duty of care” which could not be denied to anyone.
(iii)
In Joginder Kumar33, the court ruled that “the law of arrest is one of
balancing individual rights, liberties and privileges on the one hand and
individual duties, obligations and responsibilities on the other; of weighing
and balancing the rights, liberties of the single individual and those of
individuals collectively………”.
(iv)
In D.K. Basu34, the Court found custodial torture “a naked violation of
human dignity” and ruled that law does not permit the use of third-degree
methods or torture on an accused person since “actions of the State must be
right, just and fair, torture for extracting any kind of confession would
neither be right nor just nor fair”.
32
Nilabati Behera v. State of Orissa, 1993 SCC 746.
Joginder Kumar v. State of UP and Others, 1994 SCC 260.
34
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
33
19 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
11. SUGGESTIONS
Enhanced quality of administrative justice is essential to strengthen 21st-century
democracy and a strong administrative justice system is equally important if the
government is to maintain the trust of the public in its ability to deliver quality public
services.

There must be serious efforts to provide fair access to administrative justice and
eliminate the obstacles that work against it.

The Government must work on analysing and recognising their poor decisionmaking in the past which resulted in failed attempts to provide administrative
justice to the people.

The Government must look into the enactment of a statute like the Promotion
of Justice Act, 2000 which would define and monitor fair administration of
justice.

There need to be reforms that are to be made regarding the functioning of
tribunals. It is about time they are accessible online.

The importance given to the quasi-judicial bodies must also be increased as they
play a crucial role in a democracy in the making and reviewing of administrative
decisions.

For the purpose of uniformity in administrative justice amalgamation of
tribunals could be done as the system is, in England, Canada, Wales and
Scotland which would serve as a successful model. This would help in providing
a structure that would be more flexible and accessible.

Adequate care must be taken to ensure that administrative tribunals do not
become like courts and instead must maintain its informal nature. The focus
must be on justice and not the formal procedures.
20 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
12. CONCLUSION
The administration of justice is an emerging field because its theoretical framework,
objectives, themes, concepts, paradigms and theory are still being developed. Some
general questions that indicate the identity of the administration of justice as a field of
research and innovation are: Is there a theory of administration of justice? How could
such a theory be built/adapted in the Indian context? How can theories and concepts
from different areas of knowledge be reconciled to advance in the development of
theory? And, how could the administration of justice be institutionalized as an area
knowledge within public administration field? The administration of justice is too
important for the society to remain without systematic research into it. We understand
that although there is an efficient system of administrative action in our country there
is a huge scope of improvement. We must look into the different options and maybe
even adopt a few of the best practices from other countries which have successfully
established a good system to provide administrative justice as it would remain to be a
very crucial feature in a growing democracy like India 35.
Abhishek Kurian, “Problems associated with administrative justice” iPleaders (2020), available at:
https://blog.ipleaders.in/problems-associated-administrative-justice/ (last visited on May 16, 2022).
35
21 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice
13. BIBLIOGRAPHY

Civil Administration of Justice, available at:
https://www.srdlawnotes.com/2018/02/civil-administration-of-justice.html
(last visited on May 16, 2022).

Dr. Avtar Singh, Introduction of jurisprudence (LexisNexis, Chennai, 4th edn.,
2013).

Joseph Minattur,”Indian Legal System”, 2 Indian Law Institute, 22-23 (2006).

Jurisprudence Notes- Administration of Justice, available at:
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-administrationof.html (last visited on May 16, 2022).

N.R. Madhavamenon, “Our legal System”, Legal Aid Newsletter (November
1982).

N. V. Paranjape, Studies in Jurisprudence and Legal Theory, 229 (Central
Law Agency (CLA), Allahabad, 2013).

P. Mahendra Singh, V.N.Shukla’s Constitution of India, 13-22 (Eastern Book
Company, Kolkata, 11th edn., 2008).

V. D. Mahajan, Jurisprudence and Legal Theory, (Eastern Book Company
(EBC), Kolkata, 3rd edn., 2016).

What is Administration of Justice, available at:
http://www.studylecturenotes.com/social-sciences/law/290-what-isadministration-of-justice-definition-why-we-need-justice (last visited on May
17, 2022).
22 | P a g e
Paper- Advanced Jurisprudence
Topic – Administration of Justice