The Administration of Justice

Imagine a village with no police and no court. Someone steals your buffalo. Your only remedy is to gather your brothers and take it back by force, and perhaps take one of his buffaloes too. His brothers retaliate, and a feud begins that may last for generations. Now imagine the same village with a panchayat that hears both sides, decides who owns the buffalo, and has the power to make its decision stick. The second village has what jurists call the administration of justice: disputes are settled and wrongs punished by an impartial public authority backed by force, instead of by the strongest arm. This note explains what the administration of justice is, why the State took it over, how civil and criminal justice differ, the merits and costs of doing justice according to fixed law, and how the Indian Constitution and courts have tried to make justice accessible, speedy and independent.

Figure: The two wings of the administration of justice: civil justice (private wrong, suit, remedy) and criminal justice (public wrong, prosecution, punishment), replacing private vengeance

1. Meaning and Definition

The administration of justice means the enforcement of rights and the punishment of wrongs by the State through its courts, with the force of the State behind their decisions. Two elements are essential: right, which the State maintains, and force, by which it does so. Law without force is toothless; force without law is tyranny. The administration of justice is the union of the two: force exercised according to law, by an impartial authority.

2. From Self-Help to State Justice

Hobbes described the condition of men without a common power as a war of every man against every man, in which there is no security and no justice. In the earliest societies the wronged man had to right his own wrong: the remedy was self-help, private vengeance, the blood feud. It was uncertain (the weak could not enforce their rights), unequal (vengeance was rarely proportionate) and endless (violence bred violence).

The growth of the State changed this in stages. First the State regulated private vengeance, limiting who could retaliate and how much (the lex talionis of 'an eye for an eye' was, in its time, a limit on vengeance). Next it offered composition, a money payment to buy off the feud. Finally it took the whole business into its own hands, forbidding self-help and providing courts to settle disputes and punish wrongs. Salmond saw the administration of justice as the mark of this maturity. Some self-help survives even today, but only within narrow legal limits: the right of private defence (formerly Sections 96 to 106 IPC, now carried into the Bharatiya Nyaya Sanhita), the abatement of a nuisance, and the recaption of goods.

3. Justice According to Law: Advantages and Disadvantages

The State might administer justice in two ways: by the free discretion of wise judges deciding each case on its merits, or according to fixed legal rules. Modern systems adopt the second, and Salmond weighed its merits and costs. Justice according to law is a compromise: it gives up a little of the perfect justice of the individual case in exchange for the predictability and fairness of rules.

The remedy for these disadvantages is not to abandon law but to temper it: through equity, through judicial discretion in sentencing and remedies, through interpretation according to purpose, and through periodic legislative reform. The balance between certainty and discretion is examined in Note 47.

4. Civil and Criminal Justice

The administration of justice has two great departments. Civil justice is concerned with the enforcement of rights: a person whose private right has been infringed sues, and the court gives him a remedy. Criminal justice is concerned with the punishment of wrongs: the State prosecutes the offender, and the court, if it finds him guilty, punishes him. Salmond stressed that the distinction does not lie in the nature of the act. Civil and criminal wrongs differ in procedure and in legal consequence, not in the kind of conduct involved. The same act may be both: an assault, a defamation, a theft or a rash act of driving may give rise both to a suit for damages and to a prosecution.

Specific and sanctional enforcement

Civil justice enforces rights in two ways. Specific enforcement compels the defendant to do the very thing he was bound to do, or restores the plaintiff to the very thing he was entitled to: specific performance of a contract, an injunction against a nuisance, the recovery of land or goods. Where specific enforcement is impossible or inadequate, the court resorts to sanctional enforcement: it enforces a substitute or sanctioning right, typically the right to money. Salmond distinguished two forms. Restitution makes the defendant give up a benefit he has wrongfully gained. Penal redress makes him compensate the plaintiff for the loss caused; because the defendant usually loses more than he gained, it operates also as a kind of punishment, which is why the law of torts has a deterrent side.

Primary and sanctioning rights: two categories, not three

A common error is to list 'primary, sanctioning and remedial rights' as three kinds of rights. There are only two. Primary rights exist independently of any wrong, such as the right to one's property, reputation or bodily safety. Sanctioning rights arise only on the violation of a primary right, such as the right to damages. This is Austin's terminology, and Salmond also speaks of primary and sanctioning rights. Holland called the same pair antecedent and remedial rights. So 'remedial' is simply Holland's name for Austin's 'sanctioning', not a third category. Civil justice enforces primary rights specifically where it can, and sanctioning rights where it must.

5. Criminal Justice in Outline

The purpose of criminal justice is not merely to avenge the victim but to protect society. The criminal law defines the conduct society will not tolerate, and criminal justice enforces that definition by punishment. Why the State punishes, and to what end, is the subject of the theories of punishment (retributive, deterrent, preventive, reformative and others), which are treated fully in Note 27. Punishment is the characteristic instrument of criminal justice, as the remedy is of civil justice. Modern Indian criminal justice also looks to the victim, through victim compensation schemes and the victim's right to be heard, a development discussed in Note 27.

6. The Constitutional Framework in India

The Indian Constitution builds the administration of justice into its structure. Article 50, a Directive Principle, requires the State to take steps to separate the judiciary from the executive in the public services of the State; the Code of Criminal Procedure, 1973 gave effect to it by transferring judicial functions from executive magistrates to judicial magistrates. Article 39A, inserted by the Forty-second Amendment (1976), directs the State to secure that the legal system promotes justice on a basis of equal opportunity and to provide free legal aid so that no citizen is denied justice by reason of economic or other disabilities. Article 21, as interpreted after Maneka Gandhi (1978), guarantees a fair, just and reasonable procedure, including a speedy trial and legal aid.

Parliament has added a statutory framework. The Legal Services Authorities Act, 1987 set up the National, State and District Legal Services Authorities and gave statutory status to Lok Adalats, whose awards are deemed decrees of a civil court, final and not appealable. Section 89 of the Code of Civil Procedure, inserted by the 1999 amendment and in force from 2002, requires a court, where there appear elements of a settlement acceptable to the parties, to refer the dispute to arbitration, conciliation, judicial settlement including Lok Adalat, or mediation. The Mediation Act, 2023 gives a statutory framework to mediation, including pre-litigation mediation and the enforceability of mediated settlements. The Gram Nyayalayas Act, 2008 provides for village courts at the grassroots, able to sit as mobile courts, to take cheap and quick justice to rural areas.

7. Access to Justice, Legal Aid and Speedy Trial

A right is worth little if the courts cannot be reached, or can be reached only after decades. The maxim that justice delayed is justice denied (a proverb of uncertain origin) expresses the problem. The Supreme Court has read speedy trial and legal aid into Article 21.

8. Independence and Accountability of the Judiciary

Justice can be done only by a judiciary free from the control of the executive and the legislature, and it must also be seen to be done, as Lord Hewart insisted. Security of tenure, protected salaries and conditions of service, the bar on discussing a judge's conduct in the legislature, and a demanding procedure for removal are the constitutional guarantees of independence. Independence is not licence: the judiciary must also be accountable, through reasoned judgments open to appeal, through transparency, and through mechanisms for removing the corrupt or incapable.

9. Evaluation

The administration of justice is the proof that a legal system works. A perfect code is worthless if a poor litigant cannot reach the court, if trials take twenty years, or if judges are not independent. Indian law has responded on every front: legal aid and Lok Adalats for access, speedy trial for delay, ADR and Gram Nyayalayas for cost and distance, and the collegium and NJAC cases for independence. Critics point out that the backlog of cases remains very large, that legal aid is often of poor quality, and that the collegium system lacks transparency. The gap between the promise of Articles 21 and 39A and their realisation is the central challenge of the Indian administration of justice.

10. Frequently Asked Questions

Q. What is the administration of justice according to Salmond?
A. The maintenance of right within a political community by means of the physical force of the State. Salmond treats it, with war, as a primary function of the State and as the civilised substitute for private vengeance and self-help.

Q. How do civil and criminal wrongs differ?
A. Not in the nature of the act but in procedure and consequence. Civil proceedings aim at enforcing rights (by specific or sanctional enforcement) at the suit of the injured party; criminal proceedings aim at punishment at the instance of the State. The same act, such as an assault, may be both.

Q. Are there three kinds of rights: primary, sanctioning and remedial?
A. No. There are two. Primary rights exist independently of any wrong; sanctioning rights arise on their violation. Holland calls the same pair antecedent and remedial rights, so 'remedial' is simply another name for 'sanctioning'.

Q. What is the role of Section 89 CPC?
A. It requires a civil court to refer a dispute to arbitration, conciliation, judicial settlement including Lok Adalat, or mediation where elements of a settlement appear. Salem Advocate Bar Association (2005) and Afcons (2010) made it workable.

See also: Note 27 (theories of punishment), Note 21 (justice), Note 28 (rights and duties), Note 37 (legal sanctions), Note 47 (certainty and discretion), Note 40 (rule of law).