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CONCEPT OF JUSTICE
Concept of Justice
The concept of justice is as old as the origin and growth of human society. A man living in society desires peace and, while living in he tends to experience a conflict of interests and expects a rightful conduct on the others part. And this is why jurists like Salmond and Roscoe Pound have emphasized the importance of justice.
Through the instrumentality of law regulated by the state, the concept of justice became more clear. As the law grew and developed the concept of justice walked parallel and expanded its tentacles into different spheres of human activities. The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring the rights and duties duly respected by all. The notion of justice is the impartiality imbibed in it. The violation of justice which is enforced by the law results in state sanction as ‘punishment’.
In the words of Chief Justice Coke it has been rightly said that ‘wisdom of law and justice is wiser than man’s wisdom,’ thereby legal justice represents the collective wisdom of the community which Rousseau called as ‘General Will’ of the people.
The term justice has been derived from the Latin word ‘Jungere’ which means to bind or tie together, thus in this way it can be stated as justice is the key ailment which ties the individuals in the society together and harmonizes a balance between them and enhances human relation.
In the words of jurists-
- Blackstone- “Justice is a reservoir from where the concept of right, duty, and equity evolves.”
- Salmond- “Though every man wants to be righteous and just towards him, he himself being ‘selfish’ by nature may not be reciprocal in responding justly.” According to him, some kind of external force is necessary for maintaining an orderly society, and without justice it is unthinkable.
Types of Justice
Justice represents itself in kinds mainly:-
- Social Justice
In the words of Chief Justice, P.B.Gajendragadkar-social justice means ending all kinds of social inequalities and then provide equal opportunities to all.
Commenting on social justice Mr. M.C. Chagla, the former Chief Justice of the Bombay High court observed in the case of Prakash Cotton Mills v. State of Bombay, 1957 II LLJ 490 (Bom) that “ we are no longer living in the laissez-faire….. it is true that social justice is imponderable and we asked not to introduce the principles of social justice in constructing legislation that comes for interpretation before us. But in our opinion, no economic, social or labor legislation can be considered by the court without applying the principles of social justice in interpreting these related provisions of law.”
While in the case of State of Mysore v. Workers of Gold Mines 1958 II LLJ 479 (SC) the Supreme Court observed that the concept of social justice is a living concept of revolutionary impact: it gives substance to rule of law and meaning and significance to the idea of welfare of the state.
Thus, the concept of social justice aims to uplift the underprivileged section without unduly and unreasonably affecting the interests of the upper section of the society. The concept of social justice finds its expression in Articles 14 (equality before law), 15 , 16 (equality of opportunity in matters of public employment) and 39 (b) and (c) [(b) ownership and control of the material resources and its equal distribution, (c) operation of the economic system not resulting to the concentration of wealth and means of production to the common detriment], of the constitution of India.
It also determines the concept of Processual Justice based on natural law which is the very basis of not only substantive law but also the remedial justice. Legal maxims like Nemo Judex In Propria Cause (no one can be a judge in his own case); Audi Altrem Partem (here the other side or party) plays a vital role.
- Economic Justice
It demands that all citizens should have adequate opportunities to earn their livelihood and get equal pay for equal work, which could substantially help them in fulfilling their basic needs. From financial inclusion to better health care the state government should create opportunities for them by generating employment opportunities, following MNREGA, RSBY and so on. No person or group of person should indulge themselves in exploitation and be exploited. There must be a fair and just equitable distribution of wealth and resources, and the gap between rich and poor should get abridged.
- Political Justice
It means granting of equal political rights and opportunities to all citizens to take part in the administration of the country. The legality of the right to vote and contest election free and fairly.
- Legal Justice
It has two dimensions as the formulation of just laws and then to do justice according to it. While making laws the will of the rulers must not be used on ruled. Laws should be based on public opinion and public needs considering the core of social values, morality and the concept of just and unjust must be considered. It simply means rule of law and not the rule of person. Objective due dispensation of justice by the courts of law is an essential ingredient of legal justice.
Administration of Justice
The administration of justice in modern civilized societies has evolved through 4 stages:-
- Primitive stage- when society was primitive and private revenge and self-help were only the remedies available to the wrongdoer, one could easily get the wrong redressed with the help of his friends and relatives, ‘an eye for an eye, a tooth for a tooth and a limb for a limb.’
- Elementary/Infant stage- it has been considered that law and state were at infantry level during this stage, and the feeling of security as a responsibility by the state towards its individual and his property was absent. It didn’t have the enforcing power through which it could punish the wrongdoer.
- The growth of Administration of Justice- a change was about to witness where a sought of tariff schedules were fixed for different kinds of injury and offenses. And up to that time justice mold as private in nature without the compulsive force of the state.
- The modernization- it was the developmental stage where the state geared its authority and took upon itself the responsibility of administrating justice and punishing the wrongdoer using its force whenever necessary. This stage owes its origin and growth to the gradual evolution of the state and its political power. And with its transformation, private revenge and self-help got substituted by the administration of criminal and civil justice through law courts.
“Men being what they are-each keen to see his own interest and passionate to follow it-society can exist only under the shelter of the State, and the law and justice of the state is a permanent and necessary condition of peace order and civilization.” (Salmond)
Driving from the words of Salmond it is clear that administration of justice means justice according to law. Physical force of the state is the sole or exclusive factor for a sound administration.
Administration of justice is the firmest pillar of government, and granting justice is said to be the ultimate end of law and the goal of society, which the judges of the courts have been pouring into law with new variants of justice in the form of contemporary values and need-based rights like freedom, liberty, dignity, equality and social justice as ordained in the constitutional document. Access to justice for the people is the foundation of the constitution. [State of Haryana v. Darshna Devi, AIR 1979 SC 855, per Justice Krishna Iyer]
Under the purview of administration of justice it is classified into two kinds:-
1. Civil justice
Blackstone called it as ‘private wrong’. It has been defined as civil injuries where violation or infringement of civil or legal rights of an individual is taken into consideration. A civil case may result in an award of compensation or dismissal of the case. In jurisprudential term, the right of justice is enforced through the administration of civil justice which connotes enforcement and protection of rights as opposed to the punishment of wrongs.
The rights to be enforced under it may either be primary rights or secondary rights. Where the enforcement of Primary rights; is also called specific performance wherein the defendant is compelled to do the very act which is agreed upon to be done. For instance, payment of debt, or to perform a contract or restore land or property wrongfully taken or detained. It also connotes remedial rights under it, where the purpose may be either imposition of a pecuniary penalty upon the wrongdoer; or providing for pecuniary compensation to the plaintiff in respect of the damages which he has suffered from the defendant’s wrongful act.
And on the other hand is the Sanctioning rights; where the right to receive pecuniary compensation or damages from wrongdoer may be of two kinds:- (i) restitution- here the defendant is compelled to give up or restore the pecuniary value or some benefit which he has wrongfully obtained. (ii) The penal redress, where it’s not only restoration of all benefits which the wrongdoer has achieved through his wrongful acts, but also a full redress for the plaintiff loses.
Section 9 of the Civil Procedure Code, 1908 defines a civil suit. The civil courts in India have the power to try all suits of civil nature excepting those the cognizance of which is expressly or impliedly barred. These courts can grant declaratory, prohibitory and momentary reliefs.
2. Criminal Justice
Blackstone stated it as ‘public wrong’. The main purpose of administration of criminal justice has always been to punish the offender, while in certain general exceptional cases the accused may get acquitted. The nature of the violation of public rights and duties which affects the community as a whole is called a crime and a criminal proceeding results in applying on punishment varying from sentence of death to a mere fine or binding over the lawbreaker to keep the peace or his release on probation after admonition.
Under this, the magistrate has to decide the guilt of the accused on the basis of the evidence before him.
Theories of Punishment
Various theories are advanced in justification for punishing the offender. The view regarding punishment also kept changing with the changes in the societal norms. They are of following kinds:-
1. Deterrent theory
The term ‘Deter’ means to abstain from doing an act. While the main purpose of this theory is to deter the criminals from doing the crime or repeating the same in the future. Under this theory, severe punishments get impose upon the offender so that he abstains from committing a crime while it would constitute as a lesson to the other member of the society.
In the words of Salmond- punishment is before all things deterrent and the chief aim of the law of crime is to make the evil-doer an example and warning to all who are like minded as him. He further stated that offenses are committed by reason of conflict of interest of the offender and the society.
While this theory concept could be determined in the words of Manu from ancient India. According to him punishment or “dandh” are the sources of righteousness because people abstain from committing wrongful acts through the fear of punishment.
2. Retributive theory
This theory is based on the principle- "An eye for an eye, a tooth for a tooth…” here, retributive means to give in return. The object of the theory is to make the criminal realize the sufferings of the pain by subjecting him to the same kind of pain, as he had imposed on the victim. The theory has been regarded as an end in itself as it only aims at revenge taking rather than sound welfare and transformation.
Salmond puts his words stating that to suffer punishment is to pay a debt due to the law that has been violated. Revenge is the right of the injured person and the penalty for wrongdoing is a debt which the offender owes to the victim and when the punishment is given the debt is paid.
While this theory was never recognized as a just theory because it plays a role in self-motivation for committing a crime on the ground of justice for injustice. Overall it could be stated as it was a kind of abatement prompted by society to victims.
3. Preventive theory
The preventive theory is founded on the idea of preventing the repetition of crime by disabling the offender through measures such as imprisonment, forfeiture, death punishment, etc. In the words of Paton, ‘this theory seeks to prevent the prisoners from committing the crime by disabling him.’ It pre-supposes that need of punishment for crimes simply arises out of social necessities, as by doing so the community is protecting itself against anti-social acts which are endangering social order.
However, this theory was also not a just method as stated by jurist Kant and others that merely by awarding a term of imprisonment is not going to reduce the crime unless reformative efforts are made to integrate him in the mainstream of society through the process of rehabilitation.
4. Expiatory theory
This theory is solely based on the concept of morality, rather being much more concerned with legal concepts. It emphasizes more on ancient religious perceptions regarding crime and punishment when prisoners were placed in isolated cells to repent or expiate for their crime or guilty from their core of the heart and the one who succeeded in doing so were let off.
This theory is based on ethical considerations due to which it lost its relevance in the modern system of punishment.
5. Reformative theory
This theory emphasizes the reformation of offenders through the method of individualization. It is based on the principle of humanistic principle that even if an offender commits a crime, he does not cease out to be a human being. And an effort should be made to reform him during the period of incarceration. This theory is based on the principle of ‘hate the sin, not the sinner.’
The focal point of the reformist view is that an effort should be made to restore the offender to society as a good and law-abiding citizen. The Supreme Court in the case of T.K. Gopal v. State of Karnataka AIR 2000 SC 1669(1674) stated that- the law requires that a criminal should be punished and the punishment prescribed must be meted out to him, but at the same time, reform of the criminal through various processes, despite he has committed a crime, should entitle him all the basic rights, human dignity, and human sympathy.
ADMINISTRATION OF JUSTICE
- Views of Theorists on the ‘Importance of Justice’–
Salmond– Salmond said that the ‘Definition of law itself reflects that Administration of Justice has to be done by the state on the basis of rules and principles recognized’.
Roscoe Pound– He believed that it is the court who has to administer justice in a state. Both, Roscoe Pound and Salmond emphasized upon the Courts in propounding law. However, Roscoe Pound stressed more on the role of courts whereas Salmond stressed more on the role of the State.
- Administration of Justice- There are two essential functions of every State:
- Administration of Justice
Theorists have said that that if a state is not capable of performing the above mentioned functions, it is not a state.
Salmond said that the Administration of Justice implies maintenance of rights within a political community by means of the physical force of the state. However orderly society may be, the element of force is always present and operative. It becomes latent but it still exists.
Also, in a society, social sanction is an effective instrument only if it is associated with and supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a substitute for the physical force of the state.
Origin and Growth of the concept of Administration of Justice
It is the social nature of men that inspires him to live in a community. This social nature of men demands that he must reside in a society. However, living in a society leads to conflict of interests and gives rise to the need for Administration of Justice. This is considered to be the historical basis for the growth of administration of justice.
Once the need for Administration of Justice was recognized, the State came into being. Initially, the so called State was not strong enough to regulate crime and impart punishment to the criminals. During that point of time, the law was one of Private Vengeance and Self-Help.
In the next phase of the development of Administration of Justice, the State came into full-fledged existence. With the growth in the power of the state, the state began to act like a judge to assess liability and impose penalty on the individuals. The concept of Public Enquiry and Punishment became a reality.
Thus, the modern Administration of Justice is a natural corollary to the growth in the power of the political state.
Advantages of Legal Justice
- Uniformity and Certainty– Legal Justice made sure that there is no scope of arbitrary action and even the judges had to decide according to the declared law of the State. As law is certain, people could shape their conduct accordingly.
- Legal Justice also made sure that the law is not for the convenience of a particular special class. Judges must act according to the law. It is through this that impartiality has been secured in the Administration of Justice. Sir Edward Coke said that the wisdom of law is wiser than any man’s wisdom and Justice represents wisdom of the community.
Disadvantages of Legal Justice
- It is rigid. The rate of change in the society is always more rapid than the rate of change in the Legal Justice.
- Legal Justice is full of technicalities and formalities.
iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of the society, we need complex laws.
- Salmond said that ‘law is without doubt a remedy for greater evils yet it brings with it evils of its own’.
- Classification of Justice- It can be divided into two parts
- 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.
- 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.
- Concept of Justice According to Law
Justice is rendered to the people by the courts. Justice rendered must always be in accordance with the law. However, it is not always justice that is rendered by the courts. This is because the judges are not legislators, they are merely the interpreters of law. It is not the duty of the court to correct the defects in law. The only function of the judges is to administer the law as made by the legislature. Hence, in the modern state, the administration of justice according to law is commonly considered as ‘implying recognition of fixed rules’.
- Civil and Criminal Justice
Civil Justice and Criminal follow from Public Justice and Private Justice. 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’.
- Theories of Punishment
- Deterrent Theory– Salmond said that the deterrent aspect of punishment is extremely important. 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.
The aim of this theory is not to seek revenge but terrorize people. As per this theory, an exemplary punishment should be given to the criminal so that others may take a lesson from his experience.
Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the people under control, penalty protects them, and penalty remains awake when people are asleep, so the wise have regarded punishment as the source of righteousness”. However, critics believe that deterrent effect not always leads to a decrease in crime.
- 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.
- 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. Thus, the main object of Punishment under Reformative theory is to bring about a moral reform in the offender. Certain guidelines have been prescribed under this theory.
- While awarding punishment, the judge should study the characteristics and the age of the offender, his early breeding, the circumstances under which he has committed the offence and the object with which he has committed the offence.
- The object of the above mentioned exercise is to acquaint the judge with the exact nature of the circumstances so that he may give a punishment which suits those circumstances.
iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their character. However, the Critics say that Reformative Theory alone is not sufficient, there must be a mix of Deterrent Theory and Reformative Theory in order to be successful. Critics believe that in a situation of deadlock between the two theories, the Deterrent Theory must prevail.
Distinction between Deterrent Theory and Reformative Theory
- Reformative Theory stands for the reformation of the convict but the Deterrent Theory aims at giving exemplary punishment so that the others are deterred from following the same course of action.
- Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on the criminals, there will be no scope for reform.
- Deterrent Theory believes that the punishment should be determined by the character of the crime. Thus, too much emphasis is given on the crime and too little on the criminal. However, Reformative Theory takes into consideration the circumstances under which an offence was committed. Reformative Theory further believes that every effort should be made to give a chance to the criminal to improve his conduct in the future.
- 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”. This principle was recognized and followed for a long time. Retributive theory believes that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his reward in equivalent suffering.
- Theory of Compensation– This theory believes that punishment should not only be to prevent further crime but it should also exist to compensate the victim who has suffered at the hands of the wrongdoer. However, critics 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. Under this theory, the compensation is also paid to the persons who have suffered from the wrongdoing of the government.
Kinds of Punishment
1. Capital Punishment– This is one of the oldest form of punishments. Even our IPC prescribes this punishment for certain crimes. A lot of countries have either abolished this punishment or are on their way to abolish it. Indian Judiciary has vacillating and indecisive stand on this punishment. There have been plethora of cases where heinous and treacherous crime was committed yet Capital Punishment was not awarded to the criminal.
2. Deportation or Transportation– This is also a very old form of punishment. It was practised in India during the British Rule. The criminal is put in a secluded place or in a different society. Critics of this punishment believe that the person will still cause trouble in the society where he is being deported.
3. Corporal Punishment– Corporal punishment is a form of physical punishment that involves the deliberate infliction of pain on the wrongdoer. This punishment is abolished in our country but it exists in some Middle Eastern Countries. Critics say that it is highly inhuman and ineffective.
4. Imprisonment– This type of punishment serves the purpose of three theories, Deterrent, Preventive and Reformative.
Under Deterrent Theory, it helps in setting an example.
It disables the offender from moving outside, thus serving the purpose of Preventive Theory.
iii. If the government wishes to reform the prisoner, it can do so while the person is serving his imprisonment, thus serving the purpose of Reformative Theory.
- Solitary Confinement– Solitary confinement is a form of imprisonment in which a prisoner is isolated from any human contact. It is an aggravated form of punishment. It is said that it fully exploits and destroys the sociable nature of men. Critics say that it is inhuman too.
- Indeterminate Sentence– In such a sentence, the accused is not sentenced for any fixed period. The period is left indeterminate while awarding and when the accused shows improvement, the sentence may be terminated. It is also reformative in nature.