CHAPTER-2

JUSTICE DELIVERY SYSTEM: CONCEPTUAL

ANALYSIS
2.1 JUSTICE

Law in India has evolved after a long process and it came in the existence after
the social structure evolved. Society cannot exist without rules and regulations. If there
will not be rules in the society, it will create anarchy.

The history of legal system starts from the Vedic ages. Initially the man was like
an animal as he was not social as the concept of society was not there. Then man felt the
need of society as the protection of his interest is not possible without the existence of the
society. Man adopted the culture and then he became socialized and society came into
existence. The concept of culture came into existence when human felt that without it the
need of basic life cannot be fulfilled. So the culture came into existence to help the man
to meet with his needs, Human, society and their culture they all grow up with each other
and the whole range of culture in the different societies is identical and closely related.

When man started living in the society then his journey to search for justice
stared. The need of justice delivery system was the result of conflict of interest between
all the individuals who were living in the society. Now the question arises that how to
solve the conflict of interest which arises among the members of society. The best way
which was adopted and still in use is by balance of interest between the member and
society itself. In another way the conflicts among individuals must be solved by the
harmonious human relations.

According to Ernst Banker –

“Justice is a term of synthesis. It is the final Principal which comforts the general
distribution of rights and the various principles of their distribution.”2

2
Principles of Social and Political theory 167, (Clarendon, Oxford, 1952)

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 Justice is not given. It is taken. The meaning of this sentence that justice is not
given it is something to be achieved is that one must be conscious about his rights and he
must be vigilant about his rights and duties. Justice is harmonious reconciliation in the
society between the interests of general public against the interest of an individual. There
is always a conflict between the Individual conduct against the general welfare of the
society. So, to achieve the justice the act of individual is differentiated between the just
and unjust. Now question arises what are those Acts which come under the definition of
Just and what are those Acts which comes under the definition of Unjust Acts? Just acts
are considered those acts which promote happiness, promote common good and on the
other hand unjust acts are considered those acts which promotes self interest and which
acts against the general interest of the society. No one can deny this fact that justice
cannot be given, it is something to be achieved even in the welfare state as no one is
going to deliver justice to the man who is himself not vigilant and careless about his
interests.

According to ROSCOE POUND, “Justice is an Endeavour that achieves results”.3

The Term Justice and the acts of individual which are considered the just and
unjust acts, they all are not fixed and they change by time and by change in the Social
conditions. So we can say that these are ambiguous in meaning and changed by changing
situation and the time.

2.1.1 CONCEPT OF JUSTICE AND ITS GENESIS

The term justice is derived from the Latin word “Justia” Jus means mercy, truth,
moral, rightness, law, morality. The concept of justice is more ancient as compare to the
law and the concept of justice is the result of all the major Political and Social reform
moments since immemorial in another word justice is a term derived from the Latin word
which means morality but on the other hand law is not based upon morality. There are
two types of wrongs in the society, first, the wrong which is against the morality and
Secondly the wrong which is prohibited by law. So, the law is not based upon morality

3
Supra Notes 1 of 13

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but it is something which makes some act prohibited means if one will do some acts
which is declared prohibited by law, he will get the punishment for the same.

In ancient India there was not much difference between law and Dharma. They
were considered same. For the people Dharma was the law and if one does anything
which was against the Dharma it was considered that he has committed something
contrary to law and the concept of punishment was there for that person. Ancient India
was governed by the law of nature which includes duties, morals and ethics not only for
the member of society but also for the rulers. To administer the justice was the primary
task of the King. It was first time mentioned in the Dharm-Sutras4 that primary duty of
the King was to administer the justice according to the Dharma.

2.1.1.1 DURING ANCIENT PERIOD

During ancient period there was no difference between Public wrong or Private
wrong even murder and culpable homicides were also treated Private wrong and concept
of compensation was also there. In Ancient India the Criminals were divided into two
classes First, Casuals, Secondly, habitual. According to Manu’s Criminal Code some
exceptions were there in the concept of crime. Such as general exception, such as self
defence was there. Its means if one has committed murder in his self defence, it was not
considered as a crime as it was allowed as an exception from the criminal liability if there
was no dishonest intention and act of the person was committed either by mistake of fact
or with the consent of the victim or the result of an accident. These exceptions are
incorporated later on in Indian Penal Code of 1860 Manu’s Criminal Code was in force
until the Moghul Rule was established in India. So, In ancient India it was interesting to
see that the first judge was the elder member of the family as he was having authority to
resolve the dispute between the members of his family and decision made by him was
appealable to the judges appointed by the king and the last deciding authority was the
king as the decisions made by the judges were appealable to the king. To decide the
disputes was called duty of the sovereign and king was the sovereign so these things were
performed by the king as a duty and he was duty bound to provide the justice. Later on

4
Sen Gupta: Evolution of Ancient India

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when the duties of the King increased then he dedicated his duty to solve the matters
related to civil and criminal and delegatee were called judges. Somewhere they were
called Kazi and somewhere they were called Munsif and the word Munsif is still present
today as the judges of the lowest jurisdiction is called Munsif. In old days there were
three categories of the laws dharam Shastra, archestra, usages and custom. Dharmshastra
was the highest level of the law and it was really moral code of the conduct and on the
other hand Arthshastra means dealing with material things such as rules of trades, rules
related to succession etc.

2.1.1.2 DURING MUGHAL PERIOD

During the Mughal period Kajis were entitle to administer the justice and for
punishment some concepts were there such as Kisa (retaliation) or diyut (blood money),
hadd (fixed punishment) and tazir (Syasa). During this period justice delivery system was
not uniform and that was the big problem faces by the members of the society. When
Britishers came and they took the opportunity of Administration of justice, efforts were
made to provide uniform justice delivery system.

2.1.1.3 BRITISH PERIOD

At the beginning of the British period, Britishers start to try to understand the
Justice delivery system as at that time the whole system which was available for the
delivery of the justice was under the influence of Mughals. Britishers took time to find
out the nature of law prevailed in India at that time. They saw number of problems in
Indian Justice delivery system and they made their mind to remove all the things which is
un-rational according to them.

Britishers wanted to have the system of law which must have reasonable and
sense of Natural Justice. According to the Britishers there must be confidence in the
Subject that they will get opportunity to be heard before they will be punished, in another
word they must get opportunity for a fair and impartial trial. The justice delivery system
used by the Moghals were the admixture of customs which was existed and the rules of
personal laws and many other rules came from different sources but the Britishers were
having an Idea to provide universal criminal law for India in which the accused too get

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the right to defend himself the law during the period and the justice delivery system
during the period of Britishers was a great success as during their rule it worked
successfully as well as our present legal system is almost same and we followed their
Justice delivery system with slight changes.

This is how they started the try to make Universal laws in India and the codified
the laws as in the Mughal rule there was no codification of laws. The Mughal was having
simple system that criminal matters must be administered by the Islamic law and civil
matters of non Muslims must have been resolved by the customs of own religion of the
non muslims. The Britishers codified the IPC which was applicable on all the persons
whether Hindu, Muslim, Sikh or Christian, in short it applied to everybody. Britishers
also codified the Indian Contract Act which governs the matters related to business
dealings in our country. So, the codification of laws and establishment of certain courts
were mainly started by the Britishers and it can be said that the modern structure of the
courts started from the period of 1860 as during this period Britishers established various
High courts. They continued the lower courts which were established by the Mughals and
we can see that still in the north the civil courts are called Diwani Adalat. Adalat means
courts and Diwani means civil action. The criminal courts are still called faujdari Adalat
because Faujdar were there to administer the criminal matters under the Mughals. In
North India courts are still called kachhari. When Britishers tried to create universal rules
and regulation in India in Presidency towns still different rules were applicable and in
Presidency towns what they had was called Sadar Diwani Adalats. In those days which
were Prior to the Independence the final authority was the courts established by the
Britishers and Supreme Court was not established at that time final appeal can be filed in
a body which was called privy Council. This body was sitting in London and parties had
to go there and only those who can afford it may go there to get the justice as it was too
expensive because not only the parties had to go there but they also had to engage a
lawyer in London to start the litigation. Discontinued about 1936 and in the year of 1937
the federal court was established in Delhi and the Federal Court was at that time what we
have in the name of Supreme Court today. So, when the federal court was established the
structure of the courts was as follow.

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Federal court, different High Courts, District judge and the lowest was the Munsif which
is now called civil judge.

The first chief justice of the Federal Court was the great educationist and his name
was Sir Maurice Gwyer. He established Delhi University. He studied in Oxford
University and he wanted to have campus like Oxford in Delhi.

So, he established not only the campus of Delhi University but also the colleges
near by the Delhi University so that one can have feeling of the university and at the
same time he was the vice chancellor of the university and the chief justice of the federal
court. Federal court continued till Independence and the last Chief Justice of the Federal
Court was the chief justice H.J. Kania from Bombay.

2.1.1.4 DURING MODERN PERIOD

The modern justice delivery system is based upon the principles such as “equity,
justice and fair play”. The concept of natural justice is also there in Present Justice
Delivery System. Punishment is also an essential part of the justice delivery system and
in India punishment is served on the two basis first, correction of the offender so that
offender can become the good citizen and secondly to eliminate the person who proves to
be guilty to society. Modern law gives importance to intention to find out that whether a
crime has been committed or not. If an act is committed without the intention of the
person who has committed the act that Act will not come under the definition of crime, in
another words only those Acts and omission are considered crime where guilty intention
is there, without guilty mind the Act or omission cannot be called crime. The concept of
strict liability is also there in the modern justice delivery system and the concept of
Absolute liability has also an important place in modern Justice delivery system as an
exception.

“Actus Non Facit Reum Nisi Mens Sit Rea” The maxim has a great value in the
Present Justice Deliver System as this maxim clearly says that an act of a person cannot
be understood as a crime if he was not having guilty mind. The intention to do wrong or
at least the knowledge the person about the nature of his act is important. The above
maxim can be understood from two points of view, one from the physical point of view

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as the Term “Actus Reus” represents the physical aspect of crime, and on the other side
the term “Mens Rea” deals with the mental aspect of crime. Now question arises that
what is the meaning of mental aspect of crime as to find out the mental aspect of crime is
essential to deliver the justice.

Mental Aspect of Crime

1. Intention

2. Knowledge

Sometimes if person has committed an offence is not having intention to commit

that act, his act will not be called crime, in the present system of the justice delivery if the
doer of the act had knowledge about the result of his act and the result is not too remote
then also his act will come in the definition of the crime.

2.2 KINDS OF JUSTICE

As it is earlier mentioned that Justice is a term derived from the latin word
“Justia” and Jus means truth, morality, rightness. India is a welfare state and the welfare
state has a prime duty to provide justice to the members of the society and we can divide
the concept of the justice in the two types.

a. Universal,

b. Particular.

2.2.1 UNIVERSAL JUSTICE

The meaning of universal justice is to follow the law. If a person is living in

society so he has to follow the norms and regulation in the society which is made by the
society. If an individual follow the law of the society only in that case he can be called
just and if an individual is not willing to follow the rules of society his act will be called
unjust. Universal justice is a conduct in agreement with law. According to Universal
justice if anything which is lawful that thing can be considered as just and if anything is
not lawful that particular thing will be called unjust. If you want to know that a particular

27
act is just or not, you have to see whether that particular act is lawful or not as if an act is
lawful that act will be just and if that act is not Lawful that act will be called unjust.

According to Aristotle justice is complete virtue or perfect virtue. It means that

one has to follow the law made by the society and he has to act and behave according to
the rule and regulation of the society. The meaning of law is the common general rules
which are made in the society so that the behavior and activity of the members of the
society can be controlled for the Peaceful living.

The process to make rules and regulations for the society is based upon some
techniques in which first society has to decide that what is the correct behavior and then
what should be the rules and law so that everyone will adopt the correct behavior. When
every individual is willing to follow the rules and regulations of the society it creates
good for the society. In Universal justice the rules are made for the whole community and
to protect the interest of each and every individual who is member of the society.

2.2.2 PARTICULAR JUSTICE

To know the meaning of particular justice is first we have to understand that what
was the need of particular justice in the society? The meaning of universal justice means
that everyone has to follow the rules of society and these rules are of general nature such
as traffic rules or the Civil and criminal laws and there is no particular rule for any
particular individual but sometime some situation arises in which there is no rule and law
to deal with. To deal with such situation and to resolve the problem we have to take
decision according to the particular situation in another word we can say that to take
decision in such type of situation we need to take help of particular justice. So the
particular justice helps the society to take decision in the situation where there is no Law
and rule provided.

And it too further divided into two parts-

1. Commutative justice

2. Secondly distributive justice.

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2.2.2.1 Distributive justice

Distributive justice means and relates with the distribution of Justice. It gives us
answer to the question that how there must be fair and proper distribution of honor,
property, wealth, benefit, burden, opportunity and political power. So in another word we
can say that the fair and proper distribution of honor, property, wealth, benefit, burden,
opportunity and political power is the task of the distributive justice. For the distribution
of these things one principle is adopted by the society. The principal which is adopted is
equal should get equal share and unequal should get unequal share. Corrective justice is
also called commutative justice. Society needs distributive justice for the equal and fair
distribution of valuable such as honor, power, property, wealth, benefit, burden,
opportunity and political power. On the other hand we need corrective justice to correct
the wrong done by an individual against another individual in the society. Corrective
justice is to correct the act of an individual and the person to become a good citizen and
to eliminate a person who proved to be guilty to society.

Law in India has evolved after a long process and it came in the existence after
the social structure evolved. Society cannot exist without rules and regulations. If there
will not be rules in the society, it will create anarchy. The history of legal system starts
from the Vedic ages. Initially the man was like an animal as he was not social as the
concept of society was not there. Then man felt the need of society as the protection of
his interest is not possible without the existence of the society. Man adopted the culture
and then he became socialized and society came into existence. The concept of culture
came into existence when human felt that without it the need of basic life cannot be
fulfilled. So the culture came into existence to help the man to meet with his needs,
Human, society and their culture they all grow up with each other and the whole range of
culture in the different societies is identical and closely related. When man started living
in the society then his journey to search for justice stared. The need of justice delivery
system was the result of conflict of the individual’s interest while they are dealing with
each other. Now the question arises that how to solve the difference in the interest among
the members of the society. The best way which was adopted and still in use is by
balance of interest between the member and society itself. In another way the conflicts

29
among individuals must be solved by the harmonious human relations. Justice is a term
derived from the Latin word “Justia” and Jus means truth, morality, rightness. India is a
welfare state and the welfare state has a responsibility to provide the justice to the
members of the society and we can divide the concept of justice in the two types. First,
Distributive Justice and we can explain it as the Economic, Political and Social frame
work of each society is a result of benefits given by the society. These are the result of
human political process. Distributive justice is a fair and just distribution of Social
Primary goods such as right, liberty income, wealth. Distributive justice is an idea of fair
share and it is related to the word of Sanskrit that means realized justice. Now question
arises that what is the meaning of realized justice. So, the meaning of this is that what is
the actual consequence of the law in society Distributive justice is concern about the fare
distribution of assets among the members who are living in the society.

Armstrong who was the great scholar of political science believed that there is a
difference between the application of the distribution of the benefits and the principle
provided in the theories related to the distributive justice. Armstrong said that society
needs distributive justice for the equal and fair distribution of valuable such as honor,
power, property, wealth, benefit, burden, opportunity and political power. On the other
hand we need corrective justice to correct the wrong done by an individual against
another individual in the society. This provides the basic idea that how the Burdens and
these benefits ought to be divided and circulated. Everything which the society possesses
is adequate for the need of the society but it is not adequate to satisfy the greed of the
members of the society. So, the benefits must be circulated in the way that all persons
may get the share they deserves. The solution for this problem is that public assets must
be dispersed in a manner which must be sensible so that all the persons who are
participating in the society by their respective work may get the “reasonable share”. But
now question arises that what is the meaning of a “Fair Share”. Various rules are there to
find out that how to make equal share of the benefits in the society. Equality is the most
common criterion to determine that how goods must be distributed for the benefit of
society. If we take help of equity to determine the question how to distribute and what
must be given to whom, then the benefits shall be distributed in the equal way among the

30
people, in another words each member shall get the goods at the same quantity. However,
due to divergences in level of the demand, the equal outcome will not be the result.
Another possibility is to go for the principles of equality and distribute the benefit as per
the rule of proportion means distribute the benefit in proportion to the individual’s
contribution. The person who has performed the great task in the society will get the great
share in the society. Thus, in this theory if the member of the society work hard and do
valuable job in the society he gets the more money, in another words if a person work
hard and perform valuable task in the society he deserves to have more money for that.
The relation of this theory is directly with that type of economic system where the
opportunity is there for all the members of the society compete. So, in the system where
there is the concept of competition is there, the wealth or goods might be circulated on
the basis of the personal efforts and the skill of that person. The goods might be
distributed according to the needs, so that an equal outcome shall be result of that. The
person who need more, get more and the person need more resources will get more
resources for example need-based scholarship is offered by the colleges or welfare
payment is provided by the state to the poor. The state protects the interest of the
members of the society specially the person who cannot compete in the society because
of the poor financial condition. This type of system is combined with the principle of
equity with that of need. These system problems two task at the same time. It rewards the
person for his extra ordinary efforts as well as it ensures the basic needs of those who
needs.

The resources of the society must be distributed in the accordance with the social
utility and also in the accordance with the interest of the general society, in another word
we distribute the resources on the basis of two ideas not only to give the award to the
performing person but also to help those members of the society who needs the part of
the resources of the society. the executives of our country who are high paid generally
makes a statement to justify their high salary that they deserves to get high salary because
of the contribution they made in the society, they also argue that they are the one who
creates the job in the society with the aim to give benefit to each and every individual of
the society.

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 Effective and efficient production by the members of the society is essential for
the existence of the society and if effective and efficient production is not there by the
members of the society then society cannot grow. To give scene of full-fledged
membership to the members of the society, the principle of distributive system came into
existence. The principle of equity motivates the members of the society to participate and
to produce and it also works to motivate the members to be rewarded for his efficiency.
Distribution according to need and efficiency of the member of the society creates the
atmosphere in which everyone can survive and it is good for the members of the as well
as it prevent the act of crime and disturbance in the society. So, in another words it can be
said that if all the members of the society knew that their essential needs are going to be
met by the society itself and equal opportunity will be provided so that the members who
can perform can get the best prize, the ratio of crime will reduce.

John Rawls also claims that some status such as social and family status of a
person or the birth place is the matter of luck and that shall not effect or influence the
benefit one must get in his life. So, according to him one must get the benefit from the
society on the basis of his personal efforts and performance and not according to the
position achieved by their family. He said that the “doctrine of distributive Justice” is to
make limitation on the factors such as luck and award those who performed in the society
so that they can get motivated.

It was believed by the Robert Nozick that the aim of the distributive justice is to
make sure that fair process of exchange is existed in the society and everyone can have
the fair share. According to him for the existence of the society the fair distribution is
must and the efforts of an individual must be recognized. It was believed by him that any
particular outcome cannot be the aim of the distributive justice but other believed that the
aim of the distributive justice is not only the process but the aim also consist the
particular outcome.

It is believed by them that in order to make the people feel that their interest is
safe in the society the process of the distribution must be fair. Sometimes the thing which
is to be shared is the burden and not the benefit for example which person has to pay
income tax and how much tax one has to pay etc. The theory provides that it will be

32
considered injustice if the member of the society come to believe that one other person is
having similar position in the society but the outcome of that other person is not similar
to his outcome. So, when it is felt by the members of the society that they are not getting
the fair share in the society they feel unjust and because of this circumstances arises in
which they might wish to challenge the whole system that has given rise to this state of
affairs. In our society one thing is good for the persons who want to achieve good
position by their personal efforts that the distribution is not based on the things such as
skin color or any other thing like this. If the distribution in the society is based on the
practice which is not just than it can affect the peaceful atmosphere of the society so, for
the existence of the society the distribution must be based on the principles such as equity
and the efforts of the person must be considered while giving the position to any person
in the society.

On the other hand the Procedural Justice can be explained as this is a popular
conception that “fair procedures” are the fair and best guarantee for the fair and
outcomes. Decisions are made in the procedural Justice according to the fair process.
Whether the people like the outcomes of Procedural Justice or not if procedural law treats
them with respect and dignity, it is accepted by the people. But what makes procedures
fair? First it must be consistence, it also guarantee that like cases must be treated alike. So
it means if the cases are same there will be no difference in the Procedural Justice, as it
must be duty, if the Authority to provide justice in which feeling of equality is there and
there must not be any difference between the members of the society on the basis of cast,
Social Position or Race or Sex.

It is essential that those carrying out the procedures must be the person who is
neutral and impartial. It is also important that the person who has the responsibility of
Procedural justice must be the one who is unpaired decision maker and only he can carry
out the procedures to be reached in the fair and accurate conclusion. Those who involved
must have faith on the intention of the third party that the third party has fair intention
and the third party is no biased. For the decision making process both things is required.
There must be third party and that third party must be unbiased and second thing which is
required is that there must be a law which is equal for all and there must not be any

33
discrimination between any person on the basis of cast, colour or sex. One more thing
which is important for the Procedural Justice is that the person must have the voice and
the representation who is directly affected by it. The fact that they can represent
themselves in the process increase the trust factor as it gives confidence in the public that
the process is for the good of the society by the society itself. This is important for the
weaker section of the society whose voice go un-heard.

2.2.2.1.1 PROCEDURAL JUSTICE

Decisions are made in the procedural Justice according to the fair process.
Whether the people like the outcomes of Procedural Justice or not if procedural law treats
them with respect and dignity, it is accepted by the people. But what makes procedures
fair? First it must be consistence, it also guarantee that like cases must be treated alike. So
it means if the cases are same there will be no difference in the Procedural Justice, as it
must be duty, if the Authority to provide justice in which feeling of equality is there and
there must not be any difference between the members of the society on the basis of cast,
Social Position or Race or Sex.

It is essential that those carrying out the procedures must be the person who is
neutral and impartial. It is also important that the person who has the responsibility of
Procedural justice must be the one who is unpaired decision maker and only he can carry
out the procedures to be reached in the fair and accurate conclusion. Those who involved
must have faith on the intention of the third party that the third party has fair intention
and the third party is no biased. For the decision making process both things is required.
There must be third party and that third party must be unbiased and second thing which is
required is that there must be a law which is equal for all and there must not be any
discrimination between any person on the basis of cast, colour or sex. One more thing
which is important for the Procedural Justice is that “those who are directly affected by
the decisions should have a voice and representation”. To have a representation in the
process increase the trust factor as it gives confidence in the public that the process is for
the good of the society by the society itself. This is important for the weaker section of
the society whose voice go un-heard.

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 The process that is adopted should be crystal clear. Decisions should be
implemented through open procedure, with honesty. For implementing the fair process it
is believed by many persons that Procedural Justice is not enough for the outcome and
other maintained that fair outcomes are likely to be translating by the fair procedure.5

Four Principles of the Procedural Justice

1. There must be fairness in the process.

2. There must be transparency in the action.

3. There must be opportunity for all the persons to raise their voice.

4. The decision making authority must be impartial one.

Both Nozick’s and Rawl’s theory is based on the principles of Procedural Justice.
So, we can say that the whole concept is based upon the idea of institutional fairness and
the just rules and the Procedural Justice is based upon the fair principles. In another word
the justice must be done as well as justice must be visible so that members of the society
can see that the justice is there and they all are protected and no one can do any act which
will go against their interests which are protected by the law.

In Procedural Justice, everyone has the opportunity for voice so that means not
only the victim has the right to raise his voice whenever he feels that his rights are in
danger but the Accused has also right to defend himself and this is the beauty of the
Procedural Justice. The basic idea of the good procedural justice is not possible without
the impartial decision making. The meaning of this term that the decision making
authority must be impartial is that the person who has the responsibility to take decision
related to implementation of law and the Administration of Justice must be impartial and
must no differentiate the members of the Society on the basis of their cost, race, sex and
Social Position.

Procedural Justice is closer to the Individualistic, liberalist ideology, Liberalism

Idealism believes in the individualistic Ideology that means the Ideology which is in the

5
William Nelson.”The Idea of Pure Procedural Justice” Ethics, Vol.90, No.4 (July 1980), 506

35
favor to give more rights to the individual as compare to the Society common goods the
faith that for a better society the individual must gets maximum benefit. The whole idea
is based on the basic rule which is simple that the State has to make just rules which is
good for the society and protects the interests of the members of the society on the bases
of these rules and do not interfere unnecessary. Procedural Justice is also called formal
justice, legal justice and institutional justice.

2.2.2.2 CORRECTIVE JUSTICE

According to the Aristotal the particular justice has of two types one is
distributive and second is corrective justice. He believed that the purpose of the
corrective justice is to maintain the balance in the society to prevent the practice of unfair
advantage taken by one person on the other person. Justice must be given to the person
who faces undeserved harm and also the compensation must be given to the injured
person. It is also believed by the Aristotal that the private transaction is of two types.

1. Voluntary transaction,

2. Involuntary transaction.

Generally, the meaning of the transaction is the voluntary transfer of the benefit but
according to the Aristotal any benefit which is transferred whether voluntary or
involuntary is called transaction and the transfer must be in accordance with the justice as
if a person got undue benefit from the other person he must return that benefit to the
person form whom he got that undue benefit. Some examples of the involuntary
transactions are murder, theft, rape, adultery, assault and defamation.

If any person got undue benefit from the other person in that case the benefits
must be returned and in case any wrong is done by any person he must got the
punishment. The purpose of the punishment is to correct the behavior of the wrongdoer.
Retributive justice is the principle based on the merits and desert. In this idea it is
believed that all the persons must get what they deserve. The person who works hard
must get award for that and must get some fruits for that. So, that they have motivation to

36
work in a good way and get motivated for the hard work. On the other hand those who
break law must get the punishment for that.6.

If the person acts in a good way in the society he will get the good treatment from
the society. Immanuel Kant had the belief that the “rule of law” is there and the members
of the society have to play their respective part with full of dedication this is called the
“rule of law”. If any individual is interested in the pleasure and not in the pain it means
he just wants to have the benefits from the society and he is not willing to pay the price
and according to the Immanuel Kant he is a free rider. For the good society every
member has to play his part and if he is willing to have benefits he has to pay the price
and has to bear the pain7.

2.2.2.2.1 NATURAL JUSTICE

The word natural justice is derived from the Roman word “Jus Natural” which
means principle of good conscience. This principle is the outcome of the necessity of the
Judicial Thinking and did not come from divine power. For the good “Justice delivery
system” it is required by the decision making Authority that while applying their mind.
The rule of the natural justice has not been codified anywhere and they are procedural by
the nature itself and the Aim of natural Justice is to ensure delivery to the parties. The
rule of natural justice is recognized by all the civilized states. The intention of these rules
is to prevent such authority from doing injustice. “Article 21 of the constitution” provides
the right which relates to the life and this right is also somehow related with the right of
natural justice. Natural Justice provides security to all the members of the society that
they and their rights are protected in the society as the feeling of security is important for
the existence of society. For the best way of the life there must be security of individual
and individual’s personal right and property.

Rule of Justice are not the rule embodied in any statute but still it is part and
parcel of the law of any civilized state. Whenever any authority who has the duty to
Administer the Justice, face the problem where the provided provisions fails to provide

6
Rachels, James ‘Punishment and desert’, in Ethics, in practice. ed.Hugh, 466.
7
Murphy jeffrie G. retribution reconsidered, norwell acadmic publisher, 1992

37
justice so to meet the need of justice. The Authorities are suggested to use their
discretionary power; this process is called Natural Justice.

The concept of Natural Justice was adopted and used in the British Period and in
the present “justice delivery system” it is used by the decision making powers to deliver
the justice.

Over the years two rules are developed related to the Natural Justice, these are:-

“Nemo debt esse Judex in Propria causa”-

The meaning to this rule is that no man shall be a judge in his own case. In
another word no man shall be the decision maker in the dispute in which he himself a
party as if the person who is in directly interested in the matter but somehow interested,
he cannot deliver justice. So, far the unbiased justice delivery system the decision making
authority must be unbiased.

“Audi Alteram Partum”

The meaning of this rule is that no one should be condemned unheard, in another
word no one should be unheard whether victim or the accused. For the better Justice
delivery system both parties must have a right to defend his acts. If we will not give right
to the accused to defend than we cannot expect the good justice delivery system.

In Som Dutt Vs. Union of India 8 it was held that the authorities such as
administrative authorities or the disciplinary authorities must give valid reasons while
giving decisions due to all of this it is developed that orders passed by the enquiry
officers and the decision making authorities must be backed with the reasons and must be
the orders and decision which may come under the definition of Speaking orders. If the
orders will not be the speaking orders as they will not have the reasons so they cannot be
said well for the justice, as the speaking orders are an essential for the natural justice and
if reasons are provided at the time while order is given then only it can be called that the
evidences are appreciated by the judicial authority.

8
1969 Supreme Court 414

38
2.3 HISTORICAL DEVELOPMENTS OF COURTS IN INDIA

Justice system includes the Authority which is made to decide the matter of
controversy and the police system and the concept of the punishment. Courts have the
responsibility to deliver the Justice and serve the punishment on two Basis first,
correction of the offender to become the good citizen and to eliminate a person who
proves to be guilty to society.

2.3.1 REGULAR COURTS

The subject matter of the courts and Justice delivery system in India can be
studied in 5 heads.

2.3.1.1 ANCIENT INDIAN PERIOD

The present system of court is the system which is adopted from the British
system of delivery of Justice. If we study the Indian legal history we will get to know
that in ancient India a well organized justice delivery system were present in our
country9, even before the British period the well established courts and process for the
justice delivery were present. The Hindu period was an era where the Justice Delivery
system was in the hand of King. Some kings like to appoint special officers to take
care of justice delivery system. “Mahadandadhikari” or “Nayayamimansak” or
Dandadhish” were appointed by the king for the smooth running of the system and to
provide justice in the criminal cases. If the matter was decided by the Special Officer
appointed by the King then appeal from such cases was allowed to be before the King
who was considered the final Judge as only the king had the power to alter the
sentence or order for acquittal of offender. The King was having power to grant Royal
Pardon as the case may be.

According to the ancient delivery Justice delivery system to punish the offender
and prevent the crime was the duty of the King and that duty was also considered
“Dharma” for the King. One more important thing we must know that King takes from
his subjects. To give them protection there is a price in the shape of rent, faxes and duties.
In order to assure the peaceful life and protection, King and his appointed special officers
9
Sen P.K.Penology Old and New 1943 PP110-11

39
were duty bound to search out the persons who commits crime and also the king had the
duty to eliminate the offenders whether or not any complaint was made. It means if no
complaint was made by the victims then also the king was duty bound to eliminate the
criminals.

During the Vedic period, the head of the family had the power to decide the
matters related to his house as the head of the family had that power because the
society was Patriarchal. In Vedic Period Patriarchal family system was there and
family was recognized by the name of their father.. Manusmriti gave power to the
Husband to correct the behaviour of his wife. The head of the family had the power to
correct the behaviour of all other members of his family. Manusmriti gave power to
head of the family to give punishment for bad acts to the other members by hit with
stick on the back part of the body but he was not allowed to hit on the sensitive parts
of the body.10

So, it was interesting to see that the first judge was the elder member of the family
as he was having authority to resolve the dispute between the members of his family and
decision made by him was appealable to the judges appointed by the king and the last
deciding authority was the king as the decisions made by the judges were appealable to
the king. To decide the disputes was called duty of the sovereign and king was the
sovereign so these things were performed by the king as a duty and he was duty bound to
provide the justice. Later on when the duties of the King increased then he dedicated his
duty to solve the matters related to civil and criminal and delegatee were called judges. In
old days there were three categories of the laws Dharamsutra, Arthshastra, usages and
custom. Dharmsutra was the highest level of the law and it was really moral code of the
conduct and on the other hand Arthshastra means dealing with material things such as
rules of trades, rules related to succession etc.

We may also derive knowledge about the system established to provide the
justice in the criminal matters of ancient India by reading, “The Hindu Dharamsutras
and Kautilya’s Arthashastra” according to these sources the criminal justice delivery

10
Manusmriti XI, 325

40
system of that time was very organized and the rights related to life and property of all
the members of the society were in the safe custody of the king. According to
Nitishasstra, the King was the head of the justice delivery system and it was duty of
the Kind to punish the wrong doers and if King fails to perform his duty to deliver
justice, he was bound to go to the hell11. Manu the law giver also mentioned the Art to
prevent the act of crime and how to defeat the criminal act. It was also the
responsibility of the King or the Special Officers appointed by the King to give the
punishment to the wrong doer if any complaint came to them. But it does not mean
that the King has to wait for the complaint to be made before he punishes the criminal.
King and his Special Officer were always used to be in the hunt of criminals. The
King and his Special Officers had their own network to reach and find out the
offenders.

In the 310 B.C. the “Kautilya’s Arthashastra” was written and in this the detailed
provisions related to the responsibilities duties and the procedure which was adopted
by each and every authority who had the responsibility to deliver justice is mentioned.
It is also provided in this written document that the king and other special officers who
were appointed by him has the responsibility to guard the rights of the subjects such as
related to the property and related to the life, it means that king with his special
officers had the task to punish the offender so that he may become the good citizen or
if it is believed by the king that it is impossible that the person cannot become the
good citizen the king was duty bound to eliminate that offender.

2.3.1.2 MEDIEVAL PERIOD/MUGHAL PERIOD

This was the period, which was known as the Mughal Period because the Justice
delivery system was in the hand of the Mughal rulers. The Incharge of the Justice
delivery system was Nawab or Nazim and they generally decide the big cases in which
the punishment is of capital punishment and the offenders related to the property were
generally decided by the Subordinate Special Officers and they were called Darogah-
Adalat-at-alia. There were another special officer appointed to solve other criminal cases

11
Vardachariar’s: Hindu Judicial System (1946) P.93

41
except those offences in which the punishment is capital punishment and that special
officer was called by the name of “Fauzdar”. The Court of Fauzdar was called Fauzdari
Adallat. The Mohtassib, a Petty Police Official was to take care of petty cases such as the
case of narcotics or drunkenness. There were appointment of one more special officer
called Kotwal and his duty was to ensure the maintenance of law and order throughout
the territory. Criminal law was same for all the persons but Personal Law was not same
as there was a special law for the Muslims and administered by Qazi. The cases of
Muslims related to marriage, maintenance and inheritance was decided by their personal
law. The Qazi not only solve the personal law matters of the muslims but also criminal
matters, related to the Muslims were also solved by the Qazi.

The two Important Source of the Muslim Criminal Law were first was “Hidaya”
and second was called “Fatwa-Alamgiri”. In the “Hidaya” the Principles related to the
Muslims criminal law was contained, on the other hand “Fatwa-Alamgiri” was the
collection of the case law to guide the criminal law courts. The Fatwa was also known
as Qazi and he had the great importance as he had the great power in the Criminal
Justice System. He had that power for long time until the British period started.

2.3.1.3 BRITISH PERIOD

At the beginning of the British period, Britishers start to try to understand the
Justice delivery system as at that time the justice delivery system of India was under the
influence of Moghal. Britishers took time to find out the nature of law prevailed in India
at that time. They saw number of problems in Indian Justice delivery system and they
made their mind to remove all the things which is un-rational according to them.

Britishers wanted to have the system of law which must have reasonable and
sense of Natural Justice. According to the Britishers there must be confidence in the
Subject that they will get opportunity to be heard before they will be punished, in another
word they must get opportunity for a fair and impartial trial. The justice delivery system
used by the Moghals were the admixture of customs which was existed and the rules of
personal laws and many other rules came from different sources but the Britishers were
having an Idea to provide universal criminal law for India in which the accused too get

42
the right to defend himself the law during the period and the justice delivery system
during the period of Britishers was a great success as during their rule it worked
successfully as well as our present legal system is almost same and we followed their
Justice delivery system with slight changes. The Mughal was having simple system that
criminal matters must be administered by the Islamic law and civil matters of non
Muslims must have been resolved by the customs of own religion of the non muslims.
The Britishers codified the IPC which was applicable on all the persons whether Hindu,
Muslim, Sikh or Christian, in short it applied to everybody. Britishers also codified the
Indian Contract Act which governs the matters related to business dealings in our
country. So, the codification of laws and establishment of certain courts were mainly
started by the Britishers and it can be said that the modern structure of the courts started
from the period of 1860 as during this period Britishers established various High courts.
They continued the lower courts which were established by the Mughals and we can see
that still in the north the civil courts are called Diwani Adalat. Adalat means courts and
Diwani means civil action. The criminal courts are still called faujdari Adalat because
Faujdar were there to administer the criminal matters under the Mughals. In North India
courts are still called kachhari. When Britishers tried to create universal rules and
regulation in India in Presidency towns still different rules were applicable and in
Presidency towns what they had was called Sadar Diwani Adalats. In those days which
were Prior to the Independence the final authority was the courts established by the
Britishers and Supreme Court was not established at that time final appeal can be filed in
a body which was called privy Council. This body was sitting in London and parties had
to go there and only those who can afford it may go there to get the justice as it was too
expensive because not only the parties had to go there but they also had to engage a
lawyer in London to start the litigation. Discontinued about 1936 and in the year of 1937
the federal court was established in Delhi and the Federal Court was at that time what we
have in the name of Supreme Court today. So, when the federal court was established the
structure of the courts was as follow.

Federal court, different High Courts, District judge and the lowest was the Munsif which
is now called civil judge.

43
 The first chief justice of the Federal Court was the great educationist and his name
was Sir Maurice Gwyer. He established Delhi University. He studied in Oxford
University and he wanted to have campus like Oxford in Delhi.

So, he established not only the campus of Delhi University but also the colleges
near by the Delhi University so that one can have feeling of the university and at the
same time he was the vice chancellor of the university and the chief justice of the federal
court.

The Supreme Court was first established with the help of Regulation Act 1973 at
Calcutta by the king of the England. The full power and authority was given to the
Supreme Court to give judgment and to solve all the Complaints for any type of crime
and Supreme Court was authorised to determine any Suit against any person who belongs
to Bengal, Bihar and Orissa. On the other hand more Supreme Courts were established at
Madras and Bombay by King George III on the date of December 26th 1800 the Supreme
Court of Madras was established and the supreme court of Bombay was established on
the date of December 8, 1823.These three supreme courts were abolished when the
Indian high courts act 1861 was enacted also abolished Sadar Adalat in the presidency
towns. At that time high courts were the highest courts for all the criminal as well as civil
matters in their respective jurisdiction related to their area till the federal court of India
came into existence with the help of Government of India Act 1935. When the federal
court came into existence it became the highest court and became the appellate court as it
hear appeal against the judgment from these high courts. After the Independence India
made its own constitution and the supreme court of India came into existence and the first
sitting was held on January 28, 1950.

2.3.1.4 PERIOD OF INDEPENDENT INDIA

In the Independent India Justice delivery system improved a lot. We got one of
the best Justice delivery system, in which we got the Judicial System which is divided in
to bar and bench. Our Judiciary is free from all the interferences of the executive and the
legislative organs of the Government. For the welfare of the each and every person who
is having faith in the society and the person who is living in the society as the member it

44
is important that the Judiciary must be free from the control or the interference of the
executive or legislative powers.

Judge is free to decide the cases but he has to follow the settled principles of law
though he can use his Discretionary Power to save the purpose of law and to deliver
justice.

The Courts in India after Independence is almost same which it was in the British
Period. Indian Courts are divided by the different kinds of Jurisdiction such as
Jurisdiction related to the Subject matter or Jurisdiction related to the value of the subject
or original Jurisdiction, revisional Jurisdiction, appellate Jurisdiction. The Criminal
Courts comprise of the Magistrates and Court of Session. “The High Court” and the
“Supreme Court” have only appellate Jurisdiction.

These Courts are expected to deliver the justice without any favor and also without
any fear within the limits of the law so as to maintain uniformity and impartiality in the
system which provides justice. The discretionary powers provided to the judges plays an
important role. Judges are duty bound to protect the justice with the help of the
discretionary power and the written law provided for this purpose.

The Modern Judicial System prevailing in India for the Administration of Justice
as follows12

a. The Supreme Court.

This Court is the highest Court to provide justice in our country. When the
constitution was adopted on 26th November 1949 after independence the Supreme Court
was established. When the Supreme Court was established it was supposed to have only
seven judges and when they hear a case in which they need interpretation of the
Constitution there must be a bench of judges of Supreme Court in which five judges must
be involved. So, the basic idea of the makers of the Constitution was that the Supreme
Court would decide constitutional issues, the issues which affect the nation and issues
which affect the fundamental rights guaranteed by it. Today we have 31 judges in the
Apex court and near 1000 judges in different High Courts. Now it has not only appellate
12
Sharma P.D: Police and Criminal Justice Administration in India

45
jurisdiction but also has the original jurisdiction it means an individual can directly go to
the Apex Court to get the remedy. It has also 3rd jurisdiction which is called advisory
jurisdiction in which the President of India can ask Apex Code for advice on a particular
set of question. The last one is to decide the dispute between the two States for the
dispute between the state and Centre for example.

There is a dispute of water between Punjab and Haryana. There is a dispute

between Maharashtra and Karnataka overland these all disputes are dealt by Supreme
Court. In all over the world there is no court which has wider jurisdiction as compared to
our Apex Court. As it has right to annul the law made by the Parliament or the law made
by the state including right to strike down any action of executive. If we compare the
supreme court of United States we can find out that they have jurisdiction to annul the
law made by the central government in other words they had jurisdiction over federal
issues as they can deal with the law involving federal laws and dear Supreme Court does
not have any jurisdiction to decide an issue related to state laws such as state taxes etc.
While our Supreme Court has jurisdiction to decide the law made by the centre as well as
State Government. This is the reason it is also called the Apex Court. It has the appellate
jurisdiction over the cases where the sentence is given to the accused to the Imprisonment
of the term of 10 years or more. The Supreme Court has the Writ Jurisdictions to enforce
the Fundamental rights under Article 32 of the Indian Constitution and other rights under
“Article 139 of Indian Constitution”.

Since 1980 the concept of restorative Justice has been adopted by the Apex Court
in which monetary compensation is awarded to the person who comes under the
definition of the victim of the abuse of process especially in cases of the “custodial
torture”13 or “illegal detention”14. This Court is the custodian of the constitution.

b. State High Courts

13
Saheli Vs. Commr. Of Delhi AIR 1990 S.C
14
Rudall Shah Vs State of Bihar 1983 S.C

46
 For each state there are High Courts as provided under “Article 124 of the
Constitution of India”. Within the State High Court is the highest Judicial Court. Under
Article 217-222 the condition which is related with the appointments of the judicial
officers for the High Court are contained. Each High Court has original as well as the
appellate jurisdiction as provided under Article 225 as also Sections 194, 374, 375 and
377 of the Criminal Procedure Code.

“The High Court” has power to issue certain writs within its territorial jurisdiction
for the enforcement of any right provided in the Part III of the “Constitution of India” 15.
The High Court also has power to superintendence over all the Subordinate Courts and
the Tribunal situated within its territorial jurisdiction16.

c. Courts of Session

In India in each District there shall be a Session Court to be presided over by the
Session Judge and if required one or more Additional Session Judges. In certain cases,
Assistant Session Judges are also appointed to work in the Session Court.

The Session Judge or the Additional Session Judge is having the power to deliver
any sentence authorized by the law but if they want to give capital punishment as they
have the authority to do so but that order of capital punishment must be confirmed by the
High Court17.

The Assistant Session Judges however do not have power to award death sentence
or the imprisonment for life or the imprisonment for a term which exceeds the ten years18.
Session Judges or the Assistant Session Judges are appointed by the High Court of that
State and they had jurisdiction related to original or Appellate.

15
Article 226 of the constitution of India.
16
Article 227 of the constitution of India.
17
Section 28(2) of the code of criminal procedure.
18
Section 28(3) of the code of criminal procedure, 1973.

47
 d. Courts of Judicial Magistrate/ Metropolitan Magistrate

State Government appoints them with consultation with the High Court19 in each
district other than the metropolitan area. “High Court shall appoint a judicial magistrate
of 1st class as the Chief Judicial Magistrate”20.

The function of the Chief Judicial Magistrate is to guide, supervise and control
over other Judicial Magistrates and he himself decides important cases. Chief Judicial
Magistrate allocates the Judicial Work in the Judicial Magistrates.

The Criminal Procedure code retains in the modified form, some of the old
provisions which is related to the Presidency town of the Bombay, Calcutta and Madras,
Accordingly the 1973 Code provides for the establishment of courts of the Metropolitan
Magistrates in Metropolitan area instead of the presidency magistrates.

It is provided by the Cr.P.C. that the metropolitan area is that area where the
population exceeds one million and is so declared by the notification by the Government
of that state.

e. Executive Magistrate

They are appointed by the Government of the state in every District and one of
them can be appointed as District Magistrate. All the Executive Magistrates except the
Additional District Magistrate are the subordinate of the District Magistrate. The
appointments of these magistrates were not controlled by the High Courts as they have to
deal with the executive matters. Under the Criminal Procedure Code they are empowered
to control over the preventive actions and the disputes concerning the immovable
properties and offences relating to the Public nuisance21.

Functions of the Criminal Courts

The modern criminal law courts perform the following functions namely

19
Section 11(1) and (2) of Cr.P.C.
20
Section 12 (1) of the code of criminal procedure.
21
Sections 107 to 124 and 129 of Cr.P.C.

48
 (a) Redressal of grievance of complaint who is wronged by the criminal act of
the offender.
(b) Punishment to the offender.
(c) Fair and impartial trial and also ensuring the accused the chance to defend.
Maintenance of law and order in the public by eliminating offenders
through punishment

The backbone of our system related to courts is that there is no hire and fire rule.
They have secure tenure even their pay is protected. The idea behind this is that they
must work without fear as in the matter which they might get to resolve in one side
maybe the state or executive and on the other side might be a poor man wanted to have
justice. Even the judicial officers of the lower courts cannot be removed as they can be
removed only after the consent obtained from the High Court. Their independence
provides confidence to the public that the rights of them are in the safe hands. We cannot
deny that it has some problems but ultimately it is the last hope for the persons who
wanted to have the protection from unjust.

The biggest problem in our system is delay and backlog of the matters. It is said
to say that we have near 3 crore cases pending and more than 50 lacks are pending in the
High Courts and about 75,000 are pending in the Apex Court. So, question arises that
what should be done.

Judge population ratio is quite miserable in our system. So, we need more judges
and the second step is to reduce the number of appeal we have too many appeals in our
country, no other country has so many appeals in their system. One more thing which is
essential to improve our system is a radical alteration of our procedural laws. About
procedural law both of civil or criminal were framed by the Britishers in a long time
period ago. At that time we had the luxury of time but today it is not so and we are using
those rules with some amendments here and there. Some amendments here and there are
not good enough and a complete radical alteration of procedural law is required to
improve the system. In other word new law and new system is required. So, we have to
remove all the Britishers made laws and have to bring new laws keeping in the view the

49
fact that we have a large population and we do not have luxury of time which we had 100
or 150 years ago.

Any system is good or bad depends upon the fact that who are using that system,
in other words the people behind the system make a system good or bad. The person who
is behind the system is called judge. So, the best thing which can be done is to select a
good person as a judge and a good person means a person with integrity, a person with
some knowledge, a person with some vision. A person who is very much influenced with
any other faith whether any religion or similar to that is not good to be a judge because he
must be influenced only by the law and Justice. So, question arises that how to get a good
person? To get a good person as a judge there must have of proper body to select.

2.3.2 OTHER FORUMS DEALING WITH CRIMINAL MATTERS IN INDIA

There are some other forums dealing with the criminal matters in the Indian
justice delivery system these forums are discussed below.

2.3.2.1 NYAYA PANCHAYATS

The age old institution of the Panchayat is an organ to the Justice delivery system.
It was a part of local self government. The framer of the Constitution made a provision
after the independence “Panchayat Raj” in Article 40 of Part IV of the Constitution.

Many laws were enacted to give power to the Nyaya Panchayats so that the
Nyaya Panchayats can deal and decide petty offences and petty civil matters. It was
believed that the Panachayats must be given power to deal with the petty offences and
also to solve the petty civil matters so that the Nyaya Panchayats may solve small matters
of the villages and it may save time and energy of the courts. Justice Sona Sunderam of
the Madras High Court said that the panchayat courts ought not to be invested with
criminal justice power because they seem to carved away by the local politics and
communal feelings22.

22
Venkatchala Vs Panchayat Board, Ethasic

50
2.3.2.2 LOK ADALATS

We can define “Lok Adalat” as the “people’s court”. Members of the Lok Adalat
came into existence to give chance to the people for speedy and costless settlement of
their dispute. The Phrase Lok Adalat are brought from the two words “Lok” and
“Adalat”, the meaning of this is People’s court or public opinion and decision making
through deliberation.

Judicial Officials are presiding over Lok Adalats and the principle of fair play;
justice and equity are the guiding principles to provide justice to the justice seekers. In
Lok Adalat the matters are decided by the way of the compromise on the basis of equity,
justice and fair play.

The Lok Adalats are having two fold functions. First, it has to provide quick, less
technical, accessible, time saving forum for the resolution of the dispute. Secondly, Lok
Adalat has to tackles the menace of the “docket explosion” in piling number of pending
cases before the regular courts.

In the State of Gujrat “Justice P.N.Bhagwati the Former Chief Justice of the
Supreme Court” was the person who establishes the system of “Lok Adalat”. Later the
system of “Lok Adalat” was introduced to other states also such as the State of
Maharashtra, Kerla, Andhra Pardesh, Union Territory of Delhi etc.

These courts decide the pending cases before the regular courts by the way of
compromise and the mutual consent of both the parties. The Justice delivery system
related to the “Lok Adalat” has a big contribution to provide the justice to the needy; the
“Lok Adalats” are also providing the speedy justice in the society. Our law also provides
provisions of compoundable offences under Section 320 23 . There are two types of
compoundable offences, first, the offences which can be compromised without the
consent of the courts and secondly, the offences which cannot be compromised without
the consent of the court.

23
Criminal procedure code, 1973

51
 It is provided in the law24 that the court may transfer the case which is not of a
serious nature to the “Lok Adalat” for the settlement as it will save the time of that court
and it is also helpful for the parties as they will get the justice in the less time as compare
to the time which normally taken by the lengthy process of the court. The joint
application from both the parties is must for the application of this process as the court
cannot transfer the case to the “Lok Adalat” if joint application is not made by both the
parties which show the intention of them that they are willing to resolve their problem
with the help of the court. In the year of 2002 the act which contains the provision for the
“Lok Adalat” is amended25 and now the new provision enable the parties to file their
matter in the “Lok Adalat” directly, the meaning of this provision is this that now the
parties are not bound to go to the court first and also they are not bound to make a joint
application to transfer the case to the “Lok Adalat”.

The right to “speedy justice” is provided in the “Fundamental Right to the life and
liberty enshrined in Article 21 of the Constitution of India”. The main aim to establish the
“Lok Adalat” is to provide the justice to the people in the time.

2.3.2.3 THE LEGAL SERVICES AUTHORITIES

“The Legal Services Authorities Act, 1987” has a great contribution to make our
justice delivery system more efficient as because of this act the weaker section of our
society is also able to get the justice as it is a general saying that “justice must not be
denied to any citizen for the reasons of economic or any other disabilities” the meaning
of this statement can be explained that in the society no one should be deprived from the
justice. Sometime the persons are not able to stand for justice because of the costly
process and the reason that they are suffering from any disability such as economic or
any other disabilities which affects his chances to get justice from the justice delivery
system. The main purpose to organise the Lok Adalat is to ensure the operation of the
legal system and also to promote the justice and the basis of all this process is to provide
the equal opportunity.

We can discuss some objects of the Lok Adalat as-

24
Section 20(1) of the Legal Services Authorities Act, 1987
25
The Legal Service Authority Act, 1987 is amended by the Act of 2002

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 1. The weaker section of the society must get free and competent legal service
so that they can protect their rights.

2. There must be speedy disposal of the matters with the help of Lok Adalat
that's so that the people may get justice in proper time.

3. One of the main object of “Lok Adalat” is also to fulfill the “directive
principles relating to Legal Aid of poor provided under article 39-A of the
constitution”.

4. To set-up the permanent “Lok Adalat” to use the jurisdiction to solve the
matters related to public utility service.

5. There must be an equal opportunity for all the members of the society to
get the justice by the justice delivery system.26

2.3.2.4 SPECIAL COURTS

Besides the above hierarchy of courts, number of special courts is also established
to solve the matters related to SC & ST27 and other special enactments.

2.3.2.5 FAST TRACK COURTS

The session court cases and other cases which are pending for a long time without
any rational ground must be dissolved and for the disposal of these cases the eleventh
finance commission recommended that 1734 additional courts must be established and
these courts will be called Fast Track courts28. Those cases which are pending and which
comes under the jurisdiction of the Court of Session is the area in which the Fast Track
Court are established to work. The main purpose of the Fast Track Court is to resolve the
long pending cases in time so that the parties of the case may get justice in time.

The Apex Court said in Brij Mohan Lal Vs Union of India29 that all the states as
well as all the High Courts must ensure that all the vacancies of the Fast Track Court
must be filled within 3 months of the date of the judgment. The said judgment itself

26
Section 22-B of the legal services authorities act.
27
Prevention of Atrocities Act, 1989
28
Paranjap, criminology and penology with victim logy, 15 th Edn. Report,2012.
29
Judgment dated may 6, 2002.

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shows that the value and importance of the Fast Track Courts and it also shows Fast
Track Courts must be taken very seriously to dissolve the pending cases and for speedy
trial.

The proposal was to set up at least five Fast Track Courts in each District of the
country. This proposal was to see the number of pending cases of the Indian Courts and
to preside over these courts to retired Session Judges or Additional Session Judges is
appointed as the Adhoc- Judges. High Courts have the power to appoint the judges. The
High Court and the Government of all the states are directed to earmark at least one Fast
Track Court in each District specially to dissolve the cases related to Senior Citizens,
abuse of the women and the disabled.

2.3.2.6 FORUMS UNDER ASPIRATIONS

High Courts are already over burdened with work and therefore, it is not possible
to have the effective control over the subordinate courts. To have the trust about the
accountability of the judicial system as contemplated by the Preamble of the Indian
Constitution some independent authority which is outside the Judicial System is essential.
The function of the judicial ombudsmen shall include:

1. To monitor the work of the Judicial Officers and also the work of Prosecutors,
Police, Jailors but the Judicial Ombudsmen shall not obstruct the
independence of the judiciary.

2. To examine the conduct of the Judges and the staff dealing with the Justice
delivery system.

3. If conduct of the Judge or any officer engaged in the system which provides
the delivery of the justice is not good so to tell them that their conduct is not
good and reprimand that officer.

4. To make the year on year report to be submitted to the Parliament or the State
Legislature and to make the recommendations in that Annual report.

The Justice delivery system of the nations such as Spain, Finland, Canada, U.S.A,
Maxico and U.K. includes the concept of ombudsman with different names.

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Ombudsman should be given power to receive complaints, investigate and make suitable
recommendations regarding administrative conduct and local courts. This will not affect
the independence of the Judiciary30.

2.3.2.6.1 INTERNATIONAL CRIMINAL COURT

These days the scope of the transaction of the human beings and the nation with
another nation is very wide as with the development of Science and the development of
Trades from one nation to another nation and other developments, the international
interactions developed so, some offences are committed in which victim is from another
country and the criminal is from another country. These offences are: Piracy, Hijacking,
Genocides, Espionage and various other descriptions of related crimes. Just because of
these crimes, the need of international law that must be universal so any confusion must
not be there required as well as the international court is competent, so such type of
crimes can be tried and Justice delivery system must be there.

In the course of Justice delivery system no one can rule out the possibilities of the
erroneous decision as the Judge and the other persons who are playing important
elements are also human. That is the reason the persons have the right to go for the
appeal. We all are by nature a social animal and we cannot live without state and it is said
by the Aristotle that if a man is able to live without the state, it means that he is either
above the humanity or below the humanity. So, for the existence of the human being the
existence of the society is required and for the existence of the society the existence of
the system which provides the justice to the public is required.

30
Kamleshwar Nath ‘Deficiencies in Court Procedures-Remedies 1999

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