14

The prosperity of a nation depends upon the existence of law and order which

is the primary function of the state. The quality of civil society depends upon the

performance of the state in discharging its basic function. The need for an evolving

criminal justice administration was felt in a plural and democratic society having

ethnic minorities and diversities. The fast changing socio-economic and political

environment has created tremendous systematic stresses and strains, challenging the

very stability of the system.

In India, in ancient times, the administration of justice was necessary for the

preservation and the protection of Dharma. The justice was administered with the

help of purohita and there has been elitist bias throughout the country in the

administration of justice. Similar has been the case in medieval period when the

invaders in the country, specially the Mughals, regulated justice to preserve and

protect the values of Islam. They treated differently people of different religious

beliefs. Likewise, the British rulers looked at the judicial system as an instrument to

uphold the colonial rule in India. The criminal justice

administration in India has witnessed numerous shifts in implementation of the laws.

The feudalist bias could be observed in the Dharma, in the Islamic law and the

colonial law. The guiding principle in the criminal law has been rotating around the

type of ruler, the objectives behind the rule, and the customs that the rulers followed.

In modern times, the law has procedures in built in the system. The justice has

become costly and beyond the reach of poor. Complicated for an ordinary person to

understand and is much time consuming. Moneyed men and those wielding power can

get the justice. Intentionally or unintentionally the law is so made that it has

developed bias towards the poor‟s, who in fact cannot go to the courts and get justice.

The elitist bias has entered all walks of life and influenced the Criminal Justice

15

administration.

The judicial institutions have existed in the country since time immemorial. In

every age, there have been different types of crime and different types of punishment

for offences. This pinpoints that the objectives of the criminal justice administration

have been changing from time to time and from one period of history to another. It

may be of interest to the students of the criminal justice administration to look closely

into the changes which have taken place owing to political and economic changes

during different phases of the history.

Criminal Justice is the system of practices, and organisations, use by National

and local governments, directed at maintaining social control, deter and controlling

crime, and sanctioning those who violate laws with criminal penalties. The primary

agencies charged with these responsibilities are law enforcement (police and

prosecutors), courts, defence attorneys and local jails and prisons which administer

the procedures for arrest, charging, adjudication and punishment of those found

guilty. When processing the accused through the criminal justice system.

The method of dealing with crime is commonly known as the criminal justice

administration. Once a certain action occurs, it is the function of the criminal justice

administration to determine whether that action has violated the rights and liberties of

individuals or not and, if it has, then to take the steps necessary to rectify imbalance

created by the criminal act. The criminal justice administration, thus, is designed to

address only one dimension of the crime problem: justice: In performing this function,

the criminal justice administration necessarily adopts an exclusively post-oriented

approach focusing on past criminal actions. The need for criminal justice

administration was felt because state has considered it appropriate to enforce the

standard of human conduct so necessary to protecting individuals and community. It

16

seeks to fulfill its goal of protection through enforcement by reducing the risk of

crime and apprehending prosecuting, convicting and sentencing those individuals who

violate rules and law promulgated by society.1

The criminal justice administration one of the most important organ of the

constitutional democracy to protect peoples‟ rights as well as the interest of the state.

The principal objectives of the criminal justice system and its administration are to

enforce rule of law and order, convict the offenders committing crime and

rehabilitating the violators of law in the society with the help of correction system of

justice. For the attainment of these objectives, a network consisting of the police, bar,

judiciary and correctional services constitute the criminal justice system. Since the

criminal law provides the basic framework for the whole criminal justice

administration, it is also considered as a component of the whole system.2

NATURE OF CRIMINAL JUSTICE ADMINISTRATION

Criminal Justice dispensation system is as old as mankind itself. It is often said

that the crime and the man were born together, with the development of the society.

The criminal justice administration prevalent in the country affects mostly the poor

section of the society as both the victim and accused constitute about 90% per cent of

the litigants involved in the criminal litigation system.3 The criminal justice is the

system of practices, and organizations, used by national and local governments

directed at maintaining social control, deter and controlling crime and sanctioning

those who violate laws with criminal penalties. The primary agencies charged with

these responsibilities are law enforcement police and prosecutors, courts defence

1 N.K. Dutta, Origin and Development of Criminal Justice System in India, Deep and Deep

Publication, New Delhi, 1990, p.12. 2 Alan Bent and Ralph R. Russum, The Criminal Justice System: The Police, Court and Correction,

Harper and Raw Publication, New York, 1976, p.172. 3 R.P. Sethi, “Criminal Justice: Problems and Challenges”, The Indian Journal of Parliamentary

Affair, Bangalore, January 2001, p.23.

17

attorneys and local jail and prisons which administer the processing of the accused

through the Criminal Justice Administration.4 More than 1000 years prior to the mid-

twentieth century, the victim of crime in our society- and in the administration of

justice has been ignored. Reflection of this nature is heard perhaps more often today

than ever before, thus it points to the direction, which is new to the criminal justice

administration of devolving countries.5

The jurisprudence of ancient India, which was essentially Hindu-ruled, was

shaped by the concept of Dharma as outlined in the various manuals explaining the

Vedic scriptures such as a Purans and Smritis.6 The king had no independent

authority but derived his powers from „Dharma‟ which king was expected to uphold.

The distinct between a civil wrong and a criminal offence was clear. While civil

wrongs related mainly to disputes arising over wealth.7 The Mauryas dynasty had a

rigorous penal system which prescribed mutilation as well as the death penalty for

even trivial offences.8

The Dharmasahtra code was drawn up by Manu, an important Hindu jurist.

The code recognized assault and other bodily injuries and property offences such as

theft and robbery,9 and during the rule of Gupta‟s dynasty, the judicial hierarchy was

formed. The judiciary was comprised of the guild, the folk assembly or the council

and the king himself. Judicial decisions conformed to legal texts, social usage and the

edict of the king, who was prohibited from violating the decisions.10

4 Samuel Barkar, “Origin of the Contemporary Criminal Justice Paradigm”, American Bar

Foundation Survey, 1992, Justice Quarterly, America,1992. 5 Venugopal Roa, Criminal Justice, Konark Publications Pvt. Ltd., Delhi, 1991, p.21.

6 S. Suparkar, Law of Procedure and Justice in Ancient India, National Book Agency, Delhi, 1986,

p.78. 7 S. Indra, Deva, Growth of Legal System in Indian Society, Allhabad Pustak Kendra, Allahabad,

1979, p.187. 8 T.S. Batra, Criminal Law in India, Mittal Publication, Delhi, 1984, p.4.

9 Manu Smriti, VIII, 18,

10 A.L. Basham, The Wonder that was India, Sedgwick and Jackson, London,1967, p.47.

18

India was subjected to a series of invasions by the Muslims beginning in the

8th

century A.D. and ending in the 15th

century when a mixed race of Parisians, Turks

and Mongols set up the Moghul Empire. Monghul enforced a Mohammedan criminal

law that classified all offences on the basis of the penalty which each (merited). These

included relations (blood for blood); specific penalties (as for theft and robbery) and

discretionary penalties.

India became a Nation under the British who arrived in the early 17th

century

as traders of the East India Company. The company slowly acquired territory across

the sub-continent strictly for commercial operation in the beginning, but gradually

assumed considerable power of governance. Considering the Muslim criminal law to

be irrational and draconian, the company brought about several reforms through a

series of regulations which modified or expanded the definitions of some offences,

introduced new offences and altered penalties to make them more logical and

reasonable.11

The concept of criminal justice administration has widely been used since

1967 when the US President‟s Commission on Law Enforcement and Administration

of Justice Report on „Challenge of Crime in a Free Society‟ were made public. It dealt

with police, bar, bench and correctional services and hence in aggregative form all the

four sub-systems got a nomenclature of criminal justice administration.

An Indian Penal Code (IPC) defining crime and prescribing appropriate

punishments was adopted in 1860. As a sequel to the IPC, a Code of Criminal

Procedure was enacted in 1861 and established the rules to be followed in all stages of

investigation, trial and sentencing. This code was repeated and a new code came into

11

M. Rama Jois, Legal and Constitutional History of India, Uppal Publishing, New Delhi, 1967,

p.225.

19

effect in 1974. These two codes, along with parts of the Indian Evidence Act, of 1872,

form the essence of India‟s criminal law.12

The criminal justice administration is a legacy of the British system. It has

four subsystems. Those being the

Legislature - Parliament

Enforcement - Police

Adjudication - Courts

Corrections - Prison, Community facilities

While the police may be organizationally separated from courts and

corrections, all other components of criminal justice administration are functionally

inter-related. However, the success of the Criminal justice administration depends on

the functioning of each of these components with the common purpose of protecting

the individual/citizens as well as the society against the forces of crime and disorder.13

CRIME AND CRIMINAL JUSTICE ADMINISTRATION

The concept of crime is changing and has changed with the socio-economic

background of the society. It has always depended upon the force vigour and

movement of public opinion and social sanctions in the same country from time to

time. The extent of crime apparently varies among societies and communities and

over time for a given society or community14

“crime” entails the reaction to certain

behaviour as well as the behaviour themselves.15

Even though more than 64 years have passed since independence; we are far

12

R.N. Saxena, Indian Penal Code, Central Law Publication, Allahabad , p .6. 13

Jawahar Lal Dewedi, Evolution of Criminal Justice System, APH Publishing House, New Delhi,

1998, p.28. 14

Johnson, H. Elmer, Crime, Correction and Society, Hougthon Miffin Company, 4th

Edition

,London, 1978, p.7. 15

Morris Janowitz, “Sociological Theory and Social Control”, American Journal of Sociology, USA,

p.98.

20

from being a polished society.16

Administration of criminal justice is a part of

governance and shares the virtues and vices of the government of the day.

Investigation and prosecution of crime constitutes the sole responsibility of the

executive government. In plural, democratic, unequal societies, police power is prone

to abuse and in collective enforcement of the law despite an independent judiciary and

free press. India has been witnessing a steady decline in the standards of criminal

justice administration. Criminal justice administration has been in shambles for quite

some time. The National Police Commission nearly three decades ago documented

the malaise and recommended urgent reforms. However, politics and vested interest

kept reforms at bay. After the Bombay blasts, the government appointed Vohara

Committee which revealed astonishing facts on how the criminal - underworld

controlled the government functioning, making a mockery of the whole criminal

justice administration. The committee revealed that the activities of criminals have

spread crime to international terrorism. They had developed nexus with officials with

a view to take over of the entire administration. The criminal syndicates have

entrenched themselves in governance, politics and public life beyond the

comprehension of ordinary people. It is alleged that the situation is so grave that

nothing less than a drastic surgery can put the system back on rails. It is alleged that

vested interests in government will not allow this to happen. The government will

appoint committees and commissions to buy time or avoid responsibility. Meanwhile

people lose faith in the system and start depending on the emerging criminal elements

themselves for protection and justice. The situation today reflects this dangerous

transition. This kind of alarming perception is reflected in the terms of reference of

16

Rajbir Deswal, “Question of Transparency and Fair Play”, The Tribune, Chandigarh, April 10,

2007, p.2.

21

the committee on reforms on the criminal justice administration appointed by the

government of India on November 24, 2000.17

MAJOR CRIMES

Some of major crimes impacting on society in Punjab are violence against

women, sexual abuse of children, discrimination against the Dalits, economic

offences, corruption in governance, tax-evasion, liquor and drug abuse, robbery,

murder, rioting etc.18

The major cause of these crimes are poverty, illiteracy

burgeoning, population, ignorance, castism, out-dated traditions, communalism,

unemployment, power hungered politicians, criminal-bureaucrat nexus, film based on

sex and violence, inadequate role of police and civil administration and slow pace of

the judicial system.19

The incidence of crime against women has been showing an alarming

increasing trend even after six decades of independence. The atrocities against women

are increasing.20

“Rape is the worst form of cruelty against woman, harassment and

ill, treatment of wife. Cruelty against women has crossed all the barriers of caste,

class and religion. In domestic sphere, crime like dowry torture dowry death,

abetment to suicide, wife battering etc., are mostly perpetrated against women.

Working class women, in-spite of their earning capacity, are still victimized by dowry

seekers. At workplace, they are also vulnerable and fall prey to the anti-social

elements.21

17

N.R. Madhana Menon, “Criminal Justice Reforms: A Fresh Look on Malimath Committee

Recommendations”, The Indian Journal of Constitutional and Parliamentary Studies, Vol. 39, No.

1-4, The Indian Institute of Constitutional and Parliamentary Studies, New Delhi, 2006, pp.1-2. 18

Sudesh Kumar, “What the New Government Should Do”, The Tribune, Chandigarh, April 10,

2007, p.6. 19

Prakash Singh, “Crime, Politics and Governance”, Seminar 502, June 2001,Delhi, p.46. 20

Ratna Kapoor, “Sexcapades and the Law”,Seminar 505, September, 2001,Delhi, p.41. 21

Ram Ahuja, Violence against Women, Rawat Publications, Jaipur , 1998, pp.18-28.

22

Today most of the modern democratic industrial societies are haunted by the

spectra of rising crime, which poses a serious threat to the life, property, peace and

comfort of the people. In affluent countries of the west, crime is increasing in much

faster rate than growth of population. India is an exception, though the rate of increase

is slower when compared to that of many of the affluent countries of the west.22

POLICE AND CRIMINAL JUSTICE ADMINISTRATION

All civilized societies accept police as the central agency of the criminal

justice administration. Police is vested with powers of law enforcement, which is a

condition precedent for the maintenance of law and order.23

The quality of police

force determines the quality of the society and governance. The role of police in

criminal justice administration in any society is significant because the policeman is

the first to arrive on the scene. He applies law in a specific given situation and frames

a legal scene on the basis of which the later legal battles are fought by the learned

counsels. As a investigating officer, he collects facts, evidence and witnesses and all

other materials which materially influence the process of truth searching in the

establishment of crime.24

The primary responsibility of the police is to protect the

citizens against violent violations of law or civil liberties like murder, rape, arson,

grievous hurt, suicide, cruelty or vandalism, leading to damage of public or private

property so that people could lead honourable life in society. The other agencies of

criminal justice enter the scene to examine that innocent citizens may not get trapped

in and adequate punishment is administered to the guilty or accused, when the police

22

National Crime Records Bureau, Crime in India, Ministry of Home Affairs, New Delhi, 1992. 23

H.L. Packer, “The Police and the Community”, Stanford Law Review, Vol. 22, Boston (London),

1969, p.1314. 24

R.K. Raghvan, “Reforming Criminal Justice Systems”, Frontline, Vol. 20, Issue 2 New Delhi,

January 2003, p.6.

23

apprehended as a suspect.25

JUDICIARY AND CRIMINAL JUSTICE ADMINISTRATION

Justice to common man is the primary objective of the legal mechanism.26

The

credibility of judiciary depends upon the delivery of justice to the common man in a

speedy, impartially and in an economy manner. The main function of Administration

of Criminal Justice is performed by the criminal law courts comprising of magistracy

and the Court of Session. The Supreme Court and the High Courts have only appellate

jurisdiction in criminal cases. These courts are generally engaged in dispensing

abstract and even handed justice in terms of principles set forth in an absolute law. It,

therefore, follows that the court must impart justice within the limits of the law so as

to maintain uniformity and impartiality in the determination of guilt and punishment

of the accused. Generally, all criminal courts possess in inherent power. All such

powers as are necessary to do right and to undo wrong in the course of administration

of justice on the principle of common law embodied in the maxim. The basic defect of

our Criminal justice administration including judiciary seems to be that it is heavily

loaded against poor. The system grinds down the poor and the helpless mercilessly

and leaves the affluent and resourceful persons of political background conveniently.

It is against the basic norms of the rule of law which stands on to strong planks of

equality before of law and equal protection of law affecting the prompt and cheap

justice.27

It is observed in judicial system that many a times, people lose at one stage,

25

P.D. Sharma, Police, Polity and People of India, Uppal Publishing House, New Delhi, 1981, p.79. 26

Tanuja Singh, Criminal Justice: Objectivity and Reforms, The Indian Journal of Public

Administration, Vol. LII, No. 4, Indian Institute of Public Administration, New Delhi, October-

December, 2006, p.11. 27

Upendra Baxi, The Crisis of Indian Legal System, B.R. Publishing House, New Delhi, 1981, p.43.

24

but they get benefited at the other one by doubling the tasks.28

This has negatively

affected the credibility of judicial system. In other words, credibility has a direct

linkage with accountability. An effective accountability leads to an impressive

credibility. If the law fails as an instrument of punishment and deterrence, violence

erupts unabated. The main reason of the loss of judicial credibility more particularly

at grassroots level is due to rising rampant corruption in the temple of justice, delay in

getting justice, complicated procedure, criminal-politician nexus etc., jeopardizing the

independence of judiciary.29

It is being said that the confidence of common people in the judicial system is

a definite indication of „social integration‟. Conversely, it may prove to be precursor

of disintegration, chaos and instability. Hence it becomes the duty of the state system

to make arrangements so as the credibility of the judiciary must not get eroded rather

function as a tool of social engineering. The harmony of communities is not attained

by the authority of law. It may not be out of place to mention that the justice alone can

bring the feelings of fair play and equity and guarantee rights to the individual white

preserving his dignity and for this, basic need is of an impartial, independent

judiciary, simple laws, disciplined bar, speedy and cheap trial and judges with

adequate facilities, favourable service conditions and perks. This is high time that

efforts should be made in making the judicial system credible one.

PRISON AND CRIMINAL JUSTICE ADMINISTRATION

The Prisons Administration is an essential part of the totality of criminal

justice administration in any country. The twin objectives of the prison department are

reformation and rehabilitation of the prisoners on their release so as to bring them in

28

R.R. Rajgopal, Violence and Response, Uppal Publishing House, New Delhi, 1988, p.208. 29

H.R. Khanna, The Judicial System, The Indian Journal of Public Administration, Vol. XVI, No.

24, Indian Institute of Public Administration, New Delhi, 1980, p.21.

25

the mainstream.30

The administration of prison in India is the sole responsibility of the

states. All prisons are managed by the state government or by union territory

administration. The central government is largely concerned with policy formulation

and planning services. In each state, the head of the prison administration is an

Inspector-General who is usually a police officer. He has a few Deputy-Inspector-

Generals to look after the jails in each of the various geographical ranges into which

the state is divided.31

The Union Government has literally no responsibility of modernizing prison

and their administration. Even five years plans, prepared by the Planning Commission

and approved by National Parliaments offered a very low priority to the criminal

justice area in general and prison. The press very seldom highlights the empirical

realities and even the intelligent public opinion seems little concerned about

modernizing the prisons.32

Thus the Union Government has failed to draft a coherent

and forward looking national policy for prison administration.33

In the present situation of state management of jails, most of the states have

jail administration service, recruited from the open market and then trained in

specialized job of managing the prisons. As specialist, they stay within the services,

but lack promotion opportunities and other incentives. Due to lack of promotion

opportunities, the state is unable to attract the best talent in jail services. Moreover the

professionalization and specialisation being fairly low, the jail administration in the

30

R.K. Goyal, Reform in Jail Administration: Perspectives and Prospects, New India Publishers,

Chandigarh (Sahibabad), 1992, Preface. 31

R.K. Raghvan, World Facklrook of Criminal Justice System, Uppal Publishing House, New Delhi,

2000, p.6. 32

Satayam Mukhopadhyay, Administration of Juvenile Correctional Institution: A Comparative

Study of Delhi and Maharastra, Sterling Press, Delhi, 1974, p.249. 33

R. Bruce Jacob, Prison Discipline and Inmates Rights, Sarkar and Sons, Calcutta, 1985, p.154.

26

states are highly demoralized and even corrupt.34

Jails are overcrowded with prisoners

who are not properly treated by jail authorities. The prisoners get treatment from

dispensaries of old design; eat unhygienic food made in ill-equipped kitchens. The

committee on prisons reforms identified the glaring deficiencies in the existing prison,

including poor living condition for prisoners, congestion in jails, inadequate

communication networks and security layout inside the prisons, lack of segregation of

convicts leading to psychosomatic problem among them. The correctional services in

jails need to be improved.35

Correction as a part of Criminal Justice Adminiastration should contribute to

public safety by exercising the safe and effective custody and control of prisoners by

monitoring and managing offenders in the community and by actively encouraging

and assisting offenders to become law abiding citizens.36

INTERRELATIONSHIP WITHIN THE CRIMINAL JUSTICE

ADMINISTRATION

The Criminal justice administration is obviously complex and interdependent.

Although, the components of the criminal justice administration are organizationally

separate, but they are functionally interrelated. Neither the police the courts nor

correctional agencies can perform their tasks without directly affecting the efforts of

the others. Although they are in general agreement that the major goal of the criminal

justice administration is reduction of crime through the use of procedures consistent

with protection of individual liberties they are in frequent disagreement on the

specific means for achieving that goal and on what to do when set of means conflicts

34

Jayatsna Shah, Studies in Criminology and Probation in India, Halstred Press, Bombay, 1973,

p.282. 35

S.M. Diaz, Police and Correction; Problem and Perspectives, Deep and Deep Publication, New

Delhi, 1997, p.182. 36

www.pmg.org.

27

with another.37

The Administration of Justice in ancient time was necessary to preserve and

protect Dharma and King was responsible for it. Indeed during this period there was

conspicuous absence of any literature indicating the economic order. However, the

references do show that during Vedic period, the thrust was on happy living. This led

to the shift in policy in Criminal justice administration in developing criminal law

relating to property offences. A peculiar feature of Criminal justice administration

during this period was that discrimination was observed in awarding punishment

according to Varna-dharma.38

The period between 1200 AD- 1768 AD was much disturbed because of

infighting among the kings, Muslim invasions and arrival of Britishers in the country.

The British rule was responsible for developing systematic criminal justice

administration in India. However, the British rulers were also responsible to drain the

wealth of the country and systematically destroying the economy. This was further

destroyed by the natural calamities in the country by way of famine. The

discriminatory, protective and ad hoc arrangements in the British policy could be

observed to uphold the colonial rule in the country. The rulers created separate legal

systems for different category of people, including on religious lines. The courts

became costly and out of reach of the poor. The courts during British rule became a

place of corruption, bribery etc.39

After Independence, Indian Constitution provided for an inbuilt system of an

37

J.P.S. Sirohi, Criminology and Criminal Justice Administration, Allahabad Law Agency,

Allahabad, 1995, p.26. 38

D.R. Singh Evolution of Indian Criminal Justice System: Influence of Political and Economic

Factors, Indian Journal of Public Administration, July-September 1994, Vol. XL, No.3,New Delhi,

p.394. 39

D.R. Singh Evolution of Indian Criminal Justice System: Influence of Political and Economic

Factors, Indian Journal of Public Administration, July-September 1994, Vol. XL, No.3,New Delhi,

pp.394-395.

28

independent judiciary. The Supreme Court, High Courts and other courts are parts of

the same structure in the country. The supreme position enjoyed by the court

particularly as the final interpreter of the „Constitution‟ has always been a thorn in the

eye of the legislature. The courts accept the procedure laid down in Article 368 to

amend any part of the Constitution but it rules that the legislature cannot do away

with it following veto of the Supreme Court. The legislature later amended Article

368 itself to assert its supremacy over the Supreme Court. The Supreme Court has

reacted in Indira Gandhi Vs. Raj Narayan, in Minarva Mill Vs. Union of India and

other cases and brought out that Parliament cannot amend the basic structure of the

Constitution and opened new grounds for Judicial Review. Parliament has also

interfered at least once in the appointed of Chief Justice of the Supreme Court of

India. Recently several Acts have been passed to tackle the economic problems of the

country.40

It may finally be said that the politico-economic situation in the country

influences the Criminal justice administration in several ways.

REVIEW OF LITERATURE

M.S. Parmar41

traced the history of police administration from ancient India to

post-independence period. He highlighted the emerging problem of police

administration both at national level and state levels. He analysed the various

components of the administration of criminal justice system in India.

S.K. Chaturvedi42

emphasized the need of criminal justice system in the

society to protect social value and to ensure fair play and justice to all so as to

strengthen the philosophy of equity, fairness and the rule of law. He also analysed the

40

Ibid 41

M.S. Parmar, Problem of Police Administration, Reliance Publication Hall, Delhi, 1992. 42

S.K. Chaturvedi, Role of Police in Criminal Justice Administration, B.R. Publishing Corporation,

New Delhi, 1998.

29

stress and strains of existing socio-economic and political environment and challenges

being faced by the criminal justice system in general and police in particular. He

advocated the need of harmony in the functioning of all the agencies of criminal

justice system making people aware of the complexities of the functioning of these

agencies.

Dalbir Bharti43

made an in-depth study of the Constituent Assembly Debates.

He realised that the framer of the Indian constitution assigned a heavy responsibility

to the criminal justice administration in not only preventing and punishing criminal

but also in maintaining the unity and integrity of the nation. After the enforcement of

the Constitution, the criminal justice administration got loaded with many additional

responsibilities such as enforcing newly enacted social laws protecting the democratic

rights of people and facing emerging problem of communal riots and terrorism. As a

result, while relentlessly striving for maintenance of public order, the criminal justice

administration seem to have been able to achieve desired results in keeping crime

under control and delivering speedy criminal justice to the people.

N.R. Madhava Menon44

has depicted the status of criminal justice

administration in India. He said that in spite of independent judiciary and free press,

India has been witnessing a steady decline in the standard of criminal justice

administration. He has also analysed the recommendation of Vohara Committee,

which revealed astonishing fact on how criminal underworld controlled the

government functioning, making a mockery of criminal justice system. He has also

analysed the recommendations of Malimath Committee on criminal justice

43

Dalbir Bharti, The Constitution and Criminal Justice Administration, APH Publishing, New Delhi,

2002. 44

N.R. Madhava Menon, “Criminal Justice Reform: A Fresh Look on Malimath Committee

Recommendation”, The Indian Journal of Constitutional and Parliamentary Studies, Vol. 39, No.

1-4, The Institute of Constitutional and Parliamentary Studies, New Delhi, January-December

2005

30

administration. He suggested that a federal law has to be enacted to deal with crimes.

Prabhat Chandra Tripathi45

narrated his experience as a police officer in

curbing crime against women in Orissa. He was quite socked at the gradual increasing

trend of crime against women over the past few years. He devoted his study to find

out new ways and means to suggest measures for eradication of criminal exploitation

of mother community.

Ronald J. Waldren46

focused on criminal justice system especially the police.

Police Department, in particular, is one of the most visible community agencies and is

often in the “limelight” of the community scrutiny and evaluation. He said that the

other component of criminal justice system such as courts and correctional institutions

also influence the type of relations between the system and community. The police

officers which, in their face-to-face contact with the public, interpret, translate, and

enforce social control policy. The police role ultimately has the greatest impact on

maintaining good relations between the criminal justice system and the community.

B.V. Trivedi47

expressed the view that prison administration is an essential

part of the totality of the criminal justice in any country. He felt that there is a need to

modernize the jail administration in India. Modernization involves development of the

capability of the infrastructure and the apparatus and humanization and sensitization

of the entire administrative machinery and its approaches and attitudes. He suggested

that prison administration required a periodical review and reorientation in

consonance with emerging social ideals and developing institutional requirements.

45

Prabhat Chandra Tripathi, Crime against Working Women, APH Publishing Corporation, New

Delhi, 1998. 46

Ronald J. Waldren, The Criminal Justice System: An Introduction, Hargthan Miffin Company,

(London), 1978. 47

B.V. Trivedi, Prison Administration in India, Uppal Publishing House, Delhi, 1987.

31

S.P. Srivastava48

traced the evolution of human rights in India. He has also

analysed the provision of many International Declaration on Human Rights concluded

at United Nation level. He said that the human rights relevant to the administration of

criminal justice derive sustenance from the constitution and gain strength from the

creative interpretation of the Supreme Court.

Ashok Kumar Dasai49

discussed the various issues like suppersession, transfer

and non-confrontation of judges, departure from established procedures for

appointment of judges. He expressed the view that independence of judiciary is at

stake due to interference of the executive. He suggested that judges should be

appointed without any direct or indirect influence of the executive.

S.P. Sathe50

made an attempt to explain the concept of administrative law as it

has been developed by the courts, legislature, government and semi-government

department in India. He expressed the view that law is essentially evolutionary and

teachers of law must have emphasised on how law responds to the needs and

aspiration of the society. He has made an attempt to examine the existing laws and

made suggestions for effective enforcement of laws.

Sanjay K. Kaul51

expressed the view that the delay in disposal of judicial cases

by courts is the greatest problem. People have lost faith in the judicial system because

of the delay in the disposal of cases. He identified the various reasons for the delay in

the disposal of cases. The number of cases required to be disposed off by a judge at

any level in India is probably one of the highest in the world. He wanted that the

judicial community should play a very vital role in curtailing the undesirable conduct

48

S.P. Srivastava, “Human Rights and Administration of Criminal Justice”, IASSI Quarterly, Vol.

17, No. 2, New Delhi, 1998. 49

Ashok K. Desai, “Assaults on the Judiciary”, Economic and Political Weekly, Vol. XIII, No. 18,

Bombay, April 30, 1977. 50

S.P. Sathe, Administrative Law, Third Edition, N.P. Tripathi Pvt. Ltd., Bombay, 1979. 51

Sanjay K. Kaul, “Delays”, Seminar No. 325, New Delhi, 1988.

32

of the litigants and some of lawyers. He suggested that the courts procedure should

also be simplified in order to prevent delay.

V.R. Krishna Iyer52

examined the views of founding fathers of the constitution

who had laid down for us a constitutional jurisprudence of judicial power but the

integral component of the judicial accountability had not been designed with the sense

of principled pragmatism. As a result, the escalating misconduct of judges has often

gone barring, the extreme measure of impeachment the law is silent, so much so that

one might well say that the accountability of the judiciary is the vanishing point of

jurisprudence. This void, unless completely covered by well thought out legislation, is

bound to undermine the democratic credibility of the judiciary.

P.M. Bakshi53

has made an attempt to define criminal law and delineated its

role. He has also identified some serous problems which criminal justice system is

facing at present due to its expending role in the present context. He expressed the

view that the future of the criminal justice system does not lie merely in the hands of

judiciary or the police. The law-makers and the bureaucracy and the general public as

well as socio-economic planners, have also very important role to play.

D.R. Singh54

traced the evolution of criminal justice system in India from

early Vedic times to present times. He has examined the present system of

administration of justice and law in India, which had the legacy of the British

government. He has also expressed the view that the Law Commission should review

the system of judicial administration in all its aspects and suggests ways and means

52

V.R. Krishna Iyer, “Judicial Accountability to the Community: A Democratic Necessity”,

Economic and Political Weekly, Vol. XXVI, No. 3, Bombay, July 27, 1991. 53 P.M. Bakshi, "Problems in Criminal Justice Administration", Deep and Deep Publication, New

Delhi, 1998. 54

D.R. Singh, “Evolution of Indian Criminal Justice System: Influence of Political and Economic

Factors”, The Indian Journal of Public Administration, Vol. XL, No. 3, Indian Institute of Public

Administration, New Delhi, July-September 1995.

33

for improving it, making it speedy and less expensive. He has also examined court-

legislature relationship. He concluded that politico-economic situation in the country

influence the Criminal Justice System in many ways.

S.K. Parchauri55

has made an attempt to analyse various principles of natural

justice. He regarded natural justice as an essential ingredient of administrative law. It

is the cornerstone around which modern jurisprudence and administration of law and

justice has been reared and is fundamental principle of justice and fair play. He has

also discussed the various factors that play a very significant role in the

operationalisation and maintenance of natural justice in the administrative action to

bring it to the level of Dharma.

Ashok Mukhapadhya56

traced the system of administration of justice in India,

since ancient time to Manu. He focussed three judicial institutions at grassroots level

in India i.e. Lok Adalat, Family Court and Nyay Panchayats. He has narrated the

experience of West Bengal, only while analysing organisation, nature, jurisprudence

and impact of these institutions. He suggested that these institutions may be given a

fair trial.

Justice Rama Jois57

highlighted the main characteristics of ancient Indian

states. He expressed the view that supremacy of law, the cornerstone of modern

democratic government was the basis on which the edifice of ancient administration

was build up. He analysed the various laws that regulated the conduct of individuals

and their enforcement through officers and servants of the state. He also described the

55

S.K. Parchuri, “Natural Justice and Ethics of Administration”, The Indian Journal of Public

Administration, Vol. XLI, No. 3, The Indian Institution of Public Administration, New Delhi, July-

September 1995. 56

Ashok Mukhapadhya, “India‟s Grassroots Judiciary”, The Indian Journal of Public

Administration, Vol. XLV, No. 3, The Indian Institute of Public Administration, New Delhi, July-

September 1999 57

Justice Rama Jois, Seeds of Modern Public Laws in Ancient India Jurisprudence, IInd Edition,

Eastern Book Company, Lucknow, 2000, p.234.

34

pattern of governmental functions within various departments to look after specific

items of work. He also analysed the various aspects of justice delivery system in the

ancient Indian states. He also made an attempt to examine the manner in which the

ancient Indian legal system functioned.

Marudhar Mrudhul58

has made a humble attempt to examine the role of

judiciary in the constitutional history of India. The Indian constitution had clearly

delineated the powers and the duties of legislature and of the executive and to some

extent the judiciary too, but so far judiciary is concerned, the powers vested in

Supreme Court and High Courts have been left untrammelled. He held the opinion

that court‟s powers of judicial review of all governmental actions has promoted

administrative accountability in the system of governance. He expressed the view that

court in India had never overstepped their authority for which India must feel proud in

the annals of human history.

G.C. Singhvi59

has suggested co-ordination between the different agencies of

the criminal justice system (police, prosecution, executive magistracy, judiciary,

prison etc.) not only at the district and state levels but also at the national level. At the

district level, all heads of these agencies should meet periodically and sort out mutual

problems. He suggested that at the national level, there should be a Criminal Justice

Commission, which should be a permanent body like Law Commission.

Andrew Ashworth60

made an attempt to examine the most controversial areas

of the entire criminal process: the pre-trial stage, taking as his starting point the

58

Marudhar Mridhul, “In Defence of Judiciary‟s Unique Role”, Mainstream, Vol. XXIV, No. 20,

New Delhi, April 20, 1996. 59

G.C. Singhvi, “Some Aspects of Reforms in Police Administration”, The Indian Journal of Public

Administration, Vol. XXXI, No. 3, Indian Institute of Public Administration, New Delhi, July-

September 1985. 60

Andrew Ashworth, Criminal Process: An Evolution Study, Oxford University Press, New York,

1998.

35

detention of suspect in police custody. He also examined six key issues in the pre-trial

process: the question of suspects, cautioning of offenders, prosecutorial review,

remand decisions, made of trial decision and plea bargaining.

H.S. Sandhu61

tried to analyse statistically the effect of short term

imprisonment on inmates. He in his first sample of two hundred convicts of Districts

Jail, Faridkot found that in the absence of a treatment programme in a prison, the

prisoner hostility during his stay in the prison increases towards the police, convicting

court, warden and the witness who disposed against him. During his study, he also

presented a sample of 100 long term prisoners, drawn from different jails of the state.

He found that the impact score (short term and long term institution) in respect of

delinquency, severity of values and hostility is in the same direction.

Vidhya Bhusan62

examined the working of prison administration in the state of

Uttar Pradesh. He made an attempt to classify the prisoners on the basis of discipline,

education, health care and prison labour. He has also examined the existing

legislations governing prisons and has emphasised the need of introducing new

legislations. He suggested for the creation of a research cell under the Inspector

General of Prisons to assess the efficacy of the treatment method. He holds that the

success of treatment can be judged only from its results.

S.P. Srivastava63

presented in detail the problems of community of prisoners.

He focussed upon the inmates grievances that arise out of prison officer‟s exercise of

authority and other function related to prison‟s working. He also examined the role

performance of the inmates and the staff in field of reformation and rehabilitation and

gave valuable suggestions for bringing improvement in prison administration.

61

H.S Sandhu, A Study on Prison Impact, Publication Bureau, Panjab University, Chandigarh,1968. 62

Vidhya Bhusan, Prison Administration in India, S. Chand and Company, New Delhi,1970. 63

S.P. Srivastava, The Indian Prison Community, Pustak Kendra, Lucknow, 1977.

36

Joseph E. Scott,64

made an attempt to examine controversial issues at various

stage of criminal justice system, beginning with type of crime, focussing on police,

the courts and finally imprisonment and its alternatives. He also examined the various

theories accounting for the structure of organised crime and looks in-depth at four

organised crime enterprises: gambling, drugs, labour racketing and legitimate

enterprises. He argued that prohibition policies of the United State‟s Government

concerning alcohol, drugs and gambling have been criminogenic and, indeed, the

greatest contributor to the growth of criminal groups in American society. Of those

three vices, he argued that drug trafficking has grown to be the largest and most

profitable organised criminal enterprise. In other words, much of the strength of

organised crime may be attributed to federal drug prohibition policies.

J.C. Curry65

stated that the outstanding problems of police administration are

rioting, dacoity and to combat the terrorist organisation. The problem of communal

rioting is a political problem and thus needs political solution.

P.D. Sharma66

has observed that at both district and state levels, the state

police organisation suffers from organisational disequilibrium, lack of requisite

agencies and other physical facilities. He stated that due to financial constraints, the

modernisation of police equipments, wireless system, forensic aids, training

programmes and housing facilities for the personnel could not be provided. He has

suggested that the pace of modernization of state police setup should be enhanced in

such a manner that a satisfactory state of modernization attained by the close of

century. The expenditure on an armed police should be reduced and the state police

64

Joseph E. Scott and Travis Hiraschi, Controversial Issues in Crime and Justice, Sage Publication,

New Delhi, 1988. 65

J.C. Curry, The Indian Police, Faber and Faber Ltd, New Delhi, 1952. 66

P.D. Sharma, “Indian Police in the States”, The Indian Journal of Public Administration, The

Indian Institute of Public Administration, Vol. XIX, No. 22, New Delhi, 1976.

37

budgets be so organised as to have more and more of senior positions to make the

district police, officer-oriented rather than constable oriented. The offices of the

superintendent of police and sub-inspector should be reorganised in terms of their

routine workload.

Justice V.R. Krishna Iyer67

said that a country in which majority of people

belong to the weaker category, has to evolve new principles of jurisprudence, rules,

regulation and laws and canons of justice and new instruments to protect the weaker

individuals and groups, so that freedom may not be the monopoly of some. He

describes the rules of law geared to the rule of justice whereby each individual and

community may have the opportunity to unfold its personality in the political, social

and economic, must become a reality.

Vasudha Dhagamwar68

made an attempt to examine Indian Penal Code which

has been established for the protection of people. She held the opinion that in India

the most of the laws that affect of the lives of men and women, are criminal in nature.

These laws are maintained for the unity and integrity of the nation and also people.

She examined large number of recent judgements in which character and sexual ethics

played very important part. She critically examined the outcomes of these types of

cases particularly in the context of interpretation of the Indian Penal Code. She argued

that evolution of law is generally made to serve the interest of the upper classes who

wield power. In short, law serve power and where it fails to do so, it may fail all

together.

Mohit Bhattacharya69

has stated that inadequate police manpower has

adversely affected the police-people ratio and the city protection against crimes and

67

Justice V.R. Krishna Iyer, Justice at Crossroads, Deep and Deep Publication, New Delhi, 1992. 68

Vasudha Dhagamwar, Law Power and Justice, Sage Publication, New Delhi, 1992. 69

Mohit Bhattacharya, “City Police Management”, The Indian Journal of Public Administration,

Indian Institute of Public Administration, Vol. XXI, No.24, New Delhi, 1978.

38

others offences. He has also highlighted many other organisational problems

including the police-magistracy relationship. He suggested that the police organisation

should be pro-active and not re-active. The organisation must respond to critical

changes that has been brought by urbanisation to increase its efficiency.

S.K. Ghosh70

hold the opinion that the police function in a democratic society

is complex. It is becoming increasingly difficult for the police force to hear the voice

of the community at large which is crying out for aid, relief, or redress of

inadequacies and infringement of basic civil rights due to political interference of

politicians in the functioning of police administration. The working and services

condition are required to be improved and adequacy of manpower strength and

modern equipments will call far a comprehensive examination. The unwarranted

political interference in the working of the police and politicisation of the rank and

file lead to various malpractices is seriously affecting the moral of the force adversely.

K.K. Sharma71

identified large number of organisational deficiencies like

outdated concept of administrative accountability, defective recruitment procedures,

unproductive role performance, lack of integrity and status, absence of career

development prospects, inadequate training etc. These deficiencies are adversely

affecting the administration. There is a considerable political interference in the

working of the police for unlawful ends. Development of the police system in general

has been hampered due to inadequate financial allocation. There is hostility among

the police, public and press. It is, therefore, necessary that police at the district level

must be manned by personnel‟s who are known for honesty and integrity. It needs

qualitatively, structurally and quantitatively changes. He suggested that police station

should be strengthened properly and always keep in good trim and political parties

should evolve a code of conduct and issue a self denying ordinance not to make police

70

S.K. Ghosh, Police Interment, Light and Life Publishers, New Delhi, 1981. 71

K.K. Sharma, Law and Order Administration, National Book Organisation, Delhi, 1985.

39

as their plaything. He also suggested that adequate allocation of finance should be

made for better policing.

B.R. Sharma72

felt the need to have an independent, authoritative and impartial

judiciary which can up-hold the values of the rule of law and inspire public

confidence. This can be made possible only if we are able to attached the best legal

brain of the country to the bench. He also emphasised on the appointments of judges

and to save judges from unwarranted criticism and maintain high standard of judicial

behaviour and ombudsman type of institution. He also examined other important

issues like judicial appointments, transfers, promotions, remuneration and retirements

etc. He also suggested many reforms including the establishment of a judicial staff

college and the creation of an All India Body for appointment and transfer of judges

not only of the higher judiciary, but even for those working in the subordinate courts.

Kumkum Chandra73

conducted a study on Tihar Jail, New Delhi to examine

the problems of inhuman treatment being meted out to prisoners and the rampant

corruption in jails. She gave an insight into the deplorable condition in Indian jails

and through lights on unauthorised punishment being awarded to prisoners. He has

also explored the causes of mal-administration such as an insufficient

accommodation, unhygienic condition, substandard food, etc. She has also critically

examined the role and attitude of jail officers towards prisoners.

Naresh Kumar74

examined the various rights of the prisoners which have been

conferred by the judicial decision and jail manuals. A detenue has a right to physical

protection against arbitrary intrusion by the police. He also made a comparative study

72

B.R. Sharma, Judiciary on Trial, Deep and Deep Publications, New Delhi, 1989. 73

Kumkum Chandra, The Indian Jail: A Contemporary Document, Vikas Publishing House Pvt.

Ltd., New Delhi, 1983. 74

Naresh Kumar, Constitutional of Prisoners, Mittal Publication, Delhi,1985.

40

of rights of prisoners in U.K., U.S.A. and India.

S.M.N. Raina75

examined the issues of confrontation between the judiciary

and the Parliament with reference to Golak Nath‟s case, the bank nationalization, the

privy purses and the fundamental rights. He also analysed emergency provisions of

the constitution with particular reference to the internal emergency which had been

proclaimed in India on June 26, 1975. He gave suggestions for preventing the

government from measuring emerging provisions. He has further dealt with the

independence of the judiciary with particular reference to Smt. Indra Gandhi‟s

election case.

N.S. Saxena76

has systematically dealt with all agencies of criminal justice

administration viz., police judiciary, and bar, correctional institutions which are

important and integral part of the system. He also examined major component which

are involved in the maintenance of law and order. He has also enunciated dozen

principles of maintaining law and order not only in India but everywhere in the world.

K.C. Shukla77

has stated that functionaries of criminal justice system have

been endowed with a very important responsibility. The reform is needed in the

procedures of recruitment, training operation as well as the attitudes, ideas, motives,

prejudices etc. of the jails officials. The system needs introspection. He held the

opinion that the issues conforming the criminal justice system in the counterparty

period call for a comprehensive understanding and resultant modification in the

attitudes of functionaries.

Amrendra Mohanty and Narayan Hazary78

traced the evolution of prison

administration in India. While giving an account of a number of commission and

75

S.M.N. Raina, Law Judges and Justice, Vedpal Law House, Indore, 1979. 76

N.S. Saxena, Law and Order in India, Abhinav Publication, New Delhi, 1987. 77

K.C. Shukla, “Criminal Justice: Emerging Issues and Challenges”, The Indian Journal of Public

Administration, Vol. XXXI, No. 3, Indian Institute of Public Administration, New Delhi, July-

September 1999. 78

Amrendra Mohanty and Narayaan Hazary, Prison Administration in India, Sage Publication,

Delhi, 1989.

41

committees appointed in India since 1836 to examine jail administration, they have

dealt in detail the prison reform that took place in Orissa. The government is seriously

reviewing the reports of the Mulla Committee (1980-83) and Justice Mahapatra

Committee for implementation. They are of the view that if society has to be

protected effectively against criminal aggression then all agencies involved in crime

prevention have to cooperate and put their heads together because prison reforms only

aim at reforming criminals, which constitute a small part of crime prevention.

B.K. Roy79

has observed that there is nothing seriously or basically wrong

with the Indian police, its organisation and structure but there is a lot of aberration by

corruption as like the other public services. He stated that police recruitment is done

from the existing social milieu and the prevailing norms and values of the society thus

find there entry into the police force. He suggested that corruption in the police can be

fought in a big way by giving exemplary punishment to those policemen who abuse

their power and authority to make quick money but this will only be possible if public

comes to participate in the process wholeheartedly and help to break the nexus

between dishonest police officers and unscrupulous politicians.

G.K. Valecha and Subha Venkataraman80

have highlighted the problem of

indiscipline, job security, corruption, political interference and poor interaction in the

police. To overcome these problems, they have recommended to introduce scientific

selection and training procedure, attractive salaries and services benefits, effective

performance appraisal with proper feedback improved control and communication

equipments, modernisation and better police community relations. All these aspects

have much relevance with the effective functioning of the police.

79

B.K. Roy, “What Ails the India Police Today”, Decision, Indian Institute of Management,

Calcutta, April 13, 1986. 80

G.K. Valecha and Subha Venkataraman, “Improving Efficiency and Ensuring Impartiality of the

Police Force”, Vikalpa, 1986, Vol. 2, No. IX, Indian Institute of Management, Ahmedabad, 1986.

42

K.M. Mathur81

has inferred that the instructional staff of most of the police

training institutions in India is inadequate. Posting of police training institution is

regarded as a punishment because of loss of power and privileges and, therefore,

usually police officer of the right type and aptitude are not posted to training

institutions. Trainers do not get job satisfaction in training institutions because there is

also non applicability of training to actual field work and non-acceptance of the

teachings of the trainers by the trainees. He suggested that modern methods of

instruction are not very popular with the trainees. Expenditure on police training,

percentage wise is low to the total costs of police-budget of the state. He suggested

that police training in India needs to be revitalized and reorganised, so that it may

produce efficient and competent police officers. Training tools and techniques should

conform to the training needs and training objective. He also suggested that state

governments and central government should provide support for the training in terms

of adequate allocation of resources. Top police leadership should also provide full

support and help to police training institution by posting efficient and good

administration and by providing other requisite infrastructure.

R.K. Goyal82

made an attempt to examine the jail administration in India in

general and the Punjab in particular. He discussed the concept of imprisonment,

reformation and the rehabilitation of offenders. He also traced in detail the history of

jail administration and described the organisational pattern of jail administration. He

also highlighted the various changes brought in this field under the provision of

different acts passed by the government to bring reformatory changes in jail

administration. He discussed the relationship between the jail administration and the

81

K.M. Mathur, Administration of Police Training in India, Gian Publishing House, Delhi, 1987. 82

R.K. Goyal, Reforms in Jail Administration: Perspectives and Prospects, New India Publishers,

Chandigarh, 1992.

43

inmates, prison community and district administration and others problem having

direct bearing on the functioning of prison in Punjab.

Nitai Roy Choudury83

has stated that correction institution has been defined

as a social process by which modern society deals with law-breakers. As a member of

community in a temporary handicapped status, he viewed that correction stand for

positive programme of reformation of social devils for their ultimate reintegration as

useful member of the society. He examined the scope of the reformation of prisoners

under the existing prison laws in India. He suggested that prison management must

play an important role in reforming the prisoners so that they can become ideal

citizens. He also felt the need to improve their skill, habits, attitudes and approaches

towards life.

S. Venugopal Rao84

examined the problem of crime and criminal justice in the

context of rising violence in our society and growing disenchment with the traditional

legal and administrative mechanism designed to contain them. He discussed two

competing explanation of crime, one relates to consensus of values in society which is

incorporated in criminal law which defined antisocial behaviour, while the other

relates to law itself which is considered as the end result of a continuing conflict

between interest groups and the state authority.

K.M. Mathur85

has identified certain factors like inadequate strength of the

police forces, lack of training, low morale due to politicking, rampant corruption,

frequent transfers of police chiefs, employment of outmoded tools, methods and

techniques by the police, lack of popular public support due to poor police image and

83

Nitai Roy Choudhury, Indian Prison Law and Corrections of Prisoners, Deep & Deep Publication,

New Delhi, 2002. 84

S. Venugopal, Perspective in Criminology, Vikas Publication House, Pvt. Ltd., New Delhi, 1988. 85

K.M. Mathur, “Law and Order Administration with Special Reference to Terrorism”, The Indian

Journal of Public Administrative, Vol. XXI, No. 35, Indian Institute of Public Administration,

New Delhi, 1984.

44

undemocratic police behaviour etc., responsible for non-effectiveness of police

administration. He recommended that administration of law and order in India needs

to be improved. Proper orientation and training should be imparted to all who are

engaged in the administration of law and order. He suggested that people should be

educated about their duties and responsibility related to administration of law and

order. Mass-media, education system, political parties, public opinion leaders and the

nation, as a whole, should all help the police administration to promote law and order

situation so that country may achieve social economic and cultural progress along

with social justice.

Amarjit Mahajan86

observed that the women role in policing remain

ambiguous due to organisation apathy, opposition from the male incumbent‟s, societal

negative reactions, lack of committed policewomen and lack of opportunities for

women to occupy positions of authority in the police organisation. The absence of

congenial setting for role performance has resulted in stresses and strains for the

incumbents of the policewomen force. He stated that jobs in police administration are

not considered attractive for women. It has yet to gain recognition and acceptance

from the policemen and society at large. It can however, be made more attractive if

the nature of work is made to resemble to that of a social worker.

Prafulluh Pandhey87

stated that during the past quarter century organised crime

has become a more complex phenomenon, both in developed as well as developing

society. Today major crime groups have developed strong networks, spreading their

anti-social activities in many countries, talking advantages of open market and of

government. He suggested various legislative and administrative measures to contain

86

Amarjit Mahajan, Indian Policemen, Deep and Deep Publication, New Delhi, 1982. 87

Praffulh Pandhy, Organised Crime, Isha Books, Delhi, 2006.

45

rising organised crime over the globe.

Albert, R. Robert88

made an attempt to examine the steps taken by the

government to provide various services to help the victims of violent crimes. He also

gave suggestions to improve the service delivery system meant for victims of violent

crimes. He also felt the need to provide immediate short term psychosocial treatment

to crime victims.

S.K. Ghosh89

made a survey of women in policing in sixty eighty countries

around the world. He analysed many issues relating to women policing which are well

suited to fulfil policemen‟s role. He also analysed the statistical profile of police

women, their salaries, education and the cultural norms and psychological self-

concepts that have produced the problem confronting police-women. He also analysed

the problem of neglected and unwanted children. He also examined the role of various

women movements which had spread in different parts of the world for raising the

question of protection of women and children in police custody and realising the

authorities to recruit women in police administration. He said many democratic

countries have now recruited women in police administration and entrusted duties to

deal with women and children.

K. Alexander90

critically examined the performance of police in the state of

Karela. He argued that the functioning of the police in the Karela shows a sense of

distrust and antipathy among the people. There is a wide gap between the perception

of the people as police and their performance. He stated that two attempts had been

made in Kerala to reform police administration since the inception of the state of

Kerala on November 1, 1956. The Karela police Reorganization Commission was

88 Albert. R. Robeht, Helping Crime Victim, Sage Publication, New Delhi, 1990. 89

S.K. Ghosh, Women in Policing, Light and Life Publishers, New Delhi, 1986. 90 K. Alexander, Police Reforms in India, Discovery Publishing House, New Delhi,

2006.

46

constituent in 1982 and the second was the internal ad-hoc and piecemeal committee

constituted at the initiative of the head of the Police Department. The

recommendations made by both the committees had not been implemented.

Deol Mukherjee91

made two empirical cases studies to examine the magnitude

of crime against women in developed and developing world. The first study focussed

on how socio-economic parameters and environment could play a role to promote

crime and disorder in cities. The second study focussed on remedial measures to

contain rising crime. She also explained some laws on rapes, harassment and sexual

assault in both India and Canada. She felt that such laws had proved counter

productive and more sensitivity on the part of policy makers to ensure the rights of

women. She argued that both government and the media should find ways and means

to strengthen legislation to protect the “vulnerable” women.

Carol Smart92

presented a feminist critique of classical and contemporary

theories of female criminality. She also examined the types of offences committed by

female offenders. She point out certain fallacies inherent in a “reliance”, on official

statistics and shows deficiencies of the currently popular argument that female

emancipation cause increases in female crime rates. She dealt with the study of

prosecution and rape and considered the treatment of women as offenders and victim

by the criminal law, police, courts and the penal system. She examined the question of

lenient treatment for female offenders. She concluded that both women and girls are

in some important instances, actually discrimination against in our legal and penal

system. She discussed the relationship between the female criminality and mental

illness and also dealt with some of the problem inherent in developing a feminist

91

Deol Mukherjee, Women and Urban Crime, Kalpaz Publication, Delhi, 2005. 92

Carol Smart, Women Crime and Criminology: A Feminist Critique, Routledge and Kegan Press

Ltd, London, 1977.

47

criminology.

U.C. Jain and Jeevan Nair93

stated that in any system of government the

judiciary plays a major role in the quality of governance of the country. They stated

that if the judiciary is given real independence and full freedom to scan executive

decision and policies in the light of the constitution of the country concerned, it makes

good governance and to a legal degree, prevent exploitation of the poor and weaker

sections of society. They described that India is fortune to have such a system of

government where the judiciary is respected not only by the executive wing of

government but also by the people. There have been many occasions in India when

the supreme court of India has been approached to decide on disputes between the

centre and the state governments. Many a times, the policies and decisions made by

executive have been questioned by a person or a section of society in the court of law.

There are many grave instances when the Supreme Court of India has taken suo moto

cognisance of certain actions of the executive.

S.K. Ghosh94

observed that the safeguards provided in the Constitution and

criminal laws and the directions issues by the courts to the executive for the protection

of prisoners in police custody has been systematically violated. The old prejudice and

public distrust against the police far from being declining, have surfaced periodically

in severity after independence. Most of the disturbing developments over the years

have shown that policemen, by and large have become corrupt. The nexus between

politicians, gangsters and police has developed which has adversely affected law and

order situation in the country.

93

U.C. Jain and Jeevan Nair, Judiciary in India, Pointer Publishers, Jaipur,2000. 94

S.K. Ghosh, Torture and Rape in Police Custody: An Analysis, Ashish Publishing House, New

Delhi, 1993.

48

S.R. Myneni95

revealed that law cannot make any distinction between men and

relating to women. All laws are equally applicable to both men and women. He

examined certain enactments that are intended to upright the dignity and status of

women in society. She said that enactments relating to women are two kinds – one

equally applicable to both men and women and another applicable to women only.

She also analysed various major burning issues like dowry torture, dowry death, wife

battering. Rape, sexual harassment etc. and suggested some measures to eradicate

these types of heinous crimes.

Shubra Ghosh96

examined the role of society in checking the menace of

criminals. She also made an attempt to examine the existing behavioural pattern of

women convicts confined in female jail. She presented a theoretical framework for the

formulation of an effective strategy towards the care treatment and rehabilitation of

female offenders in the Indian setting.

Trilok Nath97

has observed that the present type of training is entirely useless

for the policemen with regard to the philosophy of training; the idea should be to

inject a new soul in the working force. He has viewed that there is corruption in the

police force and has suggested for decentralisation of power in the police

administration with a view to end favouritism and nepotism.

Shriram Maheshwari98

has identified the major grievances of the policeman as

inadequate emoluments, lack of housing, long hours of duty, use of the policemen for

personal work of the officer, harsh treatments accorded to the policemen, insecurity of

job and inadequate promotional opportunities. The present machinery for redressed of

95

S.R. Myneni, Women and Law, Asian Law House, Hyderabad, 2000. 96

Shubra Ghosh, Female Criminals in India, Uppal Publishing House, New Delhi, 1986. 97

Trilok Nath, The Police Problem, Vikas Publications, Delhi, 1983. 98

Shri Ram Maheshwari, “Unionism in the Police: Redressal of Police Personnel‟s Grievances”,

Indian Journal of Public Administration, Vol. XXXIV, No. 24, Indian Institute of Public

Administration, New Delhi, 1978.

49

grievances is inadequate and the personnel have started forming police associations

and resorted to agitations leading to indiscipline. Therefore, indiscipline and defiance

of authority in the police must neither be encouraged nor tolerated. The machinery for

redressal of grievances must be taken seriously by the senior hierarchy and complaints

made in these forums must be processed quickly and imaginatively so that they

inspire the confidence of the rank and file.

K.C. Shukla99

revealed that functionaries of criminal justice have been

endowed with a very important responsibility. The reforms are needed in the

procedures of recruitment, training operations as well as the attitudes, ideas, motives,

prejudices etc., of the jail officials. He provoked that the system needs introspection.

He examined various issues confronting the criminal justice system in the

contemporary period and called for a comprehensive review and resultant

modifications in the attitude of functionaries.

S.P. Sangar100

has described that crime is as old as society itself. He described

various types of crime i.e. violent crime, organised crime, white collar crime, sexual

crimes as well as the concept of punishment. He stated that in medieval India,

imprisonment like others forms of punishment viz., internment banishment, whipping,

mutilation of offenders‟ limbs, impalement, execution, royal wrath, was the common

form of punishment. He suggested some measurement to eradicate such type of

heinous crime and such type of punishment. So that given punishment to criminals

may change attitude and behaviour of the offenders in a positive way.

99

K.C. Shukla, “Criminal Justice: Emerging Issues and Challenges”, Indian Journal of Public

Administration, Vol. XXXII, No. 3, Indian Institute of Public Administration, New Delhi, July-

September, 1985. 100

S.P. Sangar, Crime and Punishment in Mughal India, Sterling Publishers, Delhi, 1967.

50

Jaya Tilak Guha Roy101

discussed the nature and the pattern of crimes against

women with the help of statistical data. He took a serious view of the rising crime

against women which requires a serious thinking at the level of policy-makers. He

critically examined the role and the function of all police station/ cells. He suggested

number of measures to improve their performance. He also suggested the need to

utilize the services of voluntary women organisations in containing such type of

crimes and emphasised on setting up the women commissions at the centre and state

levels.

K.D. Gaur102

discussed the problem areas of judicial system and delayed

justice, rampant corruption at the different levels of judicial structure. He describes

the post independent socio-economic, culture and political development has also

subscribed to the erosion of the credibility of the judicial system as such instead of

functioning as a social engineer and integrator, the judiciary is tend to add to social

and legal chaos which ultimately speaks on its accountability factor.

Begum, S. Mehtaz103

examined the police administration at the district levels

from the superintendent of police to the constable and from the state police

headquarters to the police station in an organic unit. He also critically examined the

police administration at the organisational structure and police personnel management

with reference to recruitment, training, promotion, morale and also suggested the

remedial measure to strengthen the police administrations.

SCOPE OF THE STUDY

The present study was confined to the analyze of Criminal

101

Jaya Tilak Guha Roy, Police and Crime against Women: Emerging Issues and Challenges, B.R.

Publishing Corporation, New Delhi, 1996. 102

K.D. Gaur, Criminal Judicial System and Social Defence, APH Publishing House, New Delhi,

1998. 103

Began S. Methaz, District Police Administration, Mittal Publication, New Delhi, 1995.

51

justice administration in Punjab from 1990-2000.The research study

undertaken by researcher was unexplored and no research has been

taken earlier on Criminal justice administration in Punjab. Attempt

has been to fill the gap in the existing literature. The study examined

the role of enforcement agencies such as police, judiciary and Prison

Administration. The report of various Commissions and Committees

such as a National Police Commission, Malimath Committee,

Padmanabhaiah Committee established by Government from time to

time has been analyzed in detail. The recommendations of Second

Administrative Reforms Commission were also examined. Efforts have

also been made to review the working of Criminal justice

administration of Punjab with a view to offer concrete suggestions.

OBJECTIVES OF THE STUDY

1. To build up conceptual framework for the study.

2. To trace the historical evolution of criminal justice administration in Punjab.

3. To evaluate the working and role of the enforcement agencies dealing with

criminal justice administration of Punjab.

4. To examine the relationship among the enforcement agencies of criminal justice

administration in Punjab.

5. To examine the various loopholes in the existing framework of criminal justice

administration in Punjab.

6. To examine the recommendations of various Committees/ Commissions

constituted by Government for reforming criminal justice administration.

7. To give suggestions for strengthening the criminal justice administration in

52

Punjab.

HYPOTHESES

1. The existing laws meant for prevention of crime are outdated and not in tune with

the changing needs of the time.

2. The Criminal justice administration is comprised of different agencies like Police,

Judiciary, and Prison Administration. These agencies of criminal justice

administration are inter-related because the working of one agency affects the

others.

3. Criminal justice administration has been ineffective in dealing with crime in

Punjab.

4. There is lack of coordination and harmony between the police and prosecution.

5. Corruption, defective procedural laws, callous attitude of officials, lack of faith of

public, faulty and slipshod investigation are the main factors responsible for the

inefficiency of criminal justice administration.

RESEARCH METHODOLOGY

For the completion of this research work, primary as well as secondary

sources of information were tapped. The secondary sources were used to factual data

which includes books, journals, articles and newspapers. It also includes

Constitutional Assembly Debates on Criminal Justice Administration, Annual Reports

of the Ministry of Home Affairs, Annual Reports of the Department of Justice,

Ministry of Law and Justice, Report of the National Police Commission, various

judgments of Supreme Court and High Courts, The reports of National Police

Commission, Justice Malimath Committee, Padmanbhaiah Committee and Second

Administrative Reforms Commission were also examined and evaluated. The primary

sources of study consists of directly obtained information collected through direct

discussion and personal meetings with police officials, judicial officers and jail

53

officials. The information gathered their view point‟s regarding the problems and

performance of criminal justice administration in Punjab.

CHAPTERISATION

The study has been divided into eight chapters:

In the first chapter, attempt has been made to build conceptual framework of

the study. An exhaustive review of literature has also been undertaken. This chapter

also contains hypotheses, objectives of the study, scope of the study. The

methodology used in completing the research work has been explained.

The second chapter traced the evolution of criminal justice administration

from the Vedic period to the present with special focus on the growth of the

institutions like police, courts and jail administration. All the three components of

criminal justice administration were found to be well knit during that period.

In the third chapter, attempt has been made to examine the constitutional

provisions relating to criminal justice administration in India. Endeavour has also

been made to find out whether the objective envisaged by the framers of the

Constitution to establish a just society in India by ensuring fair and speedy criminal

justice administration has been achieved in India after 64 years of independence.

In the fourth chapter, the organizational pattern of criminal justice

administration of Punjab has been examined. In this chapter, the organizational

structure of all the three components viz; police, judiciary and jails administration has

been analyzed.

Attempt has been made in the fifth chapter to examine the working of three

major components of criminal justice administration in Punjab.

The sixth chapter examined the crimes scenario in Punjab from the period of

1990 to 2000. This chapter also evaluates the performances of Police, Judiciary and

54

Prisons.

The seventh chapter examined the recommendations of various Committees/

Commissions like the National Police Commission, Padmanabhaih committee,

Malimath Committee, which has been constituted by the Government time to time.

This chapter also examined the recommendations of the Second Administrative

Reforms Commission, which had been constituted by the Government for reforming

the working of the police and judiciary in India.

The last chapter sums up the main findings of the study. It also incorporated

suggestions for reforming criminal justice administration.

If men were angels, no government would be necessary. Every civilized

society in India has evolved a criminal justice administration. Its evolution has been

influenced by socio-economic and political conditions prevailing during different

phases of the history of India. Accordingly, the objectives of the criminal justice and

methods of its Administration changed from time to time and from one period of

history to another. To suit changing circumstances, the rules introduced new method

and techniques to enforce law and administer justice.

In early society, the victim had himself (as there was no state or other

authority) to punish the offender through retaliatory and revengeful methods; this was

naturally, governed by chance and personal passion.104

Even in the advanced Rig-

Vedic period, there is a mention that punishment to the thief rested upon with the very

person wronged.105

Gradually, individual revenge gave way to group revenge as the

man could not have grown and survived in complete isolation. For his very survival

and existence, it was necessary to live in groups. Group life necessitated consensus on

104

Mrinmaya Chaudhary, Languishing for Justice, Mittal Publication, Delhi, 1975, p.4. 105

Keith A. Berriedale, “The Age of the Rigveda”, in R. Rapson (ed.), The Cambridge History of

India,vol.1, Standford Printing Press, London, p.87.

55

ideals and the formulation of rules of behaviour to be followed by its members. These

rules defined the appropriate behaviour and the action that was to be taken when

members did not obey the rules.106

This Code of Conduct, which governed the affairs

of the people, comes to be known as Dharma or law. In course of progress, man felt

that it was more convenient to live in society rather than a small group. Organisations,

based upon the principle of blood relationship yielded, to some extent, to larger

associations – the societies.

In the very early period of the Indian civilization, great importance was

attached to Dharma. Everyone was acting according to Dharma and there was no

necessity of any authority to compel obedience to the law. The society was free from

the evils arising from selfishness and exploitation by the individual.107

Each member

of the society scrupulously respected the rights of his fellow members and infraction

of such rights rarely or never took place.108

The following verse indicates the

existence of such an ideal society:

“There was neither kingdom nor the king;

neither punishment not the guilty to be punished.

People were acting according to Dharma; and

thereby protecting one another.”109

However, the ideal stateless society did not last long. While the faith in the

efficacy and utility of Dharma, belief in God and the God fearing attitude of people

continued to dominate the society, the actual state of affairs gradually deteriorated. A

situation arose when some persons began to exploit and torment the weaker sections

106

Ibid. 107

M. Rama Jois, Legal and Constitutional History of India, Kanishka Publishers, New Delhi, 1988,

pp.575-576. 108

S. Suparkar, Law of Procedure and Justice in Ancient India, Uppal Publishing House, Delhi, 1986,

p.78. 109

P.V. Kane, History of Dharmasastra, Vol. 1, Nag Publishers, Delhi, 1930, p.12.

56

of society for their selfish ends. Tyranny of the strong over the weak reigned

unabated. This situation forced the law abiding people to search for a remedy. This

resulted in the discovery of the institution of King and establishment of his authority

over the society, which came to be known as the state.110

As the very purpose of

establishment the state and the authority of the King was the protection of the person

and property of the people, the King organised a system to enforce the law and punish

those who violated it. This system later came to be known as criminal justice

administration.111

EVOLUTION OF CRIMINAL JUSTICE ADMINISTRATION DURING

VARIOUS PERIODS

Although the Indus Valley civilization suggests that an organised society

existed during pre-vedic period in India, traces of the criminal justice administration

can only be found during the vedic period when well-defined laws had come into

existence. The oldest literature available to explain the Code of Conduct of the people

and the rules to be followed by the King, are Vedas. Therefore while discussing the

evolution of the criminal justice system, the history of India covered from the Vedic

period onwards dividing it into three major periods – Ancient period, medieval period

and Modern period.112

Ancient period extends for nearly 1500 years before and after the end of

Hindu era and beginning of the Christian era. Medieval period begins with the

Muslim era with the first major invasion by Muslims in 1100 A.D. to seventeenth

110

V.C. Sarkar, Epochs in Hindu Legal History, Hoshiarpur Book Agency, Hoshiarpur, 1958, p.102. 111

Kautilaya, The Legal History of India, C. Jamnadas and Company, Bombay, 1984, p.33. 112

Dalvir Bharti, The Constitution of India and Criminal Justice Administration, APH Publishing

Corporation, New Delhi, 2002, pp.10-11.

57

century. Modern period begins with the consolidation of the British era in the middle

of the eighteenth century and lasts for nearly two hundred years.113

CRIMINAL JUSTICE ADMINISTRATION IN ANCIENT INDIA

The ancient period of Indian history is known as Hindu period because of the

prevalence and dominance of Hindu law.114

The social system is a bye-product of

various forces which appears in different forms. Socio-legal culture is a mirror of a

people‟s overall development. The fact that Indian sociology was spiritually oriented

is evident from the law codes of ancient India. Rich philosophical tradition and

literature, of which legal culture is only a segment, are the proof that the ancient

Indian mind was constantly engaged in the pleasers of understanding, the problem of

superior life. Therefore judicial concept in ancient Indian jurisprudence has to be

understood in its social and spiritual context.115

The elements of state administration signifying rule by a King with help of his

advisors or assistants may be traced back to the early Vedic period. In the Rig-Veda,

the King is called Gopa Janasya or protector of the people. This implies that King

charged with the maintenance of law and order. According to the Dharma sutras and

the Arthashastra, it was the duty of the King to ensure the security and welfare of his

subjects.116

Each state divided into provinces and provinces into divisions and districts.

For each province, Governors were appointed. Districts officer were entrusted with

the judicial and administrative functions. According to Kautilya‟s Arthashastra, the

administration of towns was entrusted to the Nagarka. He had not only to look after

113

H.R. Khanna, Judiciary in India and Judicial Process, Deep and Deep Publication, New Delhi,

1985, p.4. 114

Shiv Kumar Dogra, Criminal Justice Administration in India, Deep and Deep Publications, New

Delhi, 2009, p.15. 115

J.D. Khosla, Our Judicial System with Constitution of India, The University Book Agency,

Allahabad, 1992, p.11. 116

Government of India, Ministry of Information and Broadcasting, The Gazetteer of India, Vol. II,

Publication Division, Patiala House, New Delhi, 1997, pp.145-145.

58

the maintenance of law and order but had also to enforce various building and sanitary

regulations and to prepare census of the citizens.117

Apart from cities and towns, there were a large number of villages. The village

was the basic unit of government. Each village consisted of a Village Headman and

Village Council or Panchayat. The office of the Village Headman was mostly

hereditary. In the villages, he represented the King‟s administration.118

The most

remarkable feature of the early vedic polity was the institution of poplar, assemblies,

of which two, namely, the Sabha and Samiti deserve special mention. In the later

vedic period, the Samiti disappeared as popular assembly while the Sabha became a

narrow body corresponding to the King‟s Privy Council.119

The beginning of the regular system of state judicial administration may be

traced to the pre-Mauryan age. The Mauryan period (325-185 B.C.) fills a gap

between two great epochs of administration of criminal justice in ancient India,

namely that as mentioned in the Dharma sutra on the one hand and that of Manu‟s

code on the other. The few references in Megasthenes‟ Indica to the Penalties for

offence current in Chandragupta‟s time breathe the spirit of the penal law of the

proceeding period. The old division of urban and rural judiciary was continued in

Ashoka‟s reign. The few references in the records of Mauryas point to the

continuance of the state police of the proceeding period. The jail administration of the

earlier times appears to have been continued.120

The Guptas (C.A.D. 320-550) created afresh a system of administration on

imperial lines after the downfall of the Mauryan Empire. The civil administration

117

Ibid. 118

V.D. Kulshrestha, Landmarks in Indian Legal and Constitutional History, Arihant Publication,

New Delhi, 1995, pp.4-6. 119

Ibid. 120

Shraddhakar Supakar, Law of Procedure and Justice in Ancient India, Deep and Deep Publication,

New Delhi, 1986, p.42.

59

apparently was in the charge of the Mantri as before. In the branch of provincial

administration, the Guptas adopted the older models with changed official

nomenclature and some striking innovations. The municipal board consisted of four

members, namely, the Guild-President, the Chief Merchant, the Chief Artisan and

Chief Scribe. This marks a bold attempt to associate popular representatives with

local administration.

After the Guptas, in Northern India, King Harsvardhana (A.D. 607-47) created

a sound and efficient administration. However, on the other hand, the penal law was

marked by a certain degree of harshness in strong contrast to exceptional mildness

under the empirical Guptas.121

Dharmshastras

The Dharmshastras are the earliest types of literature in Sanskrit in which

some detail of the law in the modern sense of the term are available. It may be

presumed that the Dharmshastras were written before the Arthasastra of Kautilya

which was undoubtedly written about 300 B.C. Hence, though no clear-cut limit can

be fixed to the composition of the Dharmshastras, it will not be very far from the truth

if it is said that these works were mainly produced between 100 B.C. and 300 B.C.122

In Dharmshastras, it is interesting to observe that for them crime principally

meant an evil act done with a certain degree of violent attitude. The criminal was said

to be person who without minding the physical or the spiritual effects of his acts was

promoted by the absolute spirit of violence and openly engaged himself in causing,

suffering to others by his acts such as theft, hurt, adultery, etc. For them, offences

against the King were the most serious particularly joining hands with the enemy and

121

Khosla,, n.12, p.25. 122

U.C. Sarkar, Epochs in Hindu Legal History, Vishyesvaranand Vedic Research Institute,

Hoshiarpur, 1958, p.55.

60

they also punished severely those who violated a trust.123

Such offences could be

compared with treason and felony.

All the offences were punishable with fine or imprisonment. Punishment

varied according to whether an offence was against the King or the ruling authority,

or against a person whom the offender owed duty to allegiance or amounted to only

misdemeanours.124

The original conception of crimes in Hindu law have begun with the violation

of religious and social rules followed by elaborate enjoinment of prayashitta. A man

accusing a Brahmin of a crime was deemed to have been committed a similar crime

himself and in case of the Brahmin‟s innocence, his guilty was regarded as doubly

sinful. A man who assaulted a Brahmin with hand or weapon was said to be banished

from heaven for one thousand years; and if blood falls from the body of a Brahmin, he

will lose heaven for a number of years.125

A Brahmin who was not otherwise

permitted to use weapons and arms could do so when his life is threatened, in the

exercise of his right to private defence.

If a man who received or retained stolen property, he was treated as a thief. A

woman who committed adultery with a man of lower caste was caused to be killed by

dogs. The adulter also was to be killed. If the King did not strike or punish the guilty

person, the guilt fell upon him.126

It is quite clear from the above that the earlier

conception of criminal justice administration was blending of religion and law.

The Dharmshastras laid down the law or rules of conduct regulating the entire

gamut of human activity. This necessarily included civil and criminal law. The earlier

works, which laid down the law in the form of sutras, were divided into three classes,

123

Damayanti Doongaji, Law of Crime and Punishment in Ancient Hindu Society, Ajanta Book

International, Delhi, 1986, p.2. 124

Ibid. 125

U.C. Sarkar,n.19, p.62. 126

Ibid.

61

viz. Srauta Sutras, Grihya Sutras, and Dharma Sutras. The Dharma sutra dealt with

civil and criminal law. These Dharma sutras, therefore, can be regarded as the earliest

works on Hindu legal system.127

Kautaliya’s Arthasastra

Kautaliya‟s Arthasastra was considered to be another important and

authoritative source of law during ancient India from the Mauryan period onwards.

Kautaliya also known as Vishnugupta or Chankya, was a Minister of Chandergupta

Maurya (322-298 B.C.). He was given a detailed description of the legal system.

According to Kautaliya, an essential duty of government is maintaining order. he

defines both maintenance of social order as well as order in sense of preventing and

punishing criminal activity. Kautaliya has mentioned law of procedure; the law of

evidence in civil as well as criminal cases; procedure of criminal investigation; and

quantum and method of punishment for various types of offences, prisons, lockups

and welfare of prisoners are also the subject matter of the Arthashastra. Kautaliya has

prescribed Code of Conduct for judges and for the King. However, some of the

provisions in the Arthashastra relating to punishment have also been found to be

interpolations.128

Dhamshastras did not confer on or recognise any legislative power in the

King.129

Under the Hindu jurisprudence, though the law was enforceable by the

political sovereign – the King, it was considered and recognised as superior and

binding on the sovereign himself as is clear from the following verse:

Law is the King of Kings;

127

M. Rama Jois, n.4, p.22. 128

Dalvir Bharti, n. 9, p.17. 129

M. Rama Jois, Legal and Constitutional History of India, N.M. Tripathi Pvt. Ltd., Bombay, 1996,

pp.10-13.

62

nothing is superior to law

The law aided by the power of the King;

enables the weak to prevail over the strong.130

However, the above position changed with passage of time as it came to be

recognised that in case of conflict between the law laid down in the Sruits (Vedas) or

the Smritis and the Dharmanyaya, i.e., King‟s law, the latter prevailed.131

Manusmriti

According to Manusmriti, law owes its existence to God. Manu devoted the

eight chapter of his Smriti mainly to treatment of law consisting of eighteen topics.

All topics divided according to the usages and the institutes of sacred law. When it

was not possible for the King himself to administer justice, personally, he should

appoint a learned Brahmin, for purpose but by no means should be appoint a Sudra.

The fault of an unjust decision is apportioned to the offender, the witnesses, the judge

and the King.132

People of all castes including women may be competent witness

especially in criminal cases. Manu describes different classes of incompetent

witnesses and provides that women should be witnesses for women only and each

class must have witnesses from that class alone; but at the same time, he provides that

any person having personal knowledge of a particular fact may give evidence in that

respect specially on failure of competent witnesses. Manu has also referred to oaths

and ordeals, but has not described them in details. Manu also advocates different

degree of punishment beginning from simple admonition and intermediate with harsh

reproof and fine.133

130

Ibid. 131

The Gazetteer of India, Vol. IV, Ministry of Education and Social Welfare, Government of India,

New Delhi, 1978, p.380. 132

U.C. Sarkar, n.19, p.56. 133

Ibid.

63

Judicial System in Villages

The criminal justice system of ancient India was so organised that every

villager had easy and convenient access to judicial forum. In Vedic society, the

village Samitis and Sabhas were two important instrument of Indian polity. The

Village Council similar to modern Panchayat, consisted of a board of five or more

members to dispense justice to all.134

The administration of justice was largely the

work of these village assemblies or other popular or communal bodies. Village

Council dealt with simple civil and criminal cases. Other criminal cases were

presented before the central court or the courts in towns and district headquarters

presided over by the government officer under the royal authority to administer

justice.135

Police

The first institution of state police may be traced to the pre-Mauryan period.

During the ancient India, police was divided in two wings, namely, the regular police

and the secret police. The regular police consisted of three tiers of officials: the

Pradesta (rural) or the Nagarka (urban) at the top, the rural and urban Sthanikas in the

middle and rural and urban Gopas at the bottom. In the course of his description of the

Pradesta‟s duties, Kautaliya tells how an inquest was held in case of sudden death.

This involved a post-mortem examination of the body as well as thorough police

investigation. In Kautaliya‟s word, the secret police is divided into the categories

namely, the peripatetic and the stationary.136

The Manu Samriti prescribed instruction

for the King to detect offences with the help of soldiers and spies. The Katyana Smriti

mentions of informant and investigation officer. This suggests that an agency like

134

V.D. Kulshrestha, n.15, p.88. 135

Gurkirt Kaur, Criminal Justice System, Shree Publishers and Distributors, New Delhi, 2006, p.40. 136

Mahendra Pal Singh, Crime and Delinquency, UDH Publisher, Delhi, 1983, p.6.

64

modern police existed during that period to assist the King in administration of

justice.137

Crime and Investigation

Violation of criminal law was considered an offence against the state. The

information or complaint about the offence committed by any individual could be

made by any citizen and not necessarily by the person injured or his relatives. The

person, who on his own accord detected commission of offences and reported to the

King, was known as Stobhaka, i.e., informant. He was entitled to remuneration from

the King for giving first information.138

A person who was appointed by the King to detect commission of offences

was called Suehaka, i.e., investigation officer.139

The special responsibility of the

King in the matter of controlling crimes, detection of crimes and punishing the

offenders was stressed in the Many Smriti.

King and Courts

Administration of justice, according to Smritis, was one of the most important

functions of the King. The King‟s court was the highest court of appeal as well as an

original court in cases of vital importance to the state. In the King‟s court, the King

was advised by the Chief Justice and other judges, ministers and elders, and

representatives of trading community. Next to the King‟s court was the Court of Chief

Justice, which consisted of a board of judges to assist him. In town and districts, the

137

Ibid. 138

Robert D. Purslay, Introduction to Criminal Justice, Glancor Publishing Company, London, 1980,

p.8. 139

D.R. Singh, “Evolution of Criminal Justice”, Indian Journal of Public Administration, Vol. XXI,

No.4, Indian Institute of Public Administration, July-September 1994, New Delhi, p.385.

65

courts were presided over by the state officers, under the authority of the King, to

administer justice.140

Jail Administration

Like the institution of state police, Jail Administration has also evolved during

pre-Mauryan period. It was provided that a jail should be constructed in the capital

providing separate accommodation for men and women and it should be guarded. It

was also prescribed that the prisoners should be employed in useful work. This policy

of talking a sympathetic view, as regards person found guilty of offences and

punished with imprisonment imposed on them, was also laid down in the ancient

Indian law.141

The Dharmanaahmantras were charged with the duty of protecting

prisoners from molestation and releasing the deserving ones. The Arthashastra gives a

detailed account of jail administration.142

Punishments

The Dandaniti, i.e., punishment policy, is one of the elaborately dwelt upon

subject in ancient India as it was intimately connected with the administration of the

state. As per Manu, Yajnavalkya and Brihaspati there were four kinds or methods of

punishment during ancient India, namely, admonition, censure, fine and corporal

punishment. Corporal punishment included death penalty, cutting off the limb with

which the offence was committed, branding on the head some mark indicating the

offence committed, shaving the head of the offender and parading him in public

streets. The nature and of punishment were very cruel, inhuman and barbarous.143

Right to Self-Defence

140

M. Rama Jois, n. 4, pp.490-493 141

L.R. Rangarajan, Kautaliya – The Arthashastra, Penguin Book India Ltd, Delhi, 1987, pp.57-58. 142

Ibid. 143

H.R. Bhardwaj, Crime, Criminal Justice and Human Rights, Konark Publishing House, New

Delhi, p.167.

66

Right to self-defence existed during ancient India. The law provided: “A

person can slay without hesitation an assassin who approaches him with murderous

intent. A person has a right to oppose and kill another not only in self-defence but also

in defence of women and weak person who are not in a position to defence

themselves against murderous or violent attack. As per Katyana, no blame is attached

to one who kills wicked men who can also kill a person, but if they have desisted from

their evil act of killing, they should be captured and not killed.144

People’s Participation in Crime Prevention

Failure of duty towards society was taken very seriously. Any person who

fails to render assistance according to his ability in the prevention of crime would be

bashed with his good and chattel. Any owner of a house failing to help another at the

time of outbreak of fire was liable to be fined.145

Double punishment was prescribed

for those who fail to give assistance to one calling for help though they happened to

be on the spot or who ran away after being approached for help.146

Offences by Public Servants

Offences and misconduct committed by police officers, jail superintendent and

other public servant were taken very seriously and severe punishments were

prescribed. It was provided that the judges who passed unjust order,147

or took bribes,

or betrayed the confidence reposed in them, should be banished.148

144

Ibid, 145

Dalbiv Bhari, n.9, p.25. 146

Suresh Chandrapant, Hindu Polity State and Government in Ancient India, APH Publishing

Corporation, Delhi, 1971, p.282. 147

Harihar Prashad Dubey, The Judicial System of India, N.M. Trupathi Pvt. Ltd., Bombay, 1968,

p.76. 148

Ibid.

67

CRIMINAL JUSTICE ADMINISTRATION DURING MEDIEVAL INDIA

Towards the end of 11th

century began the downfall of the Hindu rule. Local

Hindu rulers were attacked and defeated by foreign invaders of Turkish race.

Gradually, old Hindu kingdoms began to disintegrate. The numerous Hindu states,

which took shape from time to time, varying continually in number, extent, and in

their relations with each other, seldom were at peace. The never-ending dynastic wars

and revolutions did not bring about any development of political institutions. No

republics were formed, no free towns were established. An atmosphere of great

mutual distrust was created amongst the contending States which prevented their

political unity against the common enemy. The real weakness in Indian administration

lay in the influence of the great feudatory families whose power and ambition

constituted a perpetual threat to the stability of the Central Government. Hindu

kingdoms also suffered from the prevailing caste divisions.

The numerous raids of Mahmud Ghazni during A.D. 1000 to 1026 had

revealed that India was vulnerable and fabulously rich. After successive invasions by

Ghazni, Mohummad Ghori attacked India, defeated Prithvi Raj, a Rajput King, in the

year 1192 and occupied Delhi. After the conquest of various parts of India, Ghori

returned to Khurasan leaving the Indian campaign in the hands of his slave Qutub-ud-

din-Aibak. After the death of Ghori in 1206, Qutub-ud-din-Aibak established the

Slave dynasty and became the first Muslim King to rule from Delhi. Subsequently,

the Khiljis (AD. 1290-1320); the Tughluqs (AD. 1320-1414); the Syeds (AD. 1414-

1450); the Lodhis (AD. 1451-1526) ruled India as Sultans of the Delhi Sultanate.

Babur defeated Ibrahim Lodhi in the famous First Battle of Panipat in A.D. 1526 and

established the Mughal Empire. The Mughal Emperors ruled India effectively up to

68

A.D. 1707 except the period A.D. 1540-55 when the Suri dynasty established by Sher

Shah Suri was in power.

After the death of Aurangzeb in 1707 the Mughal Empire started declining.

Bahadurshah II was the last Muslim ruler. The Muslim rule in India came to an end

formally in 1858 when the British took over the control of Indian affairs from the East

India Company.

The Muslim polity was based on the concept of the legal sovereignty of the

Shara or Islamic law. The political theory laid emphasis on the fact that all Muslims

formed one congregation of the faithful and it was necessary for them to unite closely

in the form of an organized community. Any attempt to break away from the

organized community was condemned by the religion. All the members of the

community elected the Khalifa or Caliph as the Commander of the faithfuls. It was

made obligatory on all Muslims to owe allegiance to the Caliph who was their ruler.

In India the Sultans of Delhi, though absolute regents, claimed to be the

representatives of the Caliph.

The civil administration during the Muslim rule was headed by the King who

was known as Sultan or Emperor. He was assisted by his Minister (wazir). The

kingdom was divided into provinces (subahs). Each province was composed of

districts (sarkars). Each district was further divided into parganahs. A group of

villages constituted a parganah.

The Muslim rulers emphasized the importance of administration of criminal

justice and introduced reforms to improve the judicial machinery. For the first time in

the country, the Chief Judge was appointed by Qutub-ud-din-Aibak. Balban

introduced the system of espionage to find the truth about the criminals. Sikandar

Lodhi initiated several reforms in criminal justice administration.

69

The judicial reforms of Sher Shah Suri formed a bridge between the Sultanate

period and the Mughal period. He reformed the judicial machinery. Sher Shah Suri

was of the opinion that stability of the government depended on the justice and that it

would be his greatest care not to violate it either by oppressing the weak or permitting

the strong to infringe the laws with impunity. Heads of the Village Councils were

recognized. They were ordered to prevent theft and robberies. In case of robberies,

they were made to pay for the loss sustained by the victim. However, he did not

disturb the village autonomy. Police regulations were drawn up for the first time in

India. The judicial officers below the Chief Provincial Qazi were transferred after

every two or three years.

During the Mughal period, Akbar introduced many reforms in the

administration of justice. He created common citizenship and a unanimous system of

justice for all. Besides, he prohibited slavery, repealed the death penalty clause for

criticizing Islam or Prophet Mohammad, and prohibited the forcible practice of sati.

Jahangir abolished the cruel and barbarous punishments and decentralized the power

of the courts. Shahjahan established the regular system of appeal. Aurangzeb

entrusted the preparation of a comprehensive digest of Muslim criminal law to

eminent Muslim theologians. The digest so prepared was entitled Fatwa-i-Alamgiri.

When the Sultans ruled most of the parts of India from Delhi, a few Hindu

kingdoms also existed in some parts of the country. Among these, the Vijyanagar

Empire, from A.D. 1336 to 1646, was the most famous. Krishnadevaraya was the

greatest of the rulers of this dynasty. He reigned from 1509 to 1529. The example of

Vijyanagar and their system of adjudication of the criminal justice indicate the

functioning of full-fledged judicial system. But during the medieval period of Indian

70

history the criminal justice administration of India was highly influenced by the

Muslim rulers and therefore, the period is generally known as the Muslim period.

Salient features of the Muslim polity and evolution of criminal justice

administration during the Muslim rule in India are discussed below:

Concept of Law

During the Muslim rule in India, Islamic law or Shara was followed by all the

Sultans and Mughal Emperors. Muslim criminal law as applied in India, was

supposed to have been defined once for all in the Quran as revealed to the Arabian

Prophet and his traditional sayings (hadis).

The Muslims followed the principle of equality for men and they had no faith

in the graded or sanctified inequality of caste system. Muslim religion places every

man on an equal footing before God, overriding distinctions of class, nationality, race

and colour. However, this concept of equality was applicable only to the Muslims.

Under the Muslim law, non-Muslims did not enjoy all the rights and privileges which

the Muslims did. They were not treated as equal to Muslims in law and were called

“zimmis”. Their evidence was inadmissible in the courts against the Muslims. They

had to pay an additional tax called „jizya‟ and as regards other normal taxes also they

had to pay at double the rate than what a Mulish paid.

A special feature of the Muslim law was that the Muslim criminal

jurisprudence treated criminal law as a branch of private law rather than of public law.

The principle governing the law was more in the nature of providing relief to the

person injured in civil matters rather than to impose penalty for the offence

committed. It was for the private persons to move the State machinery against such

offences and the State would not suo moto take cognizance of the same.

Source of Law

71

The main source of Muslim law and Shariat was the Quran and Sannah or

Hadith (practise and tradition of the Prophet). A special feature of the Muslim law

was that the Muslim criminal jurisprudence treated criminal law as a branch of private

law rather than of public law. The principal governing the law was more in the nature

of providing relief to the person injured in civil matter rather than to impose penalty

for the offence committed.

During the Mohammedan rule, only the criminal law was largely common to

the Hindus and Muslims with the exception of the application of oaths and ordeals.149

The entire criminal administration of justice was based on principles of Mohammedan

criminal law and the punishments were inflicted upon criminals in accordance with

the provision of that law only.

King

The administration of justice was one of the primary functions of the Sultan.

The monarch was the head of the judicial organisation.150

According to Islamic

jurisprudence, as was the position under the Hindu jurisprudence, the ruler constituted

the highest court of justice. To maintain and enforce the criminal code was one of the

important functions of the King. Being head of the state, he was the supreme authority

to administer justice in his kingdom.151

149

Kirpal Singh Chabra, Quantum of Punishment in Criminal Law in India, Publication Bureau,

Panjab University, Chandigarh, 1970, p.232. 150

V.D. Kulshrestha, n. 15, p.25. 151

Ram Avtar Sharma, Justice and Social Order in India, Intellectual Publishing House, New Delhi,

1984, p.82.

72

Police

Policing of the cities and towns was entrusted to Kotwal and of the

countryside to Kaujdars. Judiciary and police were placed under the Chief Sadr and

Chief Qazi, both officers being held usually by the same person. The Mughals had

established the Kotwali system in the cities and Chowkidari system in the villages.

The Court of Fauzdar tried petty criminal cases concerning security and suspected

criminals. Kotwal were also authorised to decide petty criminal cases.152

Courts

Different courts were established to deal with different kinds of cases; courts

were constituted at central capital and at the headquarters of a province, district and

parganah. During the Sultanate period, the court of Diwan-e-Mulzim was the highest

court of criminal appeal. The judiciary and police were placed under the Chief Sadr

and Chief Qazi, both offices being held usually by the same person. At each

provincial headquarters, Adalat Qazi-e-Subah was empowered to try civil and

criminal cases of any description and to hear appeals from the district courts.

Appointment of Judges

Chief Justice and other judges of higher rank were appointed by the Emperor.

Sometimes the Chief Justice and other judges were appointed from amongst the

eminent lawyers. Similarly, provincial and district Qazis were appointed from

lawyers. The selection of a Qazi as a rule was made from amongst the lawyers

practising in the courts.153

Corrupt judicial officers were punished and dismissed.

Every possible effort was made to keep up the high standard of the judiciary.154

Institution of Lawyers

152

Ibid. 153

James A. Inciardi, Criminal Justice, Harcourt Brace Jovanovich Publisher, London, 1987, p.188. 154

Ibid.

73

Litigants were represented before the courts by professional legal experts.

They were known as vakils, the legal profession flourished during the Muslim period.

The lawyers play prominent role in the administration of justice. Two Muslim Indian

code, namely, Fiqh-e-Firoz Shahi and Fatwa-e-Alamgiri, clearly state the duties of a

vakil. Sometimes vakil were appointed to assist poor litigants by giving them free

legal advice. A vaklil had a right of audience in the court. It was expected that the

vakil should maintains high standard of legal learning and behaviour.155

Jails

Prisoners awaiting trial were detained in prisons in the Muslim period of India.

The duties of the Kotwal were to check the number of the persons in the prison and

ascertain their answers to the charges against them. Imprisonment and punishments

was not expressly provided for under the Islamic criminal law and thus there was,

generally no need of prisons as penal instrument. But due to the provision of diya in

that law, many prisoners after conviction had to spend their days of their inability to

pay compensation. Again the discretion left to the Qazi to impose tazir, that is in

offences not categorised under hadd, qisa and diya, enabled him to award

imprisonment, if he so wished.156

Punishments

The punishment for various offences were classified into four broad

categories, viz. (1) kisa, i.e., retaliation which meant in principal, life for life and limb

for limb; (2) diya meant bloodmoney being awarded to the victim or his heirs; (3)

hadd inflected on persons who committed offences against God; (4) tazeer, i.e.,

punishment for the cases not falling under hadd and kisa. The punishment which fell

155

Dalvir Bharti, n.9, p.37. 156

Mrinmaya Chaudhary, n.1, pp.148-149.

74

in this category consisted of imprisonment, corporal punishment and exile or any

other humiliating treatment.157

The type of quantum of penalty to be imposed was

entirely within the discretion of the judge. In criminal cases, a great deal of discretion

was allowed to them and they took a variety of factors into account in awarding

punishment. Punishments prescribed were very cruel. Mutilations of the body was one

type of punishment which resulted in great suffering and gradual death.158

157

Ralph A. Rossum, The Politics of the Criminal Justice System: An Organisation Analysis, Marcel

Dekker Inc. Press, New York, 1978, p.113. 158

Ibid.