Civil and criminal administration of justice; primary and secondary functions of courts

1. Origin and necessity

Salmond defines the administration of justice as “the maintenance of right within a political community by means of the physical force of the State.” In primitive society a person who was wronged took his own revenge, and his kin joined in the feud. The State first regulated private vengeance (fixing the price to be paid instead of blood, the wergild), then replaced it with public justice administered by its own courts.

Why is it necessary? Men are not all just; conflicting interests lead to disputes; and without an impartial authority backed by force, the strong would prevail. Salmond adds that the administration of justice is the primary function of the State, and that a society in which it failed would revert to private war. Hobbes’s state of nature makes the same point.

2. The division into civil and criminal

Every wrong is either a civil wrong or a crime, or both. The test is not the nature of the act but the legal consequence.

• Civil justice enforces rights. Its proceedings end in a remedy for the person wronged.
• Criminal justice punishes wrongs. Its proceedings end in a punishment of the wrongdoer.

The same act may be both. An assault is a crime under the Bharatiya Nyaya Sanhita, 2023 and a tort for which damages lie; defamation is both an offence (section 356 BNS) and a tort; theft is a crime and also conversion.

3. Primary and sanctioning rights; the civil remedies

Salmond distinguishes primary rights (which exist independently of any wrong, such as the right to reputation or to the performance of a contract) from sanctioning rights (which arise from the violation of a primary right, such as the right to damages). Civil justice enforces rights in two ways.

• Specific enforcement of the primary right itself: recovery of land or goods, specific performance of a contract, an injunction restraining a nuisance.
• Sanctional enforcement where specific enforcement is impossible or inadequate:
  • restitution: the wrongdoer gives up a benefit he obtained at the plaintiff’s expense;
  • penal redress: compensation measured by the plaintiff’s loss, which operates as a penalty on the defendant. Damages in tort are penal redress in Salmond’s sense: they punish the defendant as well as compensating the plaintiff.

4. Differences between civil and criminal proceedings

• Object. Civil: enforcement of the right of a person, by remedy. Criminal: punishment of the offender, for the protection of society.
• Parties. A civil suit is brought by the injured person against the wrongdoer. A prosecution is in the name of the State; the victim is a witness, although the Bharatiya Nagarik Suraksha Sanhita, 2023 gives him a role and a right to compensation.
• Nature of the wrong. A crime is regarded as a public wrong, harmful to society as a whole; a civil wrong is a private wrong.
• Standard of proof. Civil: preponderance of probability. Criminal: guilt beyond reasonable doubt, with a presumption of innocence.
• Outcome. Civil: damages, injunction, declaration, specific performance. Criminal: death, imprisonment, forfeiture, fine, and now community service (section 4 of the Bharatiya Nyaya Sanhita, 2023).
• Compromise. A civil claim can be settled or withdrawn at the plaintiff’s will. A crime can be compounded only where the law permits.
• Procedure and courts. Civil: Code of Civil Procedure, 1908, civil courts. Criminal: Bharatiya Nagarik Suraksha Sanhita, 2023, criminal courts.
• Mental element. Criminal liability generally requires mens rea; civil liability often does not.

Salmond’s own conclusion is that the difference lies in the purpose of the proceedings, not in the nature of the act: civil proceedings aim at the enforcement of rights, criminal proceedings at punishment.

5. Primary functions of courts

The primary function of a court is the administration of justice in the strict sense: deciding disputes between parties (civil justice) and trying and punishing offenders (criminal justice). This involves finding the facts, ascertaining the law, applying it, and enforcing the result.

6. Secondary functions of courts

Courts also do work that is not the decision of disputes or the punishment of crimes, but which they are suited to do because of their procedure and their impartiality. Salmond lists the following.

• Petitions of right or claims against the State, which in England could not at first be brought as ordinary actions. In India the Union and the States sue and are sued in their own names under Article 300.
• Declarations of right, where no wrong has yet been done but a right is in doubt: a declaratory decree under section 34 of the Specific Relief Act, 1963; a declaration of legitimacy or of title.
• Administration of property: estates of deceased persons, trusts, the property of insolvents, companies in liquidation, and partition of joint property.
• Guardianship of minors and persons of unsound mind: appointment of guardians and supervision of their property under the Guardians and Wards Act, 1890.
• Recording and creating rights: grant of probate and letters of administration, decrees of divorce and nullity, orders of adoption, registration of documents by courts, and dissolution of firms. The court here creates, transfers or extinguishes a legal status rather than deciding a dispute.

To these modern writers add the law-making function of courts through precedent (Article 141 makes the law declared by the Supreme Court binding on all courts), advisory jurisdiction (Article 143), and judicial review of legislation and executive action.

How this is examined

As a 16- or 10-mark essay: “Explain the civil and criminal administration of justice and its differences” (January 2026, Q.3; February 2025, Q.2(a)); “Explain primary and secondary functions of the court in the administration of justice” (June 2025, Q.2(a)). As a short note: “Secondary functions of court” (February 2025, Q.2(b)). For the first essay give Salmond’s definition, origin and necessity, the remedies, and eight differences in a list. For the second, give primary functions in a paragraph and the five secondary functions with an Indian statute for each.