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Introduction
The concept of Rule of law is that the state is governed not by the ruler or the nominated
representatives of the people but by the law. The Constitution of India intended for India to
be a country governed by the rule of law. The status of the rule of law in India is a
befuddling conundrum. It is important to understand that the efficacy or otherwise of the
rule of law affects, and is affected by, the other three revolutionary factors that we
discussed earlier. The rule of law in India is a unique concept for many reasons. The
Constitution expressly includes certain substantive social and economic goals and mandates
the state to achieve those goals, giving the state a primary role in society. It also envisages
equality not as an empty positivist attribute, but as a substantive concept that includes
social and economic equality. Upendra Baxi observes, 'The Indian ROL [rule of law] stands
here normatively conceived not just as a sword against State domination and violation and
historic civil society norms and practices but also as a shield empowering an encyclopaedic
regime of "progressive" state intervention in the life of civil society.
This dual nature makes it impossible to categorize the Indian rule of law into the straitjacket
of Western theoretical expositions. However, apart from the limited and isolated efforts of
Baxi, no serious effort has been made by Indian academia to understand and provide a
theoretical basis to the rule of law.
Despite the lack of theoretical backing, the usefulness or acceptance of the rule of law has
never been contested. A review of judgments by various courts and the processes that
India's other governing institutions follow will lead us into believing that the law reigns
supreme in the country. It is however in the implementation of the rule of law that the
lacunae are revealed. An analysis of the functioning of the institutions that deal with the
making and implementation of law reveals predominantly a 'rule by law', and at times a
'rule by whim', attitude and approach across all institutions of governance.

Rule of Law
Since the adoption of the Constitution, India has been in a state of a near permanent
dichotomy. On the one hand, institutions and laws required for the proper functioning of
the country in accordance with the rule of law exist on paper, more or less in accordance
with the constitutional mandate. On the other hand, most of these governing institutions do
not function properly and lack the processes, systems, values, and people to function
efficiently, and more importantly, in accordance with law. This dichotomy indicates severe
problems at the very core of India's governance superstructure:

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1. in its principal democratic institutions-Parliament and legislatures -along with the political
parties;
2. in its commitment to its constitutional values and the objectives driving those values;
3. in its resolve to ensure effective performance of the institutions that support and protect
democratic and constitutional values, mainly the judiciary; and
4. in the social and political acceptance of the law.
While the problems are numerous, diverse, and often related to the quality of people
responsible for the functioning of the institutions, there is also a common underlying
reason-a fundamental failure to adhere to agreed norms of functioning, that is, the law. This
failure challenges the rule of law, which has been declared to be part of the basic structure
of the Constitution by the Supreme Court. Interestingly, as discussed earlier, the rule of law
appears to be universally accepted in Indian society as a good value. Judges, politicians
(both in power and outside), bureaucrats, businessmen (domestic and foreign), lawyers, and
citizens all quote the rule of law regularly and extol its virtues. There is, in fact, no dissenting
voice in India on the need to follow the rule of law. Often, people opposing each other rely
on the rule of law to justify their actions and decry the actions of the opposing group.

Theoretical foundation of rule of law

Theoretically, the rule of law is an elusive concept, deeply contested by philosophers,
political scientists, economists, judges, and lawyers. At no point of time have the meaning
and contours of the rule of law been agreed upon, even by people who swear by its
goodness. While the rule of law has been propagated in some form or the other from the
times of Aristotle and Plato, it has not had a continuous and uncontested run. Nearly all rule
of law postulations have originated in some form of political theory, making the rule of law
primarily a political concept rather than a legal one. The meaning and content of the rule of
law is also fiercely debated. Some view the rule of law as a concept that is only different
from that of the 'rule of men', others debate between the rule of law and the 'rule by law'.
Some strongly believe that the rule of law should not influence or make any comment about
the content of the law and is only concerned about compliance with the law; others believe
the content of the law is very important for the rule of law.
Among those who agree that the content of the law is indeed important for the rule of law,
some feel it should only contain negative human rights, while others feel the law should
deal with social, economic, cultural and educational conditions under which a man can fully
realize his aspirations. Many believe the process of making the law is also important to the
rule of law and therefore insist that democracy is an important component, while others
believe democracy is irrelevant and the rule of law can healthily thrive even in an
authoritarian state.

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Tamanaha has summarized the history, evolution, theoretical foundations, and the current
status of the rule of law. The most common form of classifying the rule of law theories is to
divide them into thin and thick theories. Thin or formalist theories do not concern
themselves with the content of the law, instead they are focused on the procedural
attributes that a legal system must have to comply with the rule of law. The most important
of these procedural attributes are: (i) the law must be declared in advance; (ii) all laws must
apply only prospectively; and (iii) the laws must be certain and apply to everyone generally
and equally. Thick or substantive theories go beyond the thin theories and insist that the
laws should contain certain substantive rights, aspects of political morality, and forms of
government in order to comply with the rule of law, as without these rights the rule of law
would be meaningless. Thick theories differ from each other based on the nature and extent
of substantive rights they wish to include.
Thin and thick theories are merely a classificatory tool to understand the crowded
theoretical space. Following the thin and thick theory classification is not necessarily useful
to build a theoretical foundation of the rule of law in India. It is more important to
understand the political and philosophical basis of the rule of law by examining the theories
of Aristotle, Montesquieu, Locke, Dicey, Hayek, Unger, Raz, and others. Judith Shklar has
rightly pointed out that a rule of law formulation is dependent on the political objectives it
seeks to achieve. It is therefore necessary to study the political objectives of the
Constitution to meaningfully develop a theoretical basis of the rule of law in India.
A survey of the major works and debates on the rule of law shows that the difficult
questions in relation to the rule of law operate at two distinct levels. First at a political
philosophy level, where the debates are focused on: (i) the role of the state and its powers,
responsibilities, and relationship with the people who abolish the state and are also
administered by it, (ii) the political, social, economic, and moral values, rights, and choices
that are to be left outside the realm of law and those that ought to be included in the realm
of law, and (iii) the need for meaningful participation of people in the process of making of
the laws in the form of democracy or otherwise.
Second the debates operate at a legal jurisprudence level, focusing on two primary issues:
(i) The content of the law itself-whether the inclusion of substantive rights in the law
undermines the concepts of stability, predictability, certainty, and equality in enforcement
which are essential features of the rule of law. The main argument is that substantive rights
are not capable of being determined and enforced in a uniform predictable manner that the
rule of law mandates, and therefore, to keep the rule of law intact, substantive rights should
be outside the law; (ii) The increasing unpredictability in judicial decision making due to the
political, social, and moral choices involved in such decisions and its negative impact on the
rule of law. This revolves around the objection to the use of purposive reasoning by judges
and the inchoateness of legal provisions.

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Criminal justice system in India
It is the primary duty of every State to protect rights of every individual as well as the
property. The State has provided the Criminal Justice Administration to protect the rights of
the innocent and punish the guilty. The Criminal Justice Administration is devised more than
a century back. It has become ineffective. A large number of guilty go unpunished in a large
number of cases. The system takes years to bring the guilty to punish. It has ceased to deter
criminals. Crime is increasing rapidly everyday. The citizens live in constant fear. The quality
of justice determines the quality of society of governance.
India has inherited and borrowed from colonial power systems of criminal law and
procedures, as well as rules of evidence, courts, police and correctional systems, that fail to
fit its current societal needs. Today, cases of murder, rape, theft, assault, robbery, disorderly
conduct, and bride burning occur much more than the past. The open violation of laws,
bribery of police, presence of professional criminal, intimidation of victims and witnesses
are experienced in day-to-day life. Those who are not directly victimized often live in a
constant state of fear and victimization. In actual practice, the problem of crime is much
more serious than the official figures show. It has been estimated that from one-third to
one-half of all serious crimes are not reported due to a variety of reasons, including
intimidation and harassment of the victims. Hardly six or seven percent cases go up for trial,
result in conviction. It means either that too many innocent persons are prosecuted
unnecessarily or that a high percentage of guilty persons are being acquitted due to some
shortcomings in the system. Either way the position is unacceptable.
Indian judiciary led by the Supreme Court has exhibited a judicial activism in clearing the
misconceptions about the concept of the criminal trial under the procedure prescribed in
the country which has resulted in the weakening of the Criminal Justice System. Realising
such misconceptions, the Hon'ble Supreme Court in the State of Punjab v. Jagir Singh AIR
1973 SC, 2407 observed that "a criminal trial is not like a fairy tale where in one is free to
give flight to one's imagination and fantasy. It concerns itself with the question as to
whether the accused assigned at the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of inter-play of different human emotions".

Nature of criminal justice system

In every civilized society, Criminal Justice system is composed of the laws that relates to the
societies response to the crimes and the procedure of the administration. The main
objective of criminal laws is to protect the society against the wrong doers and the law
breakers. For the purpose of maintaining law and order in a society, law holds threat of
punishment to prospective criminals and makes attempt to punish such offenders for the
crimes committed. Therefore criminal law consists of both; the substantive law which
defines offences and set down the punishments for the crimes, and the Procedural law

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which administer the substantive law. Unfortunately, People in India have little knowledge
of the procedure of the criminal justice administration and often do not know about their
legitimate rights in such cases. Such ignorance of the procedure also leads to authorities like
Police abusing powers in many cases. It is therefore important for citizens to be aware of
their legal rights and obligation in order to have access to just procedure. 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.
Criminal justice system operates in accordance with specific criminal statutes. The penal
statutes prescribe the acts of commission or omission and make them punishable. The
implicit purpose is to define a crime and its constituent elements, so that a prosecution can
be based on it and the violator may be brought under these statutes. Legislatures in
democratic societies all over the world have a tendency to over react to crime. But their
over enthusiasm to stricter enforcement of criminal law is frequently counter-productive.
Strict punishment against aggressive or anti-social offences is what people will normally
welcome but offences designed to produce social conformity or to legislate morality will
always create problems in the realms of criminal law making and criminal law enforcement.
The non-enforceability of these laws ultimately poses a serious threat to the integrity of the
entire criminal justice system.
In India, the Procedural law or law of procedure has been laid down in Criminal Procedure
Code, 1973(CrPC). This branch of law administers the substantive law and therefore lays
down the procedure of the criminal justice administration. The CrPC applies to crimes under
Indian Penal Code, and offences under Centre Act and State Act. It is called as law of
procedure as it insists on a proper procedure to be followed while administering the
criminal Justice. The role of Criminal Procedure Code is to regulate and provide a
mechanism related to the procedure to be followed in any investigation, inquiry and trial.
The objective of the Procedural Law is to provide a method by which the administration of
the criminal justice can be rendered fairly and in accordance with the laid procedures.
Therefore procedures related to detection of crime, arrest, determination of guilt, rights of
suspected criminals are all a part of the procedural law. The main objective of this law is to
let the criminal administration system follow a procedure that ensure fair trial in which none
of the rights of the accused are neither compromised or unduly favoured.
The criminal justice administration is devoted to reduction in imprisonment rates by
increasing reliance on fines and community-based programme as alternatives. The
correctional institution concentrates on those convicted offenders who are imprisoned and
calls for fundamental changes in the organizational features and supporting ideology of the
correctional institutions. Society has a real interest in the release of prisoners, since these
individuals have been committed for definite terms by the court and release on parole.

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Individuals in the general public are frequently skeptical of probation and parole. These
persons sometimes assert that both parole and probation are based on compassion for the
offender. They point out that in the real world punishment is the fact of life. Under our
criminal justice system, fear of punishment alone prevents the bulk of people from violating
the law. Probation and parole seems to be somewhat at variance with these ideas. It should
be remembers, though that rehabilitation is as important to society as to the criminals.

Components of criminal justice system

Criminal justice system in India is divided into three components :

1. Indian penal code

The Federal criminal law, namely, Indian Penal Code, defines various types of crimes and
prescribes punishment for each crime. Similarly the Criminal Procedure Code contains
elaborate details about the procedure to be followed by the Police officer in every
investigation, inquiry, and trial, for every offence under the Indian Penal Code or under any
other law. The main responsibility of the Police is maintenance of law and order, patrolling,
prevention of crime, and investigation in a particular given jurisdiction.

Investigation primarily consists of ascertaining facts and circumstances of the case. It

includes all the efforts of a police of officers for collection of evidence: proceeding to the
spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender;
collection of evidence relating to the commission of offence, which may consist of the
examination of various persons including the accused and taking of their statements in
writing and the search of places or seizure of things considered necessary for the
investigation and to be produced at the trial; and formation of opinion as to whether on the
basis of the material collected there is a case to place the accused before a magistrate for
trial and if so, taking the necessary steps for filling the chargesheet. Investigation ends in a
police report to the magistrate.

Two major issues in Indian Police system frequently raised are violence in the custody and undue
political intervention in the police administration. In a number of judgments by high courts and also
by the Supreme Court it has been spelt out clearly that every policeman must know that it is not
permissible for police personnel to in fl ict even the slightest physical harm to anyone except in his
own self-defense (Sunil Batra vs. Delhi Administration, 1980). Law places him on par with other
citizens in that regard and he is entitled to use only that much physical force which is reasonably
necessary to thwart any assault on him in the exercise of his right of self-defense. The National
Human Rights has also many times intervened against this custodial violence. Despite all these
interventions still there are reports on custodial violence and deaths in police custody.

2. Courts

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The Indian Judicial System has the Supreme Court of India at its helm, which at present is
located in the capital city of Delhi, without any benches in any part of the nation, and is
presided by the Chief Justice of India. The Supreme Court of India has many Benches for the
litigation, and this apex court is not only the final court of permissible appeal but also deals
with interstate matters, and matters comprising more than one state, and the matters
between the Union Government and any one or more states, as the matters on its original
side. The largest bench of the Supreme Court of India is called the Constitution Bench and
comprises 5 or 7 judges, depending on the importance attached of the matters before it, as
well as the work load of the court. The apex court comprises only various benches
comprising the Divisional benches of 2 and 3 judges, and the Full benches of 3 or 5 judges.
The Appeals to this court are allowed from the High Court, only after the matter is deemed
to be important enough on the point of law or on the subject of the constitution of the
nation, and is certified as such by the relevant High Court. Every State has a High Court,
which works under the direct guidance and supervision of the Supreme Court of India, and is
the uppermost court in that state. The High Courts are also termed as the courts of equity,
and can be approached in writs not only for violation of fundamental rights under the
provisions of the Indian constitution but also for any other rights of the Constitution, and it
has powers to supervise over all its subordinate courts in the state. In fact, when apparently
there is no effective remedy available to a person in equity, in justice, he or she can always
move to the High Court in an appropriate writ.

Below the High court, there are subordinate criminal courts under its supervision in each
district. They are court of sessions and court of judicial magistrates. These courts conduct
trials in all matters related to all types of offenders. However, only the session’s court has
the power to pass the sentence of death. Every district is headed by the Chief Judicial
Magistrate who heads over the other Judicial Magistrates, these courts being primary
criminal courts, where every offender is first produced after arrest by the police.

Administration of criminal justice is carried through these Magistrate-Courts and Session’s

Courts. The Court at the lowest level is called Judicial Magistrate of the second class. This
court is competent to try the case if the offence is punishable with imprisonment for a term
not exceeding one year, or with fi ne not exceeding fi ve thousand rupees, or with both.
The First Class Magistrate is competent to try offences punishable with imprisonment for a
term not exceeding 3 years or with fi ne up to 10,000 rupees. The assistant session’s judge
is competent to impose punishments up to 10 years imprisonment and any fi ne. The
session’s judge can impose any punishment authorized by law: but the sentence of death
passed by him should be subject to the con formation by the high court.

3. Corrections

component of the criminal justice system is corrections, which handles the sentencing and
punishment of offenders, as adjudicated in court. After offenders are convicted in the courts, the
corrections system will separate them from the rest of society. Offenders may be incarcerated in
prison or put on probation/parole, where they will be monitored closely by dedicated officers. n

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India over one million criminal cases are reported every year. Each annual incidence of crime in the
country necessitates the existence of a huge network of prisons and other institutions of
correctional administration. In India the number of prison inmates per million of population is one
of the lowest in the world. There are a total of 1,393 prisons of different categories and sizes, with
an authorized inmate capacity of 320,450.

Corrections officers supervise convicted offenders who are serving sentences in prison.
Probation officers are responsible for offenders who need to be monitored by court, in lieu
of serving jail time. Parole officers supervise offenders who are released from prison early,
ensuring they adhere to their parole terms (such as regular drug testing, staying in one
location, and avoiding criminal behavior).

Corrections officers also play a key role in rehabilitating criminal offenders. Their main goal
is to provide a system where those accused of a crime are monitored, reformed, and
released if and when ready, to hopefully not commit a crime again. These professionals
make sure that correctional facilities are safe and secure, and oversee the day-to-day
routines of inmates. Probation and parole officers play an important role in helping people
re-adjust to mainstream life, and enter society at a functional level after (or instead of)
serving time.

CONCLUSION

The criminal justice framework in India has developed over a time of three thousand years.
At first, the Law or Dharma, as propounded in the Vedas was viewed as preeminent in
antiquated India for the King had no authoritative power. In any case, progressively, this
circumstance changed and the King began making laws and controls keeping in see the
traditions and nearby uses. The disciplines amid old India were brutal, uncouth and barbaric.
As respects the system and quantum of the disciplines there were inconsistencies between
different Smritis and in specific cases even among the arrangements found in one Smriti
itself. The arrangement of granting disciplines based on varna negated the idea of
correspondence of every single individual as propounded by the Vedas. The unfair
arrangement of causing disciplines and opposing arrangements in various lawful writing
made the criminal justice framework blemished and confounding.

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Reference
1. http://bjs.gov/content/pub/pdf/wfbcjsin.pdf
2. http://data.conferenceworld.in/IETES/26.pdf
3. https://egyankosh.ac.in/bitstream/
123456789/38802/1/Unit-13.pdf
4. https://www.clearias.com/criminal-justice-system-
india/
5. Criminal justice system in India by Hans Raj
Dharadwaj
6. Restorative Justice in India by R. Thilangaraj

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