29 May 2023 9:08 AM GMT
The conflict and court marshal side by side and procedural law assumes the ‘role of lens of the law’ to magnify the litigation and judgment. The procedural laws sound full of magic because it conjures a world of its own and seeks to capture the ‘real’ world in its social legal milieu. Lectures on Procedural Laws by Aishwarya Pratap Singh capture the arte facts/craft of...
The Foreword authored by Justice Krishan Murari succinctly underlines the need of such a book by asserting that ‘procedural plays a major role in dispensation of justice, and without proper procedural laws, the substantive laws which define offences and provide punishments for them, would be almost worthless.’ He further explicated the trilogy of the statutes Indian Evidence Act, 1872 Civil Procedure Code, 1908 and Criminal Procedure Code, 1973 is sine quo non for the litigation, court and judicial strategy. To quote:
A clear understanding of the procedural laws is necessary for everyone associated with the administration of justice, as it plays a major role in making the substantive law effective.
Justice Krishan Murari while commending the author and his streak of writing observed as under:
Conceptual yet brief exposition of procedural laws does not come easy to hand and so this work constitutes a notable welcome exception.
The author in his preface mentions that ‘mastery of procedural law becomes indispensable’ in the myriad of the laws and rules and orders and state enactments. According to the author, the ‘labyrinth of the commentaries’ compounds confusion for the student and bibliophile practitioners of the law. Therefore the ‘practical and contemporary flavor’ of the bench and bar summons for restatement of these laws with clarity and precision. To this end the book is divided in to three parts for the penultimate analysis and in depth examination.
The first part of the book deals with the Code of Criminal Procedure, 1973 in digging out the ‘jurisprudential essence of the Criminal Procedure Code’ which historically linked to the pronouncement of the Supreme Court in Kesavanand Bharti v. State of Kerala and ‘doctrine of basic structure’ in 1973. It has ripple effect on the evolution of the constitutional jurisprudence transcended it impact in shaping the Code of Criminal Procedure, 1973 in conferring the fair criminal trial and justice delivery. According to the author ’the jurisprudential essence of the Code of Criminal Procedure, 1973 has to be seen in the essential balancing of the interests of the accused and the society.’ It became a testing pad of all laws and reached to the culminating point in Iqbal Ismail Sodawala v. State of Maharashtra, 1974 by laying down that the ‘Code of Criminal Procedure, 1973 spells out the rule of law against the rule of whims and caprice.’ The knotty and gritty of the Code of Criminal Procedure, 1973 carved out in more than 150 pages encapsulating hierarchy of court, power of sentencing, investigation by police, cognizance and subsequent proceedings before magistrate. The constitutional safeguards for arrest, bail and framing of charges in the trial are vividly portrayed with easy understanding of the author. The book also dichotomizes the merger of civil remedy under the Code of Criminal Procedure, 1973 in regard to the maintenance of the wives, children and parents. The notion of the probation and parole culled out with an emphasis on the extra mural character of the law in humanizing criminal justice system. The author believes that ‘hate the crime not criminal’ because ‘every criminal has a future’ and the plea bargaining can be profitably be employed for the quintessence of criminal justice system.
The second part of the book deals with Indian Evidence Act, 1872 which supplied life and blood to the Code of Criminal Procedure, 1973 and Code of Civil Procedure, 1973. While standing in the equal distance to both these laws and validly considered ‘one of the best drafts in the world’. The author rightly believes that the Indian Evidence Act, 1872 ‘is to legal practice, what logic is to all reasoning.’ Therefore the judicial strategy for the filtering the fact and fiction needs a meticulous “separation of the wheat from the chaff., it begins with the concept of relevancy of the fact under Section 6 of the Indian Evidence Act, 1872 and author’s interesting analogy and comparative outlook of the doctrine of res gestae with the Newton’s law of inertia.
The author therefore rightly asserts that ‘the role of evidence is to scientifically reconstruct the past events’ and ‘an effective tool in the fact-finding processes.’ The novelty of these idea runs in to 200 pages encompassing relevancy of fact expert evidence, electronic evidence,, documentary evidence burden of proof. The uniqueness of the privilege and professional communication and equitable and evidentiary basis of the law of estoppels explained in easy to understand language. The conflict and cohesion of the inquisitorial powers of the court in adversarial process of justice under section 165 of the Indian Evidence Act, 1872 and section 311and 313 of Code of Criminal Procedure, 1973 nicely appraised under the Anglo-Saxon jurisprudential parlance.
The third part of the deals with Civil Procedure Code, 1908 spread over 95 pages buttressing the p[point that it is ‘an admirable piece of legislation’. What makes it ‘an admirable piece of legislation’ is 158 sections, 51 orders and innumerable rules containing in a hierarchical symmetry? The general principles entail that section, orders and rules are to be harmoniously construed. The basic concepts, jurisdiction, res judicata, canons of pleadings and enforcement of foreign judgments are examined in under the basic canons of statutory interpretation and justice. The alternative dispute resolution (ADR) law under Civil Procedure Code, 1908 probed in the context of the Mediation Bill, 2021. The author believes there is an urgent need of mediation to lean a compromise that a fat law suit where the tribulation of victims marred by the delay and latches. The concept of ‘abandonment’, withdrawal, compromise and abatement dig deep in to the framework of the Civil Procedure Code, 1908 and Mediation Bill, 2021. The inherent power of the court and concept of the cost are examined in victim specific remedies and expeditious disposal of the cases. The judicial impact assessment and the institutional independence of the judiciary are some of the finest discourses. It ardently believes that government being the major litigation agency should only assess but anticipate the cost of implementing legislation through labyrinth court procedures the end of justice to litigants. It received judicial recognition under the Salem Bar Association v. Union of India in the context of the Congressional Budget Act, 1974 and jurimetrics analysis of the National Judicial Data Grid (NJDG). It implores that the mechanism must be go hand in hand across the hierarchy of the courts for stemming the rot and initiate systemic reform in the procedural laws of India.
The book indeed makes a valuable contribution to virgin as well as the grey areas of the procedural laws applied in the civil and criminal arena. It engages readers to the currency of the issues and offers rounded diametric of civil and criminal dispensation of justice. The book carves out reformative strategy to refurbish the colonial neo-colonial and independent Indian procedural laws. The understanding of people centric and victim tilted remedies in the book touches with great acumen to herald alternative and mediation oriented procedures in civil and criminal litigation. The genuine encounter of the book with the judicial impact assessment and the institutional independence of the judiciary are scholarly in character and alleviate the significance of the work beyond students and practitioners to the law reformers and scholars. The cover paper and get up are very impressive. The veritable relevance of the book lies in the ‘tell me why this procedure’, ‘multiple choice questions’ and ‘model answer.’ The tabular portrayal of the topical case laws up to 2022 makes the volume not only contemporaneous but ready reckoned for the readers. The book has great potential to go into the hands of students of procedural laws in dispelling misgiving and enlightenment on the subject.
Author is a Professor & Dean, Faculty of Law, Aligarh Muslim University Aligarh