Making CPC effective & justice oriented

Prakhar Maheshwari, West Bengal National University of Juridical Sciences


Editor’s note:

A uniform civil code was introduced in 1859, prior to which there existed several codes overlapping in the same areas. This code was revised, formulated and executed multiple times. However, a need is now felt in today’s time to revise it further, as the Code seems to lag behind society in certain aspects such as delay in trials, pending backlogs, cost effectiveness, and so on. This paper, keeping the reports of the Law Commission in mind, deals with certain issues of natural justice vis-à-vis CPC.

CPC has been amended multiple times, a notable one being in 2002 (for reducing delays, barring any 2nd appeal from a decree). The concept of natural justice is enshrined in the Preamble, and includes a fair trial, impartiality, good faith, reasonable time, fair notice, etc. The procedural code of the country must exemplify this spirit, otherwise the concept becomes redundant. These principles find echoes in provisions of CPC, and have been reaffirmed in a veracity of judgments, mainly the rule of audi alteram partum (the right to be heard) and nemo debet esse propria causa (no one shall be a judge in his own case). Other principles include the right to legal aid, speedy trials, Lok Adalats, res judicata, etc. The CPC has been in a constant state of evolution to keep in consonance with rules of fair trial.

INTRODUCTION

The Code of Civil Procedure was actually established in the year of 1859. Before this, there wasn’t any uniform code which regulated the civil procedures. In fact, there were many codes prevailing in the same areas. This was hence the first time when the civil procedures were coded and were applicable for the whole country. Many flaws were found in this particular code and after this; a couple of more civil codes were formulated and replaced the existing code. Finally, after twenty five years, the law makers with that experience could formulate a more effective code in the year 1908. This code was well formulated and well thought out. The provisions of the code were deemed fit for that era. However, there are many things which lag behind with regard to the code. Delay in cases, a huge number of pending cases, the trials not being cost effective are some of the serious problems which the country faces today and which need urgent check. Many law reforms have been subjected in various committees and law reports like the 14th and 27th report of the Law Commission. This project aims to deal with issues of fair trial and natural justice and some foreign cases on the same subject.

Amendments at a glance

Various efforts have been made by the law makers to improve the procedural code of civil proceedings by amending the act at certain intervals. These amendments seek to ensure fair trial and speedy justice. In 1999, a bill was formulated to amend the Civil Procedure Code but it was discarded as it was met with great resistance and strikes from lawyers. Hence, a new amendment code was formulated in 2002 which is called the Code of Civil Procedure (Amendment), 2002. The act of 2002 was met with little resistance and proved to be more effective than the one in 1999.Venkatesan in his article ‘Trial and Execution’ states that “The 2002 Act has been welcomed for reducing delays during the trial of civil suits. The means of serving summons on defendants have been expanded with the addition of more options such as e-mail, fax and private courier. The 1999 Act had imposed a 30-day limit on the defendant to file reply to the summons, which was objected to by the lawyers. The 2002 Act provides three months for reasons to be recorded in writing by the court.”[i]

“The 1999 Act substituted Section 102 of the CPC to provide that no second appeal shall lie from any decree, when the amount or value of the subject-matter of the original suit did not exceed Rs.25,000. Critics had then pointed out that it would foreclose second appeals even in cases where a substantive question of law was involved. It was argued that the revenue being nominal, the jurisdictional value of all suits, arising out of the rural areas and agricultural land, prescribed as a certain multiple thereof (generally 30) would never reach Rs.25,000. This would have created an unfair distinction between two classes of litigants with the right to second appeal available only for the moneyed classes. The 2002 Act has corrected this distortion by specifying that no second appeal shall lie from any decree, when the subject-matter of the original suit is for the recovery of an amount not exceeding Rs.25,000.”[ii]

This ensures that both the parties are given enough time to respond as well as equal opportunities. The amendments ensure that a particular person is not given an advantage over the other.

The Concept of fair trial

The Preamble to the constitution says that the country will make an effort to ensure “Justice- social, political and economic to all its citizens”[iii]. This justice of social, political and economic factors is usually referred to as the concept of Natural Justice. Natural justice simply means the unbiased, fair and just methods of legal proceedings. Ken Binmore in his article ‘Natural Justice’ discusses that “the Apex Court of the country has laid down guidelines for all the courts to ensure fair trial during a legal proceeding and that courts while giving a judgment should insure impartiality, should act fair in all manners, should not be biased in any way and the judgments must be passed in good faith. Also, the courts must give reasonable time to both the parties to respond to the legal notice and a fair and equal opportunity must be given to them to present their case.”[iv] The author also believes that for natural justice, the procedural code of the country needs to exemplify the spirit of fair trial or else the whole concept will not be able to take existence. A violation of these principles is actually considered as the violation of the Article 14 of the Constitution of India which entails the Right to Equality.

In the Code of Civil Procedure, Order 41Rule (2), (3) Defends and safeguards the interest of a decree holder. It states that, before custody is ordered by the Court, it should ensure that there was no bad faith in ordering such a detention. It should keep in mind that this custody was not awarded merely on the basis of omission. This way, principles of natural justice are maintained.

The Supreme Court in the case, State of Punjab v. Baldev Singh[v] stated that “an unfair trial leading to conviction is against the very principle of justice.”[vi] In Zahira Habibullah Sheikh &Anrvs State Of Gujarat[vii], the Court stated that “The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.”[viii] In fact, in a 2010 case (Babubhai v. State of Gujarat &Ors.[ix]), the Court read “the right to a free and fair trial as well as investigation into Article 21 of the Constitution, which, in turn, guarantees ‘personal liberty’ and has been interpreted to include the fairness of procedure which is to be used by a court so as to ensure its compliance with the principles of natural justice.”[x]

The two ingredients of natural justice are:

  1. Audi Alteram Partem i.e. no one shall be condemned without reasonable hearing

  2. Nemo debet esse propria causa i.e. no one shall be a judge in his own case[xi]

The right to be heard

The Latin term “audi alteram partem” means “hear the other side too”, or “hear the alternative party too”. This is a very important ingredient in the concept of natural justice and free trial as this ensures a person’s right to be heard. All the courts favour the concept of letting both the parties heard as it guarantees the unbiased nature of the Courts. Since it is such an important feature, it must be included in the civil procedural laws and codes.

The Supreme Court, in Maneka Gandhi v. Union of India[xii], gave an important and deep meaning to the right to life as guaranteed under Article 21. The verdict essentially overruled the position previously taken by the same court. The provision for a fair trial in front of an impartial court as read into Article 21, originates from the decision in the aforementioned Maneka Gandhi case[xiii]. “It is widely accepted as the Indian version of the American concept of ‘due process of law’.”[xiv]

In the Code of Civil Procedure too, there are certain provisions which relate to the right of being heard in a free way and in an unbiased manner. Rule 13 of Order IX says that “that in case the summons is not served duly, or if sufficient cause exists, the ex parte decree should be set aside”. The advantage of such a rule is that both the parties of a case get an opportunity to present their side and arguments in front of the Court and get a fair trial as per the procedure of the Court, this despite there being the existence of an ex-parte ruling.

The landmark case of Jolly George Varghese v. Bank of Cochin[xv]  embodied such a rule, when the Supreme Court laid down the law in this regard.

No one shall be a judge in his own case

Although it might seem so obvious now with certain Articles like 21 of the Indian Constitution which deals with fair trial that such an ingredient needs to be formulated, it is of an important nature that such a feature is not forgotten. The Latin term “Nemo debet esse propria causa” means “no-one should be a judge in their own cause”. In other words, justice should not only be done but should be seen that it is done.

“This right to an unbiased hearing is included under Section 100 A of the CPC, by virtue of which if any appeal from an original or appellate decree is heard and decided by a Single Judge of a High Court, he would have the freedom to have a fixed and unchanging opinion on the issues. His opinion is saved from further prejudice because no further appeal lies from such order of such Single Judge.”[xvi]

Legal Aid

One of the salient features of the Indian Judiciary is the provision of legal aid. This concept is not recent and has been present since the time of British India. Under the Constitution of India, Article 21 deals with fair trial. A person, who can’t defend his case just because he doesn’t have the money to fight, seems very unfair to the economically backward people. Hence a committee under Justice Bhagwati was formed to check that the people, who require legal aid, are given the necessary services. Furthermore, “according to Article 39A of the Constitution, the State Government has to mandatorily implement a program which helps the people in need of legal aid so that the nature of justice remains unbiased and effective at the same time”[xvii]. Under the CPC act, the Order XXXIII, Rule 9A deals with the concept of free legal aid. This order asks all the bodies of Government to follow the rule and that a poor person should not be disadvantaged over a richer person on the basis of finances. The court is asked to provide a lawyer or pleader if the poor person is not in a condition to afford one. In the case of State of Haryana v. Darshana Devi[xviii], the Court said that “the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, CPC[xix]

Right to Speedy Trial and Lok Adalats

With a mammoth number of pending cases and the delay in providing a fair and just judgement, it only makes sense to have right to speedy trials and other methods of providing justice be embodied in the Civil Procedure Code. Civil cases can be settled outside the Court by means of arbitration, lok adalats, etc. Again, Article 21 emphasizes on the need to have a speedy trial. No person should be harassed by the legal proceedings by delaying the time for justice. Section 89 of the Civil Procedure Code deals with the settlement of disputes outside the Court by means of arbitration, mediation and conciliation. The Legal Services Authorities Act of 1987 which established Lok Adalats and gave their judgments and awards the requisite statutory backing. With the establishment of such Adalats, the Judiciary gained teeth to deal with delaying of cases. The proceedings sped up.

Right against Double Jeopardy

Article 20(2) of the Constitution of India provides safeguard from Double Jeopardy. Double Jeopardy simply means that a person cannot be tried for the same offence twice. So a person doesn’t need to go to the court time and again for the same offence. This again helps in speeding up the trial.

The Latin term “res judicata” deals with the same concept.

CONCLUSION

As we can see from this project, law makers and constitution makers have kept on improving the sections of the Civil Procedure Code and articles of the Constitution to help in natural justice by providing fair trial. While Article 12, 21 and 20(2) of the Constitution play an important role in natural justice, Sections 100, 89, 26 and 27 of the Civil Procedure Code do the same. Amendments have been made, law reforms have been recommended and various law reports have suggested changes with respect to civil proceedings to implement the concept of fair trial and natural justice. In this project we dealt with the ingredients of natural justice and fair trail like the equal opportunity to be heard, one cannot be his own judge, speedy trials and formation of other methods to deal with petty cases outside the court to give boost to justice. Hence our law makers have put immense effort to make Civil Procedure Code, 1908 more effective and justice oriented.

Edited by Neerja Gurnani

[i] V. Venkatesan, ‘Trial and Execution’ [2002] Hindu 1.

[ii] V. Venkatesan, ‘Trial and Execution’ (hindu.com 2002) <http://www.hindu.com/fline/fl1914/19141020.htm> accessed 16 February 14

[iii] See Constitution of India, 1950, Preamble.

[iv] Ken Binmore, Natural Justice, Oxford University Press, (2005).

[v] State of Punjab v. Baldev Singh [1999] AIR 2378 (SC).

[vi] Ibid

[vii] Zahira Habibullah Sheikh & Anrvs State Of Gujarat [2004] AIR 3467 (SC).

[viii] N5.

[ix] Babubhai v. State of Gujarat &Ors[2010] AIR 1461 (SC).

[x] Ibid.

[xi] O. Chinnappa Reddy, To be Heard or not to be heard, The Court and the Constitution of India, Oxford University Press, New Delhi, 2008.

[xii] Maneka Gandhi v. Union of India [1978] AIR 597 (SC).

[xiii] Ibid.

[xiv]M. P. Jain, Indian Constitutional Law(6th Edition, 2012)

[xv] Jolly George Varghese v. Bank of Cochin [1980] AIR 470 (SC).

[xvi] C.K. Takwani, Civil Procedure (6th, Eastern Book Co, Lucknow 2006) 506

[xvii] MP Jain, The Code of Civil Procedure (3rd, LexisNexis Butterworths, Nagpur 2012) 211

[xviii] State of Haryana v. Darshana Devi [1979] 184 SCR (3).

[xix] Ibid.

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