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Report No. 27

12. Indigenous system.-The indigenous system has been rejected by the Law Commission in the Fourteenth Report. The reasons for rejecting that system are well brought out in the following passages from that Report1:

"The answers we have received state with almost complete unanimity that the system which has prevailed in our country for nearly two centuries, though British in its origin, has grown and developed in Indian conditions and is now firmly rooted in the Indian soil. It would be disastrous and entirely destructive of our future growth to think of a radical change at this stage of the development of our economy. It has been pointed out that those who have supported a reversion to the indigenous system of judicial administration have not really applied their minds to the question.

It would be ridiculous, it is said, for the social welfare State envisaged by our Constitution which itself is based largely on the Anglo-Saxon model to think of remodelling its system of judicial administration on ancient practices, adherence to which is totally unsuitable to modem conditions and ways of life. We may as well, it is said, think of rejecting modem medicine and surgery and content ourselves with what the ancient knew and practised."

It is to be noticed that the conclusion reached by the Law Commission not to depart from the Anglo-Saxon system of procedure is based on "almost complete unanimity" of public opinion.

1. 14th Report, Vol. I.

13. Continental system.-A brief resume of the continental system is given in the Report of the Evershed Committee in the following words1-2:

(b) In both France and Germany all (oral) witnesses are the Court's witnesses, though generally speaking they are tendered by the parties. In both countries the system is (as has been said), unlike the English system, "inquisitorial". There is substantially no cross-examination and for practical purposes none at all by the parties or their legal representatives. The witness in effect makes a deposition before the examining judge who decides what witnesses shall be summoned. The process of taking evidence is almost invariably at an early stage of the proceedings, long before the "trial" proper.

(c) The witness makes his statement in his own words-there being no "hearsay" rule. It is for the Court to decide the value of what has been said. It is, however, to be noted that the parties themselves are, generally, not competent witnesses in Germany; and in France parents, relatives and servants of the parties and certain other categories of persons are not competent.

(d) In both France and Germany oral testimony is regarded as of far less significance than in England (as will be apparent from the preceding paragraph).

The main emphasis is on written evidence including notarially attested records of every sort of transaction.

The oral evidence, as we have said, is taken more or less in the form of depositions by an examining magistrate before the ."trial". The examining magistrate decides what he shall receive and what he shall not receive and makes his report thereon. So far as regards oral evidence that is the end of the matter, and it follows that there is no room for the characteristic English rule about hearsay.

The system in Eastern European countries is also not very different.

1. Final Report of the Committee on Supreme Court Practice and Procedure, (1953) Cmd. 8878, pp. 85-86, paras. 250 and 252.

2. See also 14th Report, Vol. I.

14. English system preferred.-We think that on merits the English system is to be preferred, because it ensures fair trial.

If the rule of law is to be maintained, if a democratic social order is our political objective and "if justice must be done in a way which will satisfy the minds of the public that it is not only being done but is obviously and clearly being done", we cannot think of any legal system other than the English without imperilling the very foundations of our legal structure and the great principles which are enshrined in our Constitution. Most of our laws, both procedural and substantive, are based upon English jurisprudence. It is too late in the day to shift to the Continental system, unless we are prepared to revise our entire body of laws.



Code of Civil Procedure, 1908 Back




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