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Report No. 54

Chapter 1B

Our Approach and Principal Recommendations

Main objectives

1B.1. Our main objectives in this Report, as already stated,1 will be two-fold-

(a) to consider the need for such major changes as could cut down the delay, and expense of civil procedure, of course, to the extent to which the delay or expense could be attributed to defects in or deficiencies of the provisions in the Code of Civil Procedure;

(b) to consider the need for such changes as are desirable in order to implement the directive principles in Part 4 of the Constitution.

Procedure, a means to justice

1B.2. Any system of procedure must subserve the ends of Justice. Procedure is a means, and not an end. When the means assume undue prominence, and the end is lost sight of, or even sometimes apt to be defeated in the process, citizens affected have a legitimate right to complain. And it is the duty of the State to see that its legal system does not leave scope for processes which are likely to hinder or defeat justice.

Overhauling of entire procedure not required

1.B.3. This does not, of course, mean that a total replacement of the existing system of procedure by a new one, or such a radical overhaul as would change its face entirely, is necessarily required.

1.B.4. As Lord Kilbrandon has observed-

"The ship is well designed, fundamentally sound, and is for most of the time on a correct course; what is wanted is an overhaul and modernisation of the navigational instruments, so that she is more easily kept on that course. And some of the officers are getting a bit elderly-This will always be true."1

1. Lord Kilbrandon Other People's Law, (1966), pp. 3-4.

Means must be effective

113.5. Since procedure is a means, and justice the end, the means must be effective for realising the end. This requires that the procedure must be simple, fair, effective, speedy and inexpensive. To spell out these requirements, we need: (a) an adequate organisation of the courts for the efficient distribution and despatch of business (requirements of effectiveness); (b) freedom from mere technicalities at all stages (requirement of simplicity and speed); (c) clear definition of issues (requirement of fairness); (d) wherever possible, the elimination of any element of surprise at the trial (requirement of fairness); (e) control and supervision by the court of the progress of the proceedings (effectiveness of the trial); (g) effective methods of execution (ultimate effectiveness of the trial); and (h) a speedy and authoritative system of appeal (requirement of fairness, and substantial justice in the end).

Impediments to justice not to be multiplied

1B.6. As Cardozo observed,1 "a system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity."

The same idea has been expressed more recently by Chief Justice Warren,2 who aptly stated that-

"the orderly and expeditious processing of litigation is a right which each of us should be able to ask of our judicial system, no matter what our status in life or how meagre or non-existent our resources may be. In the name of human dignity we can ask no less, yet we must admit that we are falling far short of our goal."

1. Cardozo J. dissenting in Read v. Allen, (1932) 26 US 191 (209).

2. Quoted in Sutherland, The Path of the Law from 1967 (1968), p. 216.

Secondary objectives of procedure

1B.7. Procedure, thus, exists for the sake of something else, for the sake of the substantive law.1 This is its primary objective. But procedure has many secondary objectives. It must give the parties a feeling that they are being dealt with fairly. It must serve the cause of efficiency. And it must yield final and lasting adjudication.2

1. Hepburn The Historical Development of Code Pleading, (1897), pp. 19-20, cited in Fleming Civil Procedure, (1965), p. 2.

2. Fleming Civil Procedure, (1965), p. 2.

Ideal system of procedure

1B.8. These objectives may sometimes come into conflict with each other.1 In an imperfect world, limits have to be put on the length and amplitude of an inquiry into truth. An ideal system of procedure would be one which could achieve these objectives to the maximum extent practicable, and harmonise them to the extent possible.

1. Ibid.

Importance of procedure to ordinary citizen

1B.9. The importance of procedure to the ordinary man must also be pointed out. As has been observed,1-

"It is from the practice and procedure of the courts-that is, the way in which a case is conducted, the facts discovered from examination and cross-examination and the like-that the ordinary citizen, as litigant, witness, or even spectator, obtains his experience of our legal system; and on that evidence he is likely to form his judgment on the claim commonly made by Englishmen to excellence in the administration of Justice."

1. Final Report of the Evershed Committee on Practice and Procedure, (1953), para. 1.

Importance of Procedure

1B.10. Long ago, a writer, emphasising the importance of adjective law, observed.1-

1. Hepburn The Historical Developments of the Code Pleading, (1897), pp. 19, 20 cited in Fleming Civil Procedure, (1965), p. 2.

"Procedure should always be indeed the "handmaiden of justice", its motto should be that of the Prince of Wales, Ich dien. This cardinal fact is widely admitted, but has often been overlooked in practice."

But, to recognize that procedure exists primarily to implement substantive right, does not detract from its importance. In an ideal world where every one obeyed implicitly the commands of substantive law, procedure would possess no importance.1 Nor would it be of much value where the time and the means and the will to get the bottom of every dispute and grievance were all unlimited.

1. See Fleming Civil Procedure, (1965), p. 2.

The Code of Civil Procedure, 1908 Back

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