Saturday, March 21, 2009

The Angrez

Welcome to our blawg “Civil Devil.” This forum is meant to be a platform for discussion, deliberation and demystification of the major civil laws of India. In this very first post, I would like to start off with a short note on the “Code of Civil Procedure”, the primary and foremost statute on adjective civil law in the country. No understanding of any law is complete without knowledge of its origins and the throes of its birth. Therefore, it is justified that the history of codification of the C.P.C be the theme of this post.


To understand the magnitude and importance of this time-tested and proven Act (C.P.C), we must travel back to the early 19th Century, when the English were beginning to taste success and gaining more than a toehold in the Indian subcontinent. To be precise, it traceably started with ardent arguments about the future role of British governance in India before the British Parliament on 10th of July, 1833, by a young English lawyer named Thomas Babington Macaulay. According to him the role of the British colonizers was "to give good government to a people to whom we cannot give a free government." At the heart of Macaulay's good but not free government stood what he saw as one of the England's greatest gifts to the people of India: the rule of law.


Later the same year, Macaulay set for Indian subcontinent, charged with the momentous task of codifying the law of India, defining in his own words as "one great and entire work symmetrical in all its parts and pervaded by one spirit." By that time the East India Co. already administered a vast number of regional legal sources in India, based on Roman principle of "justice, equity and good conscience," but it was Macaulay's aim to streamline the unwieldy and confusing system. Despite the apprehensions that codification would bring sub-continental chaos by replacing the arbitrary and personal will with the rational objectivity of a universal law, Macaulay found British Empire under obligation to the reform of Indian society and envisioned it as "an enlightened and paternal despotism."


With that effort, four Indian Law Commissions were set to work intermittently on the Anglo-Indian Codes from 1834 to 1879, which resulted in the three most important contributions i.e. Indian Penal Code (1860), the Code of Civil Procedure (1859), and the Code of Criminal Procedure (1861), which were the first three codes enacted by the Government of India.  The Royal Commission of England was working on a criminal code for England, and very unsurprisingly Macaulay first set himself to drafting the Indian Penal Code and submitted its draft in 1837 itself. However, the reforms in criminal law were believed to meet least social resistance because the principles are universally understood, the real challenge was the codification of civil laws, which according to Henry Maine touched upon "the local peculiarities of the country."


The codification process is certainly an integral part of nation-building since those times and is usually inspired by the ones already in successful existence. And without the exception, Colonial Indian Codifiers were inspired with the Livingston's Louisiana Code and Field's New York Code, well established before them. The challenging phase during uniform codification of civil and criminal laws in India, which continued for several years, was to convince their own fellow Englishmen in India to subject themselves to laws framed for the subject population. And the Great Rebellion of 1857 played a prominent role therein, which resulted not only in heightened racial animosities and substantial state restructuring, but also in a renewed commitment to institute a codified set of laws. Doubts are still posed as to whether the Rebellion was the cause or the effect of such drastic changes in the legal status. The original Code of civil Procedure (1859) went through several changes in light of the interest of East India Company, to come to its most modern form i.e. the 1908 Act.


Therefore, it can be said that the codification patterns of renowned English jurist Bentham, which involves eliminating and replacing the historical dead weight of the common law traditions with a complete set of knowable and understandable rules designed to guide conduct for all imaginable actions, worked well in India. Further, it is also well-known but little explored fact that whereas the English in England firmly opposed codification, the English in India radically transformed the legal landscape in a fashion that has largely outlived the departure of the colonial masters.


The C.P.C spells out the entire procedure to be followed in a civil suit. The procedure is, as very well said, a means towards the realization of justice i.e. machinery for achieving the goals embodied in the substantive law. The 1908 Code has been amended by the Amendment Act 1999 and the Amendment Act 2002, with effect from 1 July 2002, to address the concerns of expeditious adjudication and cutting down the time consumed in the disposal of civil cases. However, the basic idea behind any amendment to machinery provisions has been and should be that the “means should not defeat the end.” 



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