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INDIA TODAY
     CURRENT ISSUE NOVEMBER 06, 2006
 
   SOCIETY & THE ARTS: BOOKS
 
JUDGEMENT DAY

Fali Nariman gives a rare insight into the performance of Indian legal system in a seamless narrative
 

INDIA'S LEGAL SYSTEM: CAN IT BE SAVED?

BY FALI S. NARIMAN

Penguin


Price: Rs 195; Pages: 173

This book is full of surprises-and very pleasant ones. It's a little volume-but a large book. In 155 pages, barely 7 by 4 inches large, the book traces the development of Indian law from the smritis of ancient times to contemporary issues of legal reform being debated currently. Any assumptions about superficiality of treatment or lack of depth are belied and proved presumptuous-the book is obviously well researched, written anew (not merely repeating old articles by the eminent author) and carries telling insights into complex questions without losing punch and brevity. It achieves a remarkable synthesis-not simplistic for a practising lawyer and not complex or pedantic for the layman. It tells a terrific story in direct and simple language, eschewing jargon and demystifying complex concepts.

The witty and erudite author has remembered that "making a book is a craft, as is making a clock; it takes more than wit to become an author". His ability as a raconteur, nevertheless, keeps surfacing: the reference to the "flattering and...overpowering" portrait of the first Chief Justice Sir Elijah Impey of the Supreme Court of Judicature in Kolkata to the three ideals of justice-Victorian, Indian and Cynical-reflected in the three carved stone images at Bombay High Court and to Nobel laureate Ralph Bunche's comment on the question as to how long can a society atone for past oppressions-are but three examples.

Despite its tiny size, the book is full of insightful and innovative conclusions. For example, despite the vast reach and immense global influence of the British empire, why have no one other than former British subjects adopted the common law? Why did the Indian Constitution framers not mention a Gandhian constitution or panchayats or indirect governance and consciously opt for a parliamentary, federal republic? And why the word "federation" is not used in the bulky Indian Constitution?

Being a member of the high powered group which made recommendations leading to the amendment of the Civil Procedure Code (cpc) providing for a menu of Alternative Dispute Resolution (adr) mechanisms-lok adalat, mediation, conciliation, etc-this reviewer found the author's discussion on the subject apposite and insightful-to this day, we do not know why our suggestion for obligatory adr in civil disputes was converted to an optional one under the amended section 89 of the cpc. The discussion on equality, reservation and untouchability highlights the two issues which are the heart of the problem viz the availability of plenty of constitutional guarantees against the state but the absence of such rights by one group against another and the fact that we may have constitutionally abolished untouchability and backwardness "but, alas, many of us have not eliminated it from our hearts".

There are useful discussions on public interest litigation, judicial review and activism and the serious inadequacies of the criminal justice system. The author shows that he is not just any unrealistic bleeding heart liberal by arguing forcefully that in terrorist related offences, the right of the accused to remain silent should give way to the larger interests of society and of the victims. His questioning of the foundations of the "beyond reasonable doubt test" and its semantic inadequacies is novel and should start a new debate on one of the most venerable pillars of the criminal justice system.

Perhaps the best part of the book are the last 60 pages where two sets of issues are thrashed out in admirable detail and depth but with remarkable brevity under neat and pithy subheadings viz, "The Serious Shortco-mings of the Criminal Justice System" as also "The Structural Revamp of Court Administration in India".

The publishers have done a disservice by not providing subheadings and contents. Some of the very recent laudable reforms-the creation of a national computerised judicial grid-have not received adequate attention. Absence of analysis of court management techniques and the absence of analysis of some of our procedural laws which retard disposal-a vital part of adr and court administration generally-is another lacuna. The absence of proper adr in criminal law should also have received more comprehensive treatment.

But all in all, here is clearly a book to be tasted, chewed, swallowed and digested.

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INDIA TODAY
CURRENT ISSUE
NOVEMBER 6, 2006
 IN THIS ISSUE
COVER STORY

INDIAN MNCs

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LIMITED LEEWAY

CROSS CONNECTIONS

NAIDU ON A REBOUND

MOTHER OF ALL BATTLES

NO DROUGHT OF FRAUDS

PROMISES KEPT

Billions In Bills

ANGER MANAGEMENT

THE NEW HIGH

Freaky Weather

RIDING THE LEISURE WAVE

JUDGEMENT DAY

WORK IN PROGRESS

LOVE BYTE

IS IT THE LOST TRIBE OF ISRAEL?

RIDING THE LEISURE WAVE

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