Note No.
3:
More theory about our system of pleadings
Nanda Kishore
Course Instructor
There are several other interesting aspects that could be considered
about the system of pleadings we have.
We know from our study of the great legal philosophers like Dworkin and
Hart that there is a raging debate about whether judges “make” new law
or whether they only “discover” the law already existing when they decide
hard cases. Take the Indian Supreme Court’s ruling that homosexuality is
not within the mischief of section 377 IPC. This was a landmark ruling of
course. But the question is whether the judges were simply doing their
jobs by interpreting and “finding” the right answer in this particular
context or whether they were actually creating new law. Dworkin might
argue that even in such hard cases, judges are bound to work with the
existing statute, the Constitution and precedents, to find the “best
constructive interpretation of our practices”, which interpretation will
inevitably lead to one right answer.
Is the aforesaid debate only an academic one to be engaged in by the
“jurisprudes”? No. We see that hard cases present a problem for the
procedural system that we follow. In the very same section 377 IPC
example, let’s assume a person was implicated in a case (prior to the
Supreme Court ruling decriminalising homosexuality) and charged with
homosexual conduct, deemed punishable under section 377 IPC. How
would his case be proceeded with? As per the assumption made about the
substantive law, namely section 377 IPC, the prosecution would treat his
alleged homosexual conduct as constituting an offence and the charges
would accordingly reflect these “facts-in-issue” inter alia, whether the
accused engaged in homosexual conduct. Only after trial, counsel would
argue on legal issues before the trial court. Now, the counsel who wished
to challenge the existing interpretation of section 377 would have to
convince the court that in spite of prosecution having proved homosexual
conduct, the same is not an offense under the section. Assuming that he
convinces the court to hold that homosexual conduct is not an offense
under section 377- then why was the accused tried for the same and why
did the prosecution try to prove it in trial when it wasn’t an offense in the
first place? It is apparent that our system assumes that there is no dispute
about what the substantive law is and hence, at the very outset, pleadings
can be confidently prepared on the basis of the “clear” substantive law;
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charges can also be framed without hesitation; parties can go to trial on
“facts-in-issue”; and finally, legal arguments can be made by the counsel.
However, we see that in cases where the substantive law is itself in flux
due to oscillating stances by the superior courts on what the law is, it
becomes impossible to determine whether a cause of action exists;
whether a crime has been committed or not and what the factual
ingredients of the same need to be. In such cases, our inherited system of
“pleadings first-issues next-the trial-then legal arguments-and finally
judgment” seems odd and unworkable. Pleadings and charges are framed
on the basis of the so-called substantive law – but if the substantive law is
itself grey, it seems very odd to go to trial before thrashing out the
substantive law first.
The second kind of situation where our system can cause befuddlement is
where the substantive law is changed, after the filing of the suit. For
example, a partition suit is filed by two sisters against three brothers
claiming a share in the self-acquired and ancestral properties of the
father, who was the kartha of a Hindu family governed by Mitakshara law.
After the filing of the suit, amendments are brought about to the
substantive law namely, section 6 of the Hindu Succession Act, 1955, to
the effect that even daughters of coparceners become coparceners in
Hindu Joint families and can stake a claim in ancestral property. Now, as
on the date of the institution of the suit, the daughters had no right to
coparcenary property. However, by the time the judgment is rendered,
the law has conferred them a right. How should the court now proceed?
Should it allow an application for amendment and decide the case on the
basis of the substantive law as existing on the date of judgment? Or
should it only consider the cause of action as on the date of institution?
These questions have been answered by the Indian Supreme Court,
especially in judgments discussing the retrospective operation of civil and
criminal statutes. But this is indeed fertile ground for dispute.
Third, English procedure, like the language, is not without its anomalies.
Pleadings are held sacrosanct and parties must solemnly verify pleadings:
they must sign each page; swear to an affidavit in support thereof and
now, under the Commercial Courts Act, also swear to a long-winded
“Statement of Truth”; suppression of material facts is not permitted; false
statements can lead to prosecutions for perjury. However, after being held
to a very high standard of honesty in pleadings, once the adversarial
evidentiary process begins, there is no legal compulsion to reveal
evidence that might be against you; you may suppress material
documents or witnesses – unless the opponent compels you to reveal
documents using the process of discovery. Only now, under the new
Commercial Courts regime, a duty to produce all documents – whether for
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or against you- is placed upon the parties. But it remains to be seen how
the Indian Supreme Court will interpret and apply these provisions in what
has always been considered an adversarial system.
Fourth, our unique Indian ecosystem within which the English law of
pleadings must operate has resulted in many Supreme Court judgments
that are probably unique to Indian law. Because of the fact that pleadings
might have been drawn and drafted by lawyers from rural areas not very
conversant with English, the Supreme Court has indicated that we must
read pleadings as a whole, in the light of the reliefs sought. Stray
tangential statements are not to be highlighted. Even if certain pleadings
are not raised, if it appears from the record that the opponent went to trial
knowing the case he must meet, then insufficiency of pleadings will not be
a ground. Yet, in spite of these benevolent approaches to pleadings, the
Indian Supreme Court is not averse to deciding cases on the basis of
deemed denials in pleadings - a cruel technical rule – that continues to
decide the fate of cases. Our system of pleadings is so sophisticated that
the Indian Supreme Court is still tied up in knots over questions such as
whether contradictory prayers and pleas are permissible or not.
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