BOOK REVIEW Growth of Legal System in Indian Society by and Srirama; Allied Publishers Private Limited New Delhi, 1980, pp. viii + 217, Rs. 70.

A few years ago the Indian Council of Social Science Re- search entrusted two well-known scholars in two different dis- ciplines with a research project on "Judicial Values and Insti- tutions in Indian Tradition." One of them, Dr. Indra Deva, is a Professor of Sociology and the other Dr. (Mrs.) Srirama Indradeva is a scholar. A conspicuous consequence of their continued collaboration is the production of the book under review titled Growth of Legal System in Indian Society. The title of the project appears to disclose the theme of the book better than the present title, as the book deals with juridical concepts and legal institutions in ancient from the period of the to that of the later . Indian legal literature is not wanting in studies on law and legal procedure in ancient India. Apart from the classical studies by European scholars like Buhler, Jolly, Keith, Lingat Max, Muller and Winternitz and Indian Scholars like Jayaswal and Kane, there are also a few recent studies such as Sukla Das's Crime and Punishment in Ancient India (1977) and M. K. Sharma's Court Procedure in Ancient India (1978). Almost all of them tend to jumble together all the available material on a topic drawn from diverse textual sources belonging to different eras in the history of the evolution of Indian civilisa- tion. The result is that the patchwork that is produced does not give a coherent idea of the subject dealt with at any point of time. The present work legitimately claims to be different from all of them. As the authors put it:

1. Indra Deva and Srirama, Growth of Legal System in Indian So- ciety (hereinafter referred to as Indra Deva) 207-208. BOOK REVIEW 409

Our attempt in the present piece of research has been to try to draw the broad outlines of the social forces that lent distinctive characteristics to judicial values and insti- tutions at various phases of the genesis and growth of Indian civilisation.

They point out, for instance, how the judicial system responded to the growing needs of commerce and industry, and developed a high degree of complexity and sophistication in the era of the later smritis. The first chapter of the book is devoted to a study of the broad patterns of social change and the conception of justice. After pointing out that ancient Indian law, unlike modern law, covers not only legal codes but also prescribes codes of ethics and religious practice, and that the customs and values of indi- genous peoples as also those of the invading hordes that came to India from time to time contributed greatly to the traditional legal system, 2 the authors proceed to state that the - suthrco-s closely followed the ancient vedic norms. 3 Referring to which, though it had only an ephemeral existence as a dominant influence on social values and attitudes, they say that perhaps it caused the greatest social upheaval that occurred in Indin. 4 Soon however the -s countered Buddhism by codifying the norms of the Brahmanical revivalist movement without discarding the law relating to commerce that was deve- loped during the Buddhist period. Intricate conventions and customary laws of various trading guilds and castes were incor- porated into an integrated legal system. 5 This process of inte- gration along with systematisation, and sophistication of legal principles and procedures, the authors point out, reached its zenith in the later smriti-s. 6 As much had happened since the early vedic times the smriti-s, though they claimed the authority

Id., at 2 Id., at 8 Id., at 9 Id., at 11 Ibid. 410 COCHIN UNIVERSITY LAW REVIEW Riilt)

of . the for almost everything they had laid down, could not revive the ancient vedic society in its plenitude. However, composed as they were by , they served the interests of the Brahmanas well. The authors conclude the chapter with the observation that -the old vedic racial discrimination was hardened into caste hierarchy and is still at work when hardly any justifiable racial or cultural difference exists.'

The second chapter deals with sources of law. There is a lengthy comprehensive list of source books ranging from the Rigveda (c. 1500 B.C.) to Vacaspati Misra's Vivadacinatamani (15th century) and Prataparudradeva's Sarasvativilasa (16th century). What is presented here is not a bald list; the name of a , sniriti or commentary is followed by a short descrip- tion of its contents and discussion of its authorship and probable date of composition.

The third chapter which dwells at some length on judicial Institutions and procedure is of great interest to us at the pre- sent time. It delineates the development of the judicial system from the very early days when sabha and samiti (which term, incidentally, is perhaps etymologically related to the English word committee) comprised the contemporary tribunals to the days when kulani, sreni, nuga and shared, though to a limited extent, judicial functions with sabha which decided all manner of disputes. There were also special tribunals entrusted with the duty of deciding disputes among certain categories of litigants like soldiers, traders and members of /various: other professional bodies. The chapter presents a detailed description of legal procedure before the sabha. What is perhaps most re- nlarkable about the procedure is that disputes were adjudicated not by a judge sitting in 'singular' splendour but by a panel of judges or a panel of judges and assessors. According to Manu, Yagnavalkya and , a part from the chief judge there should be some sabhya-s or assessors in a court of justice. Brahaspati is of the view that the number of sabhya-s could be seven, five or three. Even though the King was considered the ultimate dispenser of justice on earth he was not to act single-

7. Id., at 15 BOOK REVIEW 411 handed. According to Yagnavalkya a King should enter the hall of justice in the company of learned Brahmanas and ex perienced ministers and decide disputes in accordance with the rules laid down in the Dharniasastra. Katyayana expressed an identical opinion when he said that the King should be assisted by other members of the court of justice. Baudhyayana and Vasistha were emphatic that the court justice should consist of ten members, preferably Brahmanas. If ten learned Brahmanas were not available, five or three or even one could constitute the court provided he was learned in sacred law.' This conces- sion to the constitution of a single-member court in the event of non-availability of a greater number of Brahmanas is accom- panied by a strong caveat from Baudhyayana that when a doubt arose a single learned person should not hand down a decision. This would be tantamount to saying that where there was no actual, undoubted dispute about an issue before the court be- cause of the facts or the point of law or both were clear, a single judge could hand down an opinion which undoubtedly, in the usual course, was subject to confirmation by the King or his representative. The judges had to reach a unanimous decision before pronouncing their verdict.

Though a trial de 170V0 may be ordered in certain specified instances, as in the case of a person losing his claims through dishonesty of witnesses or judges, there does not appear to have been any provision for a multiplicity of appeals.

Katyayana suggested that when a witness gave his testi- mony in the form of a narrative, it should be taken down with- out the King or the judge putting too many questions to him. This recommendation probably proves that Katyayana was not in favour of cross-examination or re-examination of witnesses as is the practice in present day judicial procedure. It may however be mentioned that the very appellation of the judge was pradvivak, one who puts questions, presumably with a view

Kalidasa stresscd the principle of collegiality when he said, that even if a King was very learned he should not decide a dispute by himself because that was not fair (Malavikagnirnitra, I). Indradeva at 4, 210-211. 412 COCHIN UNIVERSITY LAW REVIEW to finding out the truth. It may be that he could ask questions of the parties to the dispute as well as the witnesses.

In the next three chapters there is detailed discussion of three branches of law, namely law of inheritance, law of con- tract and criminal law. The details given of the law of inherit- ance and of criminal law are perhaps of only historical interest to us, as modern codes or statutes have virtually replaced the rules laid down in the early Sanskrit texts. No one is likely to be inclined Ito resuscitate the old rules as the present day ones are considered more progressive and humane and better suited to modern social conditions. When reforms are suggested in these fields it is done not by looking back to ancient days, but by looking forward to the future where one envisions a more pro- gressive society dedicated to the cause of greater freedom of choice, social justice and general well-being. As for the law of contract the picture may look at little different. The Indian Contract Act 1872 does not purport to be an exhaustive code. In spite of certain minor concessions accorded to Indian ways of thinking in the drafting of the enactment, there can be fur- ther refinements or modifications which would be considered essential to be made. One of them will be the concept of con- sideration in the law of obligations. To the Indian mind a pro- mise is a promise by which one is morally and legally bound except when it is immoral or illegal, without any need for a quid pro quo to import legal effect into it. The authors point out that the habit of expecting something in exchange was asto- nishing to the settlers. It was considered to be a despic- able notion entertained by the commercial-minded indigenous Pani-s, a notion which the depreciated. It would seem that in ancient India we were more inclined to cherish the con- cept of causa (cause), now prevalent in civil law countries, rather than the idea of consideration imported from England by a commercial enterprise called the East India company.

In the concluding chapter after setting out the main objectives of the study, the authors proceed to summarise their findings given in the earlier chapters and also to highlight the impact the dual system of laws, one set of norms for the Aryans and another for non-Aryans had on the society. This duality BOOK REVIEW 413 seemed to have crystallised into an institutionalised arrangement that continued through millennia." In the system of law which subseqently developed is seen a good deal of legal discrimination among persons of different castes based on what is known as yarnasrarna." Women also were discriminated against. This dis- crimination too may have had its basis in varnasrama. If may be that as the invading Aryans were short of women, they had to take wives from among the non-Aryans who could not, according to Aryan concept, be treated as their equals irrespec- tive of considerations of sex or personal intimacy. The authors call attention to the fact that in he Rigveda the word `vadhu' is used for a bride as well as for a female slave.12 When Buddhism preached and popularised the concept of equality, it was found necessary for the Brahminical law-givers to accept many of the non-vedic practices prevalent among the masses with a view to weaning them from the new doctrine. They had also to give up some of the old Aryan customs such as niyoga and widow remarriage. It was sought to legitimize deviation from vedic precepts and practices by declaring them `Kalivarjya,' that is, people had become unfit to follow vedic norms because of the influence of the degenerate age. 13

The merchant class appears to have achieved considerable importance during the period of the later smriti-s where pro- visions regarding various kinds of commercial transactions seem to have acquired a high degree of sophistication and refinement. Katyayana recommended the inclusion of some merchants among the members of a court of justice. This indicates the importance that the commercial community had secured for themselves by that time." The employment in the book of such exotic or unsuitable expressions gas "legal personage" for legal personality (p. 168)

Id., at 208. Ibid. Id., at 209. Id., at 210. Id., at 61.

414 COCHIN UNIVERSITY LAW REVIEW 19 h

and "martial law" for military law (p. 3) would incline one to assume that some degree of collaboration, or at least a little effective consultation, with a lawyer interested in the subject of the study would have been helpful in the preparation of this interdiciplinary research report. Along with the accumulation of information and the clarity of expression presumably provided by the Sanskrit scholar and the valid and reasonable conclusions drawn by the sociologist, such collaboration or consultation would have perhaps helped to place certain concepts and insti- tutions in clearer focus, making them more easily fit into the general picture. This observation is not intended to convey the idea that the picture as it is now presented is in any way blurred. Far from it, the book reads easily and well and is virtually devoid of legalese. Perhaps this may not have been so if a lawyer who happened to be not very sensitive. to the niceties of language Or inclined to indulge in legal jargon, were inducted into active collaboration!

The great many pieces of information, unfamiliar to the general reader, provided in the book and the conclusions drawn from them by the authors are of immense assistance to any one who desires a deep insight into the cultural milieu ancient India presented. The -various rules of law and the legal system in general may be viewed as a fact of that cultural integration which seemed to have taken place in those early days. A few elements in the legal culture of those days, evocative of emulation at the present time, have already been noticed. With its immense wealth of scholarship and lucid style the book provides richly rewarding reading material not only to the general reader but also to the common run of specialists in Indological studies.

Joseph Minattur*

M.A., J,D., PhD,, LL.D. D.C.L, of Lincoln's Inn. Barrister, Visiting Professor, University of Cochin. Lectures on Criminal Procedure by R. V. Kelkar, Eastern Book Company, Lucknow, 1980 pp. xxxii + 371; Rs. 25.

The study of criminal law will not be complete without a thorough knowledge of the procedural aspects. Many writers have contributed much to the field of substantive criminal law; but only a few have produced standard works on the procedural side. Owing to the scarcity of adequate materials the study of criminal procedure is rendered difficult. R. V. Kelkar's Lectures on Criminal Procedure removes this difficulty to a great extent.

The book under review, a hand book on criminal proce- dure, is primarily meant for law students, and as says the author himself, not for legal practioners. With professional skill he makes the book interesting reading and provides the students with new insights into the basic principles of criminal procedure. The author has arranged the subject, mainly based on Cri- minal Procedure Code 1973, in twenty comprehensive lectures. Various stages of criminal procedure - investigation of offence including search and seizure, cognizance by courts, trial, appeal, revision and bail - are discussed in a lucid and simple manner.

The law of criminal procedure is meant to be comple- mentary to substantive criminal law and has been designed to look after the process of its administration. Pointing this out the author gives brief sketch of the Criminal Procedure Code 1973 and discusses the functionaries under the Code.

1. In the preface of the book the author has pointed out that the pre- sent book is an abridged and improved version of Outlincs. of Criminal Procedure published in 1977. That book has already beer reviewed in one of the previous numbers of the Cochin University Law Review. See [1978] C.U.L.R. 134. 416 COCHIN UNIVERSITY LAW REVIEW

Search and seizure are the methods through which material objects or documents are procured during the investigation, en- quiry and trial. A brief account of this is laid down. The table given at the end of the Lecture helps students to get a clear idea at a glance. Dealing with local jurisdiction of the courts and the police, the author points out that the availablity of witnesses and sense of social security are some of the factors which are taken into consideration for determining the place of trial.

Investigation and trial take a long course causing great delay in disposal. This is amply explained in the book. The author even suggests reforms. Preliminary procedures in the court such as cognizance of the offence, issue of process and committal proceedings are discussed. 'Bail' forms the topic of another important lecture. It would have been more enlightening had the author discussed in more detail the recent cases on anticipatory bail. Brevity might have been of more concern to the author. On his jurisprudential excursion to the merits of adversary system of criminal procedure the author makes full exposition of the attributes of fair trial. A detailed account of the types and features of trial procedure is given. There is an elaborate discussion on the trial of warrant cases and summons cases. Principle of issue-estoppel, compounding of offences and withdrawal of complaint do not escape author's notice. 'Charge' is really an interesting lecture.

The judgement, the outcome of the court deliberation, gives reasons for the guilt or the innocence of the accused. The forms and contents of judgment and factors influencing judicial dis- cretion in sentencing are critically examined. The punishments now prevalent in the country form part of another lecture. The provision empowering the court to order the convicted person to pay compensation and costs, according to the author, is a significant one of the Criminal Procedure Code. The author has adequately explained the salient features of this provision in- corporating the latest case law. Individualisation of crime and punishment is getting more and more acceptance in recent years. ROOK REVIEW 417

Modern penology considers the - circumstances in which the offence committed as a relevant factor in formulating the sen- tence. Does the Criminal Procedure Code render an assessment of similar factors feasible? The author rightly answers this question in the negative. He says, "in our processual system there is neither comprehensive provision nor adequate machi- nery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict of sentence." 2

The lectures on appeal, review, revision and execution of sentence are notable. Provisions for the prevention of crime, removal of public nuisance and other preventive actions against breach of peace are all discussed. The concluding lecture is mainly based on sections 125-128 of the Criminal Procedure which provide for speedy, effective and rather inexpensive remedy for wives, children and parents.

It is an accepted fact that in the present day scholarly legal writings there is a definite communication gap between the author and the reader. This book is an exception. The language of the author is lucid and the style simple. Topics are arranged in a systematic manner with cross reference to statutory pro- visions. The book is very useful to students of law as an aid to the study of criminal procedure and even to legal practitioners as a ready reference. The model questions and exercises given at the end of each lecture are highly beneficial to students. Special mention can be made on the elaborate subject index at the end of the book.

Departing from the usual section to section treatment of Criminal Procedure Code, the author has adopted a problemic treatment with analysis on the relevant sections. Needless to say that this is of great advantage to the students. The discussion of cases is, however, felt quite inadequate. The author has re- ferred to a large number of cases in the footnotes. But a more

2. R. V. Kelkar, Lectures on Criminal Procedure (1980), p. 241. 418 COCHIN UNIVERSITY LAW REVIEW (9 a) detailed discussion, at least of the leading cases on the topics dealt with, would have been greatly beneficial to the students.

Inspite of these minor infirmities, the book presents a clear and helpful analysis of the law relating to criminal procedure in India and is a notable contribution to the legal literature in that field.

M. C. Valson*

B.Sc. (Calicut), ILM. (Cochin), Research Scholar, Department of Law, University of Cochin.