Lesson 7: Techniques of Law and Remedies I

Section 1: The Procedural Framework and Theories of Punishment

Core Concept and Simple Definition

The machinery of legal justice operates through two procedural enactments: the Code of Criminal Procedure (Cr.P.C.) and the Code of Civil Procedure (C.P.C.). These procedural frameworks solve the practical puzzle of how to prosecute, adjudicate, and punish violators of the law. The techniques of law and remedies rest upon the fundamental legal dictum: "for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately."

Clear Explanation in Basic Words

In human society, there has always been a race between law-makers and law-violators. As people became smarter and technology advanced, and because corruption exists, lawmakers faced a serious challenge: how should offenders be punished? Jurists and legal researchers developed distinct philosophies regarding punishment. These philosophies explain why the state punishes wrongdoers and determine what kind of sentence should be imposed.

Key Classifications: Five Theories of Punishment

• 1. Deterrent Theory: A punishment is primarily deterrent when its object is to demonstrate the futility of crime and thereby teach an exemplary lesson to others. Its underlying philosophy is that "a crime is an ill bargain to the offender." Followers of this theory advocate severe penalties, including capital punishment.
• 2. Preventive Theory: This theory aims to disable the wrongdoer and create a fear of punishment in their mind. It works through three specific mechanisms:
  1. Inspiring all prospective wrongdoers with the fear of punishment;
  2. Disabling the wrongdoer from immediately committing any crime; and
  3. Transforming the offender through a process of reformation and re-education so they will not commit crime again. Punishments include imprisonment and fines.
• 3. Reformative Theory: Views crime as the result of a conflict between the character and the motive of the criminal. It aims at strengthening the character of the wrongdoer so they do not succumb to temptations, while curing their mental state. It operates on two dictums: "you cannot cure by killing" and "crime is like a disease." It uses rehabilitative techniques, opening doors of employment and self-employment to elevate their economic status and remove the motive for crime. Sanctions include probation, reformatory homes, and vocational training.
• 4. Retributive Theory: Asserts that administration of justice must satisfy the emotion of retributive indignation. It quenches the primitive spirit of private vengeance in the victim and society at large. Grounded on vindictive justice: "a tooth for a tooth and an eye for an eye." Under Immanuel Kant's retributive philosophy, punishment is justified not by any beneficial social outcome, but solely by the criminal's guilt. The punishment must fit the crime; Kant asserts: "Whoever has committed a murder must die."
• 5. Compensation Theory: Holds that the object of punishment must not merely be to prevent further crime, but also to compensate the victim. It views greed as the mainspring of criminality; if the offender is forced to surrender the ill-gotten benefits of the crime, the spring of criminality will dry up.

Why the Concept Matters

Significance: Punishment is necessary because it makes criminal conduct an unprofitable transaction, eliminating the thrill of committing offences. Without punishment, wrongdoers would be motivated to commit repeated and increasingly heinous crimes.

Section 2: Pleadings in Civil Law and the Four Core Principles

Core Concept and Simple Definition

Under Halsbury's Laws of England, a pleading is a document used in civil cases wherein a party to a proceeding in a court of first instance is required by law to formulate in writing their case or part of their case in preparation for the hearing. According to P.C. Mogha, pleadings are "the statements in writing drawn up and filed by each party to a case stating what his/her contentions will be at the trial and giving all such details as his/her opponent needs to know in order to prepare his/her case in answer."

Clear Explanation in Basic Words

Before a civil court can hear a case, both sides must set down their exact claims and defenses on paper. This document prevents surprises at trial, alerts the opponent to the exact case they must meet, and informs the judge of the precise dispute requiring determination.

The Four Principles of Pleading (Order VI, Rule 2 of the C.P.C.)

1. Every Pleading Must State Facts and Not Law: Pleadings have an affirmative command (state facts) and a negative command (do not state law, legal provisions, legal conclusions, or conclusions of mixed law and fact). The court is bound to take judicial notice of the law applicable to pleaded facts. For example, if a court finds suo motu that the statutory rules under which a Deputy Inspector General (D.I.G.) of Police dismissed a plaintiff were ultra vires and inoperative, the court must independently declare the dismissal illegal.
   Exceptions to the Rule: (i) Foreign law (courts are not bound to take judicial notice of foreign enactments); (ii) Customs; (iii) Mixed questions of law and fact; (iv) Legal pleas; and (v) Inferences of law.
2. Every Pleading Must State All the Material Facts Only: Material facts are those that a plaintiff must allege to establish a right to sue, or that a defendant must allege to establish a defense. Under the Supreme Court ruling in S.N. Balakrishna v. George Fernandez (AIR 1969), the omission of a single material fact leads to an incomplete cause of action, making the statement of claim bad. Parties must only plead facts material at the present stage, without anticipating the adversary's objections.
   Exceptions to the Rule:
   • Condition Precedent: Averment of performance is implied. In a building contract requiring an architect's certificate before payment, the plaintiff builder need not plead having obtained the certificate; it is for the defendant to plead its absence.
   • Presumptions of Law (Order VI, Rule 13): Neither party need allege facts presumed by law in their favor or where burden of proof lies on the other side (e.g., consideration for a bill of exchange).
   • Matters of Inducement: Introductory facts introducing the parties, their business, and relationships leading to the dispute are tolerated.
3. State Facts Relied Upon and Not the Evidence: Parties must state material facts, but not the evidence by which those facts will be proved in court. Special rules govern this principle:
   • Mental Condition (Order VI, Rule 10): Malice, fraudulent intention, or knowledge may be alleged simply as a fact without setting out the evidentiary circumstances.
   • Notices (Order VI, Rule 11): Notice to any person may be alleged as a fact without detailing its precise terms unless the exact form is material.
   • Implied Contracts / Relations (Order VI, Rule 12): Contracts or relations deduced from conversations or correspondence may be alleged generally as a fact.
   • Exception: In writ petitions and election petitions, matters of evidence must be stated in support of allegations.
4. State Material Facts Concisely but with Precision and Certainty: As emphasized by Pal, J. of the Calcutta High Court, pleadings must be both concise and precise. Drafters must: (a) omit unnecessary allegations, (b) omit unnecessary details when alleging material facts, and (c) exercise proper care regarding language.

Section 3: Drafting Legal Documents: Planning and Writing

Core Concept and Simple Definition

Drafting is the combination of law and the facts of law in a written language form. It refers to preparing a legal document for legal purposes using precise legal language understood by persons with legal training.

Clear Explanation in Basic Words

Drafting is an articulated skill where the drafter must choose the exact legal concepts and matching facts. The success of a lawsuit frequently depends directly upon the quality of the draft. Drafting is executed under two sequential heads: Planning and Writing.

Stage I: Planning a Good Draft

• Objective: Determine what the document must achieve in legal terms (the purpose of the Bill, Part, or section).
• Framework: Work out the overall conceptual structure by grouping material into Parts, subparts, and sections.
• Order: Arrange all material in a structured, logical sequence.

Stage II: Writing a Good Draft

• Headings: Summarize or indicate the specific topic briefly; use liberally with an eye to the table of contents.
• Sections: Maintain one coherent group of ideas per section in a narrative style; avoid excessive cross-references; keep subsections to five or fewer, avoiding subparagraphs.
• Sentences: State the main point early; keep sentences short and simple; focus on verbs; avoid nominalizations; avoid passive voice; keep subject and predicate close; punctuate effectively. Use active verbs:
  1. Use "consider" instead of "give consideration to"
  2. Use "applies to" instead of "is applicable to"
  3. Use "pay" instead of "make payment"
  4. Use "recognise" instead of "give recognition to"
  5. Use "concerns" instead of "is concerned with"
• Words: Select the simplest word that conveys meaning; eliminate unnecessary words; avoid archaic terms; consistently use gender-neutral language; define terms truthfully and helpfully.
• General Rule: Maintain consistency, and prefer positive statements unless a negative formulation is distinctly clearer.

Section 4: Remedial Measures in Civil and Criminal Law

Core Concept and Simple Definition

Legal remedies are broadly classified into four major categories: damages, restitution, coercive remedies, and declaratory remedies.

Remedies Under Civil Law

Civil remedies are primarily monetary, compensating the injured party for actual loss, physical pain, mental suffering, and litigation costs:

• Compensation: Financial relief awarded to a victim to offset actual losses, pain, and suffering caused by a civil wrong.
• Specific Relief: Governed by the Specific Relief Act, 1877 (originally Sections 15 and 192 of the C.P.C. of 1859). It is termed specific because it is relief in specie—granting the very thing to which the suitor is entitled. Its four statutory forms are:
  1. Taking possession of property and delivering it to a claimant who is out of possession;
  2. Requiring the actual performance of a contract;
  3. Compelling the performance of a statutory duty; and
  4. Preventing the doing of a wrong.
  Specific relief is granted solely to enforce individual civil rights, never to enforce penal laws.

Remedies Under Criminal Law

Criminal remedies are generally known as sentences. When monetary compensation is deemed inadequate by the court, punitive damages are ordered. Under a punitive damage sentence, the court may impose a fine plus imprisonment (such as for violations of Indian Railways rules). Both civil and criminal legal systems serve a dual social function: they are facilitating (helping victims organize) and enabling (empowering citizens to contest cases in court to seek justice).

Section 5: Constitutional Writs and Public Interest Litigation (PIL)

Core Concept and Simple Definition

Under the Right to Constitutional Remedies (Articles 32–35), citizens may move the courts to enforce their fundamental and legal rights. An aggrieved citizen may file a writ petition in the Supreme Court under Article 32 for violations of Fundamental Rights, or in the High Court under Article 226 for violations of Fundamental Rights as well as ordinary legal rights. Consequently, the jurisdiction of the High Court is wider than that of the Supreme Court.

The Five Types of Constitutional Writs

• 1. Habeas Corpus ("To Have the Body"): An order calling upon a person who has unlawfully detained another to produce the detainee before the court. Applies to illegal confinement and kidnapping cases.
• 2. Mandamus ("Command"): An order of a superior court commanding a person holding a public office, a public authority, or the Government to perform or refrain from performing a specific public duty. Example: directing a police officer to register a First Information Report (FIR) and take lawful action.
• 3. Prohibition: Issued by a superior court to an inferior court or tribunal to prevent it from exceeding its jurisdiction and compel it to remain within prescribed statutory limits while proceedings are ongoing.
• 4. Certiorari: Issued to quash an order already passed by an inferior court or tribunal in excess of its jurisdiction. While Prohibition prevents an inferior tribunal from continuing an unauthorized trial, Certiorari quashes an ultra vires order after it has been made.
• 5. Quo Warranto ("What Is Your Authority?"): Issued against the holder of a public office calling upon them to show by what legal authority they hold that office (e.g., challenging an unauthorized person acting as Customs Commissioner).

Public Interest Litigation (PIL) and Article 39A

The concept of Public Interest Litigation aligns with the directive in Article 39A of the Constitution of India to deliver prompt social justice. Prior to the 1980s, only the directly aggrieved person had locus standi to approach the courts. Under PIL, any public-spirited individual, not necessarily the victim, may approach the court to protect public interest, or the court may initiate proceedings suo motu.

The textbook defines public interest as "any act for the benefit of public," encompassing pollution, terrorism, road safety, construction hazards, and chemical hazards. Landmark instances cited in the textbook include:

1. Litigation against sports federations following the Commonwealth Games issues;
2. Subhash Kumar v. State of Bihar; and
3. Sheela Barse v. State of Maharashtra, where the Supreme Court acted upon a letter received from a journalist complaining of custodial violence against women prisoners in the city of Bombay.