Introduction
The dichotomy between the procedural and the substantive law has been argued for around two centuries now, with theorists arguing the relevance of procedural justice at par with substantive justice, the current article would maintain that this substantive law is generally at par with procedural law, however, when a conflict arises the procedural right must give a way to the substantive right Such that the Courts must not uphold technicalities of law, but justice must be done, especially when the CPC itself contains provision for giving effect to substantive rights, and the acceptance of the doctrine of fruits of poisonous trees in India.
As a general enigma of law, it is known that substantive law takes precedence over the procedural law such cannot give which the substantive law does not provide, at the same time, it cannot eliminate a right which is provided by the substantive right.[1]
Role of Procedural within the Scheme of Substantive Law
The purpose of procedural law is to ease and advance justice. As a result, the procedural standards must be broadly applied in order to make the enforcement of substantive rights successful. Courts must not take an overly technical approach when interpreting and administering procedural enactments
In the case of Dhannalal v. Kalawatibai, J. Lahoti clarified the relation between the substantive and a procedural law and observed that “Procedural law cannot dishonor substantive law by surrendering to complexity subjection…… When the legislation fails to offer a way and precedents fail to guide, it through sound logic, vices such as reasonable, reasoning, common sense, and the desire for the public good serve as guides for people who make decisions. Wrong must not go unpunished, and right must not go unenforced. When a forum does not obviously exist or when its existence is questioned, it should be revealed.”[2]
Further, on multiple occasions the Supreme Court had observed that substantive law is schemed to prevail over the procedural law, such that on a question arising out of Order XXII CPC[3] in the case of Banwari lal v. Balbir Singh[4] on a delay in bringing legal representatives before the court, procedural rules which are intended to achieve justice and should be construed in such a way that they do not become criminal laws for punishing wrongdoers. Procedure is intended to aid in the administration of justice rather than to thwart it.
Furthermore, it was observed by the Supreme Court in another case of Collector Land Acquisition, Anantnag v. Mst Katiji[5] When substantial justice and technical pecularities are set against each other, the substantial justice should win. This is significant as it is recognized that the judiciary is respected not because it has the technical ability to legitimize unfairness, but because it is capable of eliminating injustice and is expected to do so. When an order of dismissal is passed on merely failing to pay up the penalty amount for the final order, the order itself cannot be denied under the Customs Act, and it would amount to taking too technical a view of the matter merely on the ground that there is a absence of a positive provision under a statue to authorizing a Tribunal to restore such an appeal.
Similarly, in the case of Ramankutty Gupta v. Avara[6] the Supreme Court held that it must be noted that the procedure is the handmaiden for justice and unless the procedure concerns the jurisdictional issue, it should be qualified to subserve substantial justice. Therefore, technicalities would not stand in the way to subserve substantive justice, except when the question of jurisdiction arises.
Context of Civil Procedure
In the context of the civil procedure code we could find the implicit existence of the superiority of the substantive right over the procedural right in the scheme of various provisions within the code, first instance could be the relation between these right in the context of Section 9 of the Code which provides for jurisdiction of civil courts to try all matters except expressly or impliedly barred by any substantive right (emphasis supplied) construed through an interpretation of Section 9 of the CPC by the Supreme Court in the case of Sri Ganga Bai v. Vijay Kumar[7] held that even when a suit is of frivolous nature there can be no denial to the person of his right to approach the court under the prescribed jurisdiction and maintainability of a suit doesn’t require the backing of any authority, however, this right may not be available to a person when the statute specifically denies it. This evolved idea is undoubtedly for the advancement of substantive law, so that a legally enforceable right is not denied due to a technicality, and an example of such right could be Section 80 of the Representation of Peoples act, 1951.[8]
Further, Order 7 Rule 11 of the CPC,[9] authorizes the rejection of plaints at the beginning, and one of the reasons for rejection is that the claim appears to be forbidden by any legislation based on the declaration in the plaint. As a result, a plaint of a claim that seems from the averments to be forbidden by any Act or legislation is subject to be dismissed at the outset. There may be situations when a suit appears to be barred by a statute like the limitation act but the existence of factual scenarios could surpass the a fear of tossing out the case In such circumstances, an issue about the action’s maintainability should be constructed or the fact that whether it is barred by a specific provision of the Act must be addressed and decide it either as a preliminary question or alongside the other issues raised in the complaint. Thus, in a trespass litigation in which the defendant claims to be a tenant, the defense will not obviate the court’s jurisdiction. If, on the other hand, the defendant proves tenancy, the court will reject the case.[10]
Section 151 of the Code is an illustration of how civil courts can conduct real and substantial justice amongst parties when the Code is silent on a particular procedural issue. The method provided cannot restrict or otherwise impair the court’s ability to issue any orders as may be required in the interests of justice or to prevent misuse of the Code’s mechanisms. This is not a supplementary authority granted to any court, but rather an intrinsic one. It cannot, however, be used in a way that contradicts stated procedural law. Further, ancillary issues of extension of time in filing the written statements etc. could be exercised by the Courts despite the existence of procedural law as the approach of the code on these issues is very flexible which extends the time to as long as 120 days in the case of written statements, also in the case of Salem bar association v. Union of India[11] where it was addressed that the provisions regarding these submissions were intended to be advisory in nature, and also the courts have adequate legal authority to allow the defendant extra time to file a written statement if required in pursuit of substantial justice. Thus, it could be concluded that the procedural law in itself provides leeway for the development and application of the substantive justice over procedural technicalities.
Doctrine of Fruit of Poisonous Trees
As a general rule, the ends don’t justify the means on the question of admissibility of evidence, however, the approach followed in India differs slightly, despite the operation of due process and the procedural established by law in India. One of the earlies realizations of the doctrine were found in R v. Leatham, this was on the issue of allegation of corrupt practices where the agent provided a letter written by the individual accused of bribery to his agent. the secretary of the Commission requested and produced this letter. The admissibility of the letter was challenged because it was found as a result of an unlawful statement given by the accused.
Here Crompton, J. said, “It matters not how you get it; if you steal it even, it would be admissible” thus the letter was found to be admissible. The issue was also presented before the Supreme Court in the case of Ukha Kolhe v. State of Maharashtra[12] in this case the issue was of admissibility of the evidence of blood sample where the sample was collected with an illegal procedure, however, rejecting the unlawful evidence it held that the evidence cannot be held admissible when the due procedure has not been followed, as the power to do a certain thing in a certain manner when given, must be done in that manner alone.
However, a radical change in the policy was witnessed in the case of R. M. Malkani v. State of Maharashtra,[13] in this incident, the police attached a tape-recording device to a telephone with the agreement of just one of the parties to capture the discussion; however, the other party claimed that the tape-recorded chat was obtained illegally, the court opined that even if the evidence is illegally admitted it would be admissible before the court of law. Likewise, in the case of Pooranmal v. Director of Income Tax [14]that an evidence obtained through illegal search and seizure cannot be denied unless it is specifically or impliedly prohibited by the Constitution or any other law of evidence. Though, certain later judgements had tried to balance the approach departing from consequentialism, but the essential practice is that procedure would not deny a remedy under the substantive right.
Conclusion
However, this consequentialists approach faced a huge constrain in the form of Puttaswamy’s judgment which provides an express prohibition in the breach of privacy of a person, leading to reconsiderations of the doctrine of fruits of poisonous tree itself. But still the application of a flexible procedure may not be hindered when we view the remedy of substantive right with respect to the procedural rights such as the civil procedure code. And it is safe to say that a procedure cannot be said to be of such an effect that it takes precedence over the substantive rights, but this may not be the position when the procedure is essential like the question jurisdiction or the application of the principles of natural justice i.e. audi alteram partum and nemo judex in causa sua.
References:
[1] Arun Keshavrao Mone (Mane) v. Ramesh Balvant Baxi, AIR 1998 SC 1624.
[2] Dhannalal v. Kalawatibai, (2002) 6 SCC 16.
[3] The Code of Civil Procedure, 1908. Order XXII.
[4] Banwari lal v. Balbir Singh, Civil Appeal No. 6567 of 2015, The Supreme Court of India.
[5] Collector Land Acquisition, Anantnag v. Mst Katiji, AIR 1987 SC 1373.
[6] Ramankutty Gupta v. Avara, AIR 1994 Sc 1699
[7] Sri Ganga Bai v. Vijay Kumar, (1974) 2SCC 393.
[8] Civil and criminal procedure for furtherance of substantive justice, 3 Hon’ble Allahabad High Court (2015). http://www.allahabadhighcourt.in/event/.
[9] The Code of Civil Procedure, 1908. Order VII, Rule 11.
[10] Supra note 8.
[11] Salem bar association v. Union of India, (2005) 6 SCC 344.
[12] Ukha Kolhe v. State of Maharashtra, (1963) INSC 28.
[13] R. M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
[14] Pooranmal v. Director of Income Tax, (1974) 1SCC 345.
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