BOOK REVIEW

Law Relating to Power of Attorney by S. Parameswaran, Subba-lakshmi Publications, Cochin, pp. 324, Rs. 801-

Here is a book relating to an area on which authoritativeworks are rare. Written by a lawyer who possesses considerableexperience at the Bar and is bestowed with an academic bendof mind Law Relating to Power of Attorney is a scholarly ex-ploration with a utilitarian point of view into the law whichgoverns the mechanics of getting things done by others throughthe process of authorisation.

The book has been written not merely to suit the needsof the lawyer. The author has in mind a wider constituency thanthat of the legal community. The book designed to be usefulalso to the laity, including those concerned with business andbanking, is divided into two parts.

A detailed commentary of the provisions of the Power ofAttorney Act 1882 is contained in the first part. The author hasincluded here a lot of case law — English and Indian. He hastaken care to discuss all other related and relevant statutory pro-visions extracting the text of the provisions wherever necessary.

The second part of the book makes it a handy practicalguide to many. This part contains specimen forms for executingpower of attorney for various purposes. A look at these speci-men creates the impression that they are not mere specimen butcopies of powers of attorney actually executed by various per-sons for different purposes. Many a name of the parties inthese samples may be familiar to one. One may feel that givingof actual names of parties could have been avoided when copiesof the documents were given as specimen in this part.

The book has an appendix. It contains the text of the Powerof Attorney Act in the U.K.

208 COCHIN UNIVERSITY LAW REVIEW

On an overall assessment it can be said undoubtedly thatthe book contains all necessary information for a wide varietyof consumers for whom the gook is intended. Detailed present-ation of the case law is definitely an attraction.

All good things have their own defects also. The book un-der review is no exception to this rule. There are many printingmistakes. A more careful proof reading is called for while bring-ing out the next edition. When the text of the statute is givenand it is followed by the commentary of the author it wouldbe ideal if different types are used for the text and the commen-tary. Otherwise the former, mixing with the latter, would createconfusion. This aspect may be borne in mind while bringing outthe subsequent editions. Everything that has a beginning shouldhave also an end. But one sees that many quotations in thebook, because of the omission to put the marks, do not endanywhere. The binder has also made his contribution to the con-fusion. In the copy of the book under review after page 96, pages65 to 96 are again given. One may feel that this does not mat-ter for there is only a gain of so many pages and no loss sinceno pages are missing. But one cannot be so sure. If pages 65to 96 found twice in the copy under review are missing in someother copy the purchaser of the other copy will certainly notbe quite happy. Had the book been without these defects itwould have had double the attraction which it has now. Thereviewer would be happy and so would be many others, if thenext edition of this highly useful book comes out soon withoutany of the defects pointed out above.

N. S. Chandrasekharan*

* B.A., B.L. (Kerala), LL.M., Ph.D. (Cochin); Reader, Department ofLaw, Cochin University of Science & Technology.

Law of Contract, by Avtar Singh, Eastern Book Company, Luc-know (4th ed., 1985), pp. L+522, Rs. 651-

Principles of Mercantile Law, by Avtar Singh, Eastern BookCompany, Lucknow (4th ed., 1985), pp. viii ±-1064, Rs. 851-

Fundamental changes in the economic structure of the worldelevated contract law to a place of prominence. Successful oper-ation of national and international trade promoted the growthand development of this branch of law. This dynamism in thefield of contract law is achieved in India through judicial inter-pretation of the Indian Contract Act 1872. The adaptability andflexibility of the provisions of this Act enabled the courts to tideover the problems created by changing nature of socio-economicand business relations. Obviously this may be the reason forthe absence of any significant amendment to this Statute. Fre-quent decisions given by the Supreme Court and various HighCourts of this country do enrich the general principles governingdifferent aspects of the law of contract.

The complex nature of certain transaction governed by thecontract law may necessitate modification of the general prin-ciples or even creation of special rules. Many such situations aretaken care of by the Act itself. For example, special rules re-lating to contracts of indemnity, guarantee, pledge, agency andbailment are included in the Act. There are special enactmentsgoverning contracts of sale, hire-purchase, partnership, carriageetc. All the branches of mercantile law are also in the processof evolution. Constant changes in the colour and content of thelaw of contract, the base of all branches of mercantile law, makeconsequential changes in these branches as well. So an integratedand indepth study of this fast growing branch of law needsperiodical revision and updating.

The book, Law of Contract, is the fourth edition of a popu-lar and well established study on the Indian Contract Act 1872.

210 COCHIN UNIVERSITY LAW REVIEW

According to the author the mission of the book is to "study theprinciples of the law of contract through the statutory provisionon the one hand and judicial pronouncement on the other insuch an integrated way as to show a consistent development ofthe subject". Any serious reader of the book would undoubtedlyagree that he has considerably succeeded in his mission. How-ever, the admirers of the earlier editions of this scholarly workmay feel disappointed on realising that they do not fully enjoythe benefit of discussion on the enrichment of the principles ofcontract law by the steady flow of cases and statutory materialson the subject, especially in relation to English law.

Since the last edition of this book, several important legis-lation bearing on contract law were made in England. Legisla-tion like the Civil Liability (Contribution) Act 1978, the Saleof Goods Act 1979, the Supreme Court Act 1981, the Supplyof Goods and Services Act 1982 etc., do have considerable im-pact on contract law. Similarly, during the period, there had beena substantial number of significant decisions touching differentaspects of commercial law. For example, a sizable number ofimportant cases were decided in the areas of promissory andproprietory estoppel, economic duress, exemption clauses, pri-vity of contract, frustration etc. But unlike in the earlier edi-tions, the author has incorporated only some Indian decisionsand left many English decisions unnoticed.

Principles of Mercantile law, is another excellent work bythe same author. In addition to the discussions on the Law ofcontract, the book contains four important branches of mercan-tile law, namely the law of partnership, the law of sale of goodsand hire purchase, the law of negotiable instruments and thelaw relating to companies. A concise account of the broad prin-ciples of these intricate topics is given in a lucid and easily un-derstandable style. However, one glaring defect is the lack ofthorough revision. The importance of the (English) CompaniesActs of 1980, 81 and 1985 can never be neglected.

The observations regarding the inadequacies are made onlybecause these books are masterly works on the subject. Both thebooks presents a clear and straightforward account of the prin-

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ciples of contract law and its selected branches. These booksare closely tailored to the needs of the students of law. Un-doubtedly these books continue their privileged position as theoutstanding Indian works on the subject. The publishers of thesebooks, namely, Eastern Book Company, deserve commends forthe neat printing and garb and for eliminating all possible errors.

— A. M. Varkey*

M.A., LL.M. (Kerala), Ph.D. (Cochin); Lecturer, Department ofLaw, Cochin University of Science and Technology.

Equal Justice and Forensic Process: Trust and Myth by V. R.Krishna Iyer, Eastern Book Company, Luckow, 1986, pp. v± 141, price Rs. 801-

The book under review contains in printed form the SwamyRamanand Thirth memorial lectures delivered by Shri. V. R.Krishna Iyer, former justice of the Supreme Court. As an emin-ent jurist, in his life after retirement, he evaluates the legal sys-tem and as he remarks in the preface, the Republic's Constitutionwith its justice objectives signifies a great value revolution as agreat shift from the British Raj legal system. The succeedingyears after independence had witnessed severe criticisms aboutthe court and its interpretative techniques and if transformation toa new society was to be effective, according to him, a socialaudit of the Court's performance was necessary 'with creativecare and constructive daring, or from the perspective of a peo-ple oriented juricature' — this indeed is an uncommon com-ment on the judicial system with a tinge of self criticism to comefrom a distinguished judge.

The book is in three chapters. The first chapter is entitled`The Dialectics of Social Justice versus The Realities of Foren-sic Praxis.' The author has undertaken here a voyage in searchof a meaning of justice relevant to Indian context. Our Republi-can Constitution translates freedom in its fullness as Justice —Social, Economic and Political, Dignity of the individual andEquality of status and opportunity. Justice Iyer denotes, "In-justice, Inequality and Indignity make men unfree. The integralyoga of liberty and justice is basic to Swaraj."

Equality is an important aspect of justice. But how far ourlegal system provides equal justice in the forensic or judicial pro-cess and through that in the larger social context? The threelectures contained in this book is a journey in an answer forthis question undertaken by an activist judge with special corn-

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mitment to people's causes and popular and social justice. Invokingthe radical values of the Constitution, he calls for a legal tech-nology, simple, cheap, speedy and efficient to achieve the endsof social justice in its processual dimensions. Article 38 whichbinds the State 'to promote the welfare of the people by securingand protecting as effectively as it may a social order in whichjustice, social, economic and political, shall inform all the insti-tutions of national life' and article 38-A which binds the Stateto 'secure that the operation of the legal system promotes justice,on the basis of equal opportunity' particularly, providing freelegal aid, read together signal, according to him, that 'the Con-stitution is not the jural opium, of the people but the remedialrealism of the oppressed'.

Judicial integrity, ability, accountability and activist sensi-tivity relevant to Indian context means that 'justices must sub-serve, not sabotage social justice' because as Abraham Lincolnsaid 'this country with its institutions, belongs to the people whoinhabit it' and 'we are here concerned with social justice andhuman rights to the humblest soul on Indian soil' and 'we wantgrowth with justice; end to exploitation, inequity, bleeding miseryilliteracy, torture and the subculture of serfdom'. In this con-text the author points to the terrible contrast of Maharajas ofmany brands and Mlechchas of several backwardness—beggars,lepers, child workers, bonded labourers, slum dwellers, physicallyand mentally handicapped humans, unemployed youth, the sche-duled castes and tribes, etc. The nation has to be rebuilt andthe society has to be remoulded. It is necessary to 'reproCess ourdemocratic functionalism, conscientize and catalyze our arts oflegislating, justicing and administering in such a manner that man,every little man, matters'. It is in the above context that he ad-dresses the challenges of the social justice to the judicial pro-cess. The critical issue for a theory of processual justice, basedon a poverty jurisprudence, according to him, 'is to fulfil thenascent imperatives of Independence by re-structuring the legalsystem, mobilsing plural procedures and planning a judicialprocess capable of implementing developmental requirements andthe small man's access to value-loaded justice'.

214 COCHIN UNIVERSITY LAW REVIEW

In his second lecture on 'The Processual Jurisprudence ofPeople's Causes', he reminds that `the Court as a global hopeis the keeper of the country's justice conscience, watchdog ofthe polity's democratic balance and the monitor of the Consti-tution's guarantees, even amidst the clash of arms and polemicsof politics' and the judiciary should display that inventive geniusfor adaptive mutations to transform the disabled human segmentand if the courts fail here the solution will be sought in thestreets. A court where man matters should be the goal accord-ing to Justice Iyer. The five fundamentals which will radicaliseand democratise judicial remedies which he spels out in the formof a panchasheel are, firstly, democratised and humanised accessto justice, secondly, judicial procedures streamlined, rationalisedand rendered easy, inexpensive informal, flexible, compassionateand realistic, thirdly, institutional diversity and remedial plura-lity adapted to different types of litigation and layers of people,invested with mobility, even door delivery, dynamism and abilityto rely upon all sources of materials, fourthly, people's partici-pation in the delivery system of justice so that processual justiceto the common people may become a fruitful reality concretis-ing the principles of equal justice, local trials and early finalityand shaping policies on public interest law, social action juris-prudence, lawyers for the people etc. and finally, preventive jus-tice, including legal literacy, local negotiation, reconciliation, arbi-tration and other nonformal methods of dispute settlement. Tocombat the different forms of inequalities in India a new reme-dial jurisprudence to meet the actual needs of effective reliefhas to be developed. The author's plea is for a people's pro-cessual jurisprudence as based on the basic imperative of socialjustice in the Third World context.

The last lecture on 'Ideology and Organs of Popular Justice:Forensic and Para-forensic Remedies for Forgotten People's Ma-ladies' again demonstrates that equal justice and poverty juris-prudence must be twins in Third World conditions. He under-takes a constitutional and operational quest for popular justiceand takes stock of the common people's injustices in searching`for a versatile knowhow of judicial and non-forensic panaceas'.He remarks crisply: "The sacred cows of the adversary processdeserve to be slaughtered. We cannot afford a law of evidence

BOOK REVIEW 215

which defeats in practice the discovery of truth..." (at p. 122).The author, after going extensively into the pathology of thejudicial system, feels that the worst part of it is the enormityof expensive arguments. Eyebrows may be raised when JusticeIyer says from his personal knowledge that 'the Supreme Courtand the High Courts consume whole seasons of forensic argu-ments' and 'the little litigant of India is de facto outlawed by theinflated legal process'. (at p. 139).

The three lecturers in 141 pages of the book is an illustra-tion of the author's quest for a rational, simple and people ori-ented judicial process in delivering social justice to the millionsof little Indians. They also evidence the scholarly attitude of theauthor in dealing with a simple topic as this with all seriousnesswith scholarly quotations from many authorities. Though thelanguage of the book is a little bit tough, style is attrative. It isneatly printed in good layout and Eastern Book Company deser-ves congratulations in bringing out this book.

— G. Sadasivan Nair*

* B.Sc. (Kerala), LL.B. '(Delhi), LL.M., Ph.D. (Cochin); Lecturecr,Department of Law, Cochin University of Science and Technology,Cochin - 682022.

Government Regulations of Financial Management of Private

Corporate Sector in India, prepared by V. D. Kulshreshtha,under the auspices of the Indian Law Institute, New Delhi, N.M. Thripathi, Bombay (1986), pp. xxiv 306, Rs. 120i-

The welfare ideal pursued by the modern State has neces-sitated greater regulation of the economic life of the society.Corporation has been for a long time a standard form of orga-nising economic activity. In the context of State regulation ofeconomic activities, the regulation of financial management ofcorporation become significant. The legal frame work for theregulation is not precise, but scattered over a host of legislation,principal and subordinate. The governmental policy in relationto the regulation of corporate activities also remained unsettled.The growing awareness of the social responsibilities of corpora-tion necessitated imposition of greater and more effective con-trols over these bodies. However, over regulation may act as animpediment to the industrial progress. The book under reviewis a pioneer study on the impact of various corporate laws onindustrial growth. The eight-chapter study prepared by Prof.Kulshreshtha gives a lucid elucidation of this complex subject.

A vivid picture of the regulatory frame work is drawn inthe first two chapters. The discussion provides a fairly good ideaabout the legal control and regulation under which companiesare functioning in India. However, the attempt here is only togive a bird's-eye-view of the statutory materials. The findingsand conclusions are not based on proper analysis of the rele-vant factors. The capital contribution pattern of the more im-portant financial institutions and the methods and techniquesused by them to regulate the financial management of privatecorporations are discussed in chapter 4. The analysis revealsthat the public financial institutions are also "responsible for the

BOOK REVIEW 217

growth of a few large industrial houses".' The remaining chap-ters of the book contain a beautiful narration of the various as-pects of governmental control of the financial management ofprivate corporations under the companies Act 1956. The dis-cussion on managerial remuneration given in chapter seven ap-pears to be below the expectation of readers. The author hasfailed to distinguish the rationale of legislative ceiling and ad-ministrative ceiling. The last chapter containing the importantconclusions and suggestions emerging out of the study is worthyof consideration.

The significance of the book appears to be the earnest at-tempt of the author to consolidate the legal materials on thesubject. The work can be commended as a maiden attempt tostudy the importance of law and economic development. A goodbibliography given in the book help to promote further researchin this area. The comprehensive subject index increases the use-fulness of the work.

— A. M. Varkey*

1. Indian Law Institute, Government Regulation of Financial Manage-ment of Private Corporate Sector in India, N. M. Tripathi (1986),p. 191.

* M.A., LL.M. (Kerala), Ph.D. (Cochin); Lecturer, Department ofLaw, Cochin University of Science and Technology, Cochin-682022.

Release an Bail: Law and Practice, prepared by D. C. Pandeyunder the auspices of the Indian Law Institute, New Delhi, N.M. Tripathi, Bombay (1986), pp. xxiv -F 176, Rs. 60I-

Bail is an important aspect of the administration of criminaljustice. The institution of bail stands at the cross-roads of indi-vidual liberty and social or State security. The conflicting inter-ests arc to be balanced in too fine a scale that no laxity canbe afforded in the matter lest democracy is not in peril and secu-rity of the State is not impaired. The Indian Law Institute de-serves all congratulations in facilitating a detailed study on suchan important aspect of our justice system at a time when it isfelt that there are no sufficient statutory guidelines or judicialstandards regarding law of bail in India despite a few import-ant decisions of the Supreme Court pointing out the misuse ofthe bail system by the administration and the lower judiciary.

The book under review is in twelve chapters contained infour parts. Part one is on the conceptual base of bail. Historicalgenesis, Law Commission reports on bail, the matrix or evolu-tion of new law, policy considerations underlying bail and thelegal anomaly in the concept of anticipatory bail have been dis-cussed in chapter 1. The 2nd chapter is on the etimology ofthe concept of bail. A blend of the King's Peace with MagnaCarta and the need for custodial control of the accused areconceptualised in bail. The mechanism of providing bail to anarrested person is geared on the twin principles of securing thepresence of any accused person in a criminal trial as well asto place only a minimum of restraint on the freedom of theindividual. However some extended scope of this concept hasbeen given as an aberration in the application of the bail as aresult of an over emphasis on personal freedoms. The authoralso discusses this on the basis of some survey on the workingmechanism of bail in Delhi and he notices an increase in theincidence of bail jumpers. The judicial approach to bail and

BOOK REVIEW 219

the effect of liberty has also been discussed here with the helpof case law. Legal and functional aspects of bail mechanismforms the subject matter of discussion in chapter three in thispart.

Part 2 is on 'Police Role and Responsibility' in three chap-ters. Police power to arrest, rights of an arrested person, statu-tory checks on police power, police power to release on bailand the role of the police in a democracy are dealt in chapter4. Attitude of the police on bail is critically evaluated with anempirical study on the subject in chapter 5. As an alternativeto Indian procedure a project known as Manhattan Bail Projectis suggested. The basic defect of the working of our bail sys-tem as the author has noted is the lack of bona fides of securi-ties as well as their unsoundness to undertake responsibility ofproducing an accused in the court when called for. The resultof the Project launched in 1961 in co-operation with New YorkUniversity, Institute of Judicial Administration and the VeraFoundation confirmed the hypothesis that if a careful scrutinyis made which can establish proper identity and antecedents ofa person the release of such person on bail is a safe bet. Themethod used in Manhattan Bail Project was to interview anaccused sometime before his appearance in the court. The needfor departmental disciplines for police officers and Civil Rightsaction are emphasized in chapter 6 entitled Safety Mechanismsagainst Police Arrest.

Part 3 is in three chapters. The stage of police arrest formschapter 7. The police practice in detention, meaning of arrest,custody by police, sources of police power to arrest, remand toinvestigatory custody of police, causes and effects of delay ininvestigation, the need for personal liberty at the stage of in-vestigatory custody and the Law Commission's indictment onthe wrong practice of the police custody are discussed in thischapter. Use of discretion by the court in bail process, the dicho-tomy of judicial techniques, limitations on use of discretion, con-ditions for bail and the effect of discretion on administration ofjustice are the points for discussion in chapter 8. The bail pro-cess in Delhi courts is empirically tested and some conclusions aredrawn. Forms and modes of release an bail is studied in chapter

220 COCHIN UNIVERSITY LAW REVIEW

9. After a study of the forms and modes of release under theProcedure Code it is felt as an imperative need to streamlinethe forms. Need for community based bail mechanism is em-phasized.

In the concluding part, a critical evaluation of the law ofbail is made in chapter 10. Proper functioning of police power,controls on police power, speedy trial and legal aid and ser-vices are discussed in chapter 11 as pre-conditions of bail reform.A newer approach to bail law is called for in the last chapter.It is concluded that 'reform of the existing bail law would re-quire enactment of a comprehensive code to replace the exist-ing law on the subject' and 'the reformulation of bail is not tobe seen as a mere revision of the law'. It is rightly asserted thatthe law and practice relating to remand, police bail, successivebail applications on refusal of bail, detention and release ofjuvenile, women, sick and old persons' would call for discussion,debate and reformulation of the rules since the task is an ex-tensive one. •

The importance of the area under study is self evident. Itis a matter of vital interest to a democratic society to evolve autilitarian and civilised functioning of the administration of jus-tice. Sociological and empirical studies like this on such impor-tant aspects of our legal system will be a worthwhile academicexercise having immense practical value. The book will be ofuse to practicing lawyers, judges, administrators and even tolaymen who are interested in the vital freedom of the individual.It is a valuable addition to any law library.

— G. Sadasivan Nair*

* B.Sc. (Kerala), LL.B.,Delhi), LL.M., Ph.D. (Cochin); Lecturer,Department of Law, Cochin University of Science and Technology,Cochin - 682022.

Indian Constitutional Law (4th ed.), by M. P. Jain, N. M.Tripathi Pvt. Ltd. (1987), pp 953 + ixx, Rs. 1501-

During the congressional hearings into the Iran-contrascandal, Sen. David L. Boren suddenly asked Maj. Gen. RichardV. Secord a rhetorical question: "Have you read the Constitu-tion of the United States, Mr. Secord?" In part he meant tohighlight Secord's seeming indifference to constitutional processes.But it is a pertinent question mutatis mutandis relevant at alltimes and for all people; a question we should ask ourselves andto our leaders.

We have inherited a grand document, but it is not, in JamesRussel Lowell's famous phrase, "a machine that would go ofitself". It is we who keep it running; it is our common will andforbearance that has kept the Constitution alive these 37 years.And in order to keep it going, we must have a proper understand-ing of the text. Dr. M. P. Jain's Indian Constitutional Law willact as a catalyst in that process of understanding.

Dr. Jain's popular treatise was first published in 1962. Foureditions and two reprints in a quarter century may be an indexof its popularity. The 935-page text, updated till the end of 1986for the fourth edition, was a long-felt need since the publicationof the third edition in 1978.

With constant amendments (so far 55), the Constitutionhas become a dynamic document, making commentaries con-stantly obsolete. Much evolution, however, comes not in theform of amendments but in the gloss laid upon the Constitutionby judicial decisions. Naturally, the text is studded with nearly3,000 cases.

Deviating from the usual pedantic article-wise layout, theauthor has given a thorough and exhaustive study of the main

222 COCHIN UNIVERSITY LAW REVIEW 1917

features of the Constitution in a historical and comparative per-spective. This arrangement adds lucidity and continuity, as itgives the reader the broad, basic framework of the Constitution.The style is elegant befitting the reputation of the author. Thepublication in the bicentennial year of the first written Constitu-tion of the world, to which our Constitution is indebted much,is appropriate. Our Constitution may be still young vis-a-vis theUS Constitution but it is elevated to an established position ashalf the countries of the world live under constitutions writtensince 1970. And all but six nations in the world adhere at leastin name to formal constitutions.

Since the infamous habeas corpus decision in 1976. the In-dian Supreme Court has travelled a lot, beginning with the land-mark Maneka Gandhi decision in 1978, exploring new vistas ofjudicial action. The contours of the Constitution were expand-ing through ever-expanding interpretation of 'state' under Arti-cle 12 and the rights in Part III. The metamorphosis of the con-cept of locus standi through social action litigation has widenedthe scope of constitutional rights and guarantees. These develop-ments have necessitated the updating of the 1978 edition; Dr.Jain has done it with candour.

Dr. Jain's popular compendium is a reliable guide to a pro-per understanding of our Constitution. It may not be as sump-tuous as Seervai's classic work; but, then, it belongs to a differ-ent genre.

— Sebastian Paul. *

Lawyer, High Court, Ernakularn.