Review: Chaff and Grain by Vivek Sood

Vivek Sood is a practising lawyer in the courts at the national capital and puts out a disclaimer right at the outset, that his book Chaff and Grain is a conscious effort to make his book “readable by people from all walks of life and not restricted to the legal community alone”.

He then proceeds to acknowledge the redoubtable senior advocate Ram Jethmalani, whose contribution to India’s criminal law jurisprudence hardly needs elaboration. In seven chapters on subjects ranging from the abuse of criminal law and the abuse of the power to arrest and investigate to the age-old conundrum of jail versus bail and fake encounters, Sood has done a fair job of living up to his book’s primary objective, which is to demystify legal issues so they can engage the attention of non-lawyer readers.

Sood is spot-on when he says that the “Law of Cheating” has become “Cheating of the Law”. Our civil court remedies are largely toothless and time consuming and therefore, there is an increasing propensity among litigants to convert disputes, which are essentially civil in nature, into FIRs via the ubiquitous route of Section 420 (cheating) of the Indian Penal Code, 1860, which gives them a much better shot at recovering money.

The guidelines passed by the Supreme Court in the case of Arnesh Kumar vs the State of Bihar (2014) concerning the preconditions to be met by the police before arresting any accused rightly find a mention in this book. In our country, one need not be convicted to suffer because the legal process itself is a punishment. An accused would have had to face penal consequences, interminable delays, convoluted procedural postponements, lack of adequate judicial infrastructure and also, sadly, lack of competent professional assistance from lawyers during the journey of his criminal case in the trial courts, high courts and possibly even the Supreme Court. It’s not unusual to see this process, from the registration of the FIR till the final word on it by the Supreme Court, taking at least 15 to 20 years for these long-winded tortuous processes to conclude. One can only imagine the toll this process takes on the mental, physical, and financial health of an accused, even before his conviction, if any.

Sood also gives the reader a bird’s-eye view of some of the sensational criminal cases of the recent past like the Aarushi Talwar, Jessica Lal, Priyadarshini Mattoo, Telgi fake stamp paper scam, and the Nirbhaya rape cases.

The author coins the expression “Fenocide” to describe financial victimization of a large number of innocent citizens, who are cheated of their hard-earned money by unscrupulous financial scamsters. In recent years, the plight of millions of homebuyers, who have given their life-savings to deviant conmen masquerading as builders and real estate developers, is well known.

This book also highlights another topic that has engaged the attention of the nation in recent times ie free speech versus criminal prosecutions. Very often, irrespective of ideological persuasion, the government in power has ruthlessly employed criminal prosecutions to punish, penalize, and stultify the contrarian, dissident voice of political opponents and media personalities. In some cases, the statements brazenly constitute “hate speech” and in some others, it is the brazen victimization of the right of free speech, intended to administer a “chilling effect” on adversaries through constitutionally impermissible methods. So how does the Court balance these two seemingly conflicting positions? One man’s free speech may be seditious to the ears of another. How does the Supreme Court ensure Freedom “after” speech and not merely “freedom of speech” to its citizens? The Supreme Court has done a creditable job till date in balancing these two seemingly irreconcilable positions, but the law is still evolving and fluid, and the last word on this issue is yet to be said.

Sood argues that the testimony of almost every witness in criminal trials in India is tainted with some exaggeration, embellishment or falsity. If our criminal courts were to strictly apply the legal principle applicable in English courts – “Falsus in Uno, Falsus in Ominbus” which means “If a part of your testimony is false, then the witness stands discredited and his entire testimony has to be rejected”, then hardly any crime will go punished as Indian witnesses are invariably influenced, in varying degrees by social pressures, inducements, threats (and I would also add, a lack of adequate understanding of the sanctity of court testimony and the inability of our overworked and overburdened courts to punish and deter witnesses who commit perjury). This is separating the “chaff from grain” as per the author.

This book immeasurably benefits from the decades of actual law practice put in by Vivek Sood. The book’s content doesn’t lean heavily on academia, rather it focuses on the practical aspects that afflict our criminal legal system. Those who have spent years in the legal profession may not necessarily find anything new in it but for those who are commencing their journey in the legal field, either as law students or as young law graduates, as well as those who are not related to the legal field but have a keen interest in the functioning and dynamics of the criminal justice delivery system, this book is a worthwhile read.

Sunil Fernandes is an Advocate-on-Record, practising in the Supreme Court.

Vivek Sood is a practising lawyer in the courts at the national capital and puts out a disclaimer right at the outset, that his book Chaff and Grain is a conscious effort to make his book “readable by people from all walks of life and not restricted to the legal community alone”.

He then proceeds to acknowledge the redoubtable senior advocate Ram Jethmalani, whose contribution to India’s criminal law jurisprudence hardly needs elaboration. In seven chapters on subjects ranging from the abuse of criminal law and the abuse of the power to arrest and investigate to the age-old conundrum of jail versus bail and fake encounters, Sood has done a fair job of living up to his book’s primary objective, which is to demystify legal issues so they can engage the attention of non-lawyer readers.

Sood is spot-on when he says that the “Law of Cheating” has become “Cheating of the Law”. Our civil court remedies are largely toothless and time consuming and therefore, there is an increasing propensity among litigants to convert disputes, which are essentially civil in nature, into FIRs via the ubiquitous route of Section 420 (cheating) of the Indian Penal Code, 1860, which gives them a much better shot at recovering money.

The guidelines passed by the Supreme Court in the case of Arnesh Kumar vs the State of Bihar (2014) concerning the preconditions to be met by the police before arresting any accused rightly find a mention in this book. In our country, one need not be convicted to suffer because the legal process itself is a punishment. An accused would have had to face penal consequences, interminable delays, convoluted procedural postponements, lack of adequate judicial infrastructure and also, sadly, lack of competent professional assistance from lawyers during the journey of his criminal case in the trial courts, high courts and possibly even the Supreme Court. It’s not unusual to see this process, from the registration of the FIR till the final word on it by the Supreme Court, taking at least 15 to 20 years for these long-winded tortuous processes to conclude. One can only imagine the toll this process takes on the mental, physical, and financial health of an accused, even before his conviction, if any.

Sood also gives the reader a bird’s-eye view of some of the sensational criminal cases of the recent past like the Aarushi Talwar, Jessica Lal, Priyadarshini Mattoo, Telgi fake stamp paper scam, and the Nirbhaya rape cases.

The author coins the expression “Fenocide” to describe financial victimization of a large number of innocent citizens, who are cheated of their hard-earned money by unscrupulous financial scamsters. In recent years, the plight of millions of homebuyers, who have given their life-savings to deviant conmen masquerading as builders and real estate developers, is well known.

This book also highlights another topic that has engaged the attention of the nation in recent times ie free speech versus criminal prosecutions. Very often, irrespective of ideological persuasion, the government in power has ruthlessly employed criminal prosecutions to punish, penalize, and stultify the contrarian, dissident voice of political opponents and media personalities. In some cases, the statements brazenly constitute “hate speech” and in some others, it is the brazen victimization of the right of free speech, intended to administer a “chilling effect” on adversaries through constitutionally impermissible methods. So how does the Court balance these two seemingly conflicting positions? One man’s free speech may be seditious to the ears of another. How does the Supreme Court ensure Freedom “after” speech and not merely “freedom of speech” to its citizens? The Supreme Court has done a creditable job till date in balancing these two seemingly irreconcilable positions, but the law is still evolving and fluid, and the last word on this issue is yet to be said.

Sood argues that the testimony of almost every witness in criminal trials in India is tainted with some exaggeration, embellishment or falsity. If our criminal courts were to strictly apply the legal principle applicable in English courts – “Falsus in Uno, Falsus in Ominbus” which means “If a part of your testimony is false, then the witness stands discredited and his entire testimony has to be rejected”, then hardly any crime will go punished as Indian witnesses are invariably influenced, in varying degrees by social pressures, inducements, threats (and I would also add, a lack of adequate understanding of the sanctity of court testimony and the inability of our overworked and overburdened courts to punish and deter witnesses who commit perjury). This is separating the “chaff from grain” as per the author.

This book immeasurably benefits from the decades of actual law practice put in by Vivek Sood. The book’s content doesn’t lean heavily on academia, rather it focuses on the practical aspects that afflict our criminal legal system. Those who have spent years in the legal profession may not necessarily find anything new in it but for those who are commencing their journey in the legal field, either as law students or as young law graduates, as well as those who are not related to the legal field but have a keen interest in the functioning and dynamics of the criminal justice delivery system, this book is a worthwhile read.

Sunil Fernandes is an Advocate-on-Record, practising in the Supreme Court.