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kewal sethi
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judicial reform by introducing new system

kewal krishan sethi

we have been so used to the british system of justice that we have never been able to consider any alternative system at all. but other systems do exist and are successful in the countries where they are applied. what is more is that these countries are not considered to be barbarian. the other system is called 'inquisitorial whereas british system is called 'adversial. let us try to understand what is the difference between the two systems. (some people prefer the name non-adversial instead of inquisitorial).

first let us recall briefly what the adversial system stands for. the term ‘adversarial’ is usually taken to mean the system in which the two sides (plaintiff and defendant; or prosecutor and accused) present their case by turns. they produce their witnesses who testify in favour of one of the party producing them. in the system the judge acts as an umpire who leaves the presentation of the case to the parties (prosecution and defence). They separately prepare their case and call and examine their witnesses. the other party is given the right of cross-examination. in the adversarial system, judges focus on the issue of the law and procedure and act as a referee in the contest between the defence and the prosecutor. therefore, the defence can appeal, technically speaking, only on procedural grounds, such as failure of prosecutor to disclose evidence or a fault in the evidence presented at the trial. on the other hand, a prosecutor in the adversarial system can also appeal against a "not guilty" verdict pointing out that the particular judge was not able to appreciate the evidence and another judge should look at it. basically the role of the second judge remains the same viz. study the evidence presented and come to a conclusion. he has the added disadvantage of not being in possession of the body language of the witnesses which could be observed by the first judge. neither the first nor the second judge can investigate the facts of the case. he is bound by what is presented.

it is to be noted that the case proceeds only when the accused declares himself to be 'non guilty'. if he pleads to be guilty, no further evidence is required and the judge can proceed to declare the sentence.

on the other hand, an inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case,. The function is often vested in the office of the public procurator, as in russia, china, japan, germany and scotland.

In the inquisitorial system, the judge conducts public inquisition/ investigation of crime. judges can question witnesses, interrogate suspects, order searches for other or further investigations, and finally declare the verdict and decide on the penalty. their role is not to prosecute the accused, but to gather facts to reach the correct verdict, and as such their duty is to look for any and all evidence, incriminating or exculpatory. when declaring verdict, the judge must also release the reasoning explaining the verdict. any perceived fault in the judge's reasoning (due to logic, science or newly discovered evidence) is a ground for appeal by both prosecutor and defence. there are no pleas in inquisitorial systems, so that even if the accused declare themselves to be guilty of crime, the judge may declare the accused not guilty if the judge believes there is evidence to indicate that the accused is innocent.

the english royal commission on criminal justice captures the significant distinction between the two systems in the following terms - “the term ‘inquisitorial’ describes the systems where judges may supervise the pre-trial preparation of the evidence by the police and, more important, play a major part in the presentation of the evidence at trial. the judge in ‘inquisitorial’ systems typically calls and examines the defendant and the witnesses while the lawyers for the prosecution and the defence ask supplementary questions.”

historically speaking adversial system was used in europe. there could not be a trial unless a person was specifically charged with a crime. the accusation could be by his victim, the voluntary accusations of a sufficient number of witnesses, or by an inquest (an early form of grand jury) convened specifically for that purpose (as in the case of death under suspicious circumstances). decisions by ordeal and/ or combat was also sometimes resorted to. the penalties for making a false accusation were severe, as a result, victims and would-be witnesses were hesitant to actually make their accusations to the court, for fear of implicating themselves. in 1198, pope innocent III issued a series of decretals that reformed the system. under the new inquisitional procedure a magistrate no longer required a formal accusation to summon and try a defendant. instead, court could summon and interrogate witnesses on its own initiative, and if the (possibly secret) testimony of those witnesses accused a person of a crime, that person could then be summoned and tried. in 1215, the fourth council of the lateran affirmed the use of the inquisitional system. the council also forbade clergy from conducting trials by ordeal or combat. as a result, in parts of continental europe, the courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated. in france, the parlements — lay courts — employed inquisitorial proceedings. in england, however, king henry II had established separate secular courts during the 1160s. while other courts of england, like those on the continent, adopted the inquisitional system, while the secular courts operated under the adversarial system. the adversarial principle that a person could not be tried until formally accused continued to be applied for most criminal cases. in 1215 this principle became enshrined as article 38 of the magna carta: "no bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes."

the first territory to wholly adapt the inquisitional system was the holy roman empire. the new german legal process was introduced as part of the wormser reformation of 1498 and then charles V in 1532 made inquisitional procedures empirical law. it was not until napoleon introduced the code d´ instruction criminelle, of the french code of criminal procedure, on november 16, 1808 that the classical procedures of inquisition were ended in all german territories. In the development of modern legal institutions which occurred in the 19th century, for the most part jurisdictions did not only codify their private law and criminal law, but the rules of civil procedure were reviewed and codified as well. it was through this movement that the role of an inquisitorial system became enshrined in most european civilian legal systems.

the following table reflects the most salient characteristics that have been traditionally associated with these systems as discussed above, although no one system will manifest all these attributes in an unqualified manner.

indicia of adversarial systems indicia of inquisitorial systems

court decisions are the important source of law legislation is usually the important source of law

stare decisis for continuity no stare decisis reference to code articles

elaborate decisions, to be followed brief decisions, not creating precedent, although superior court decisions are often followed in practice

such control as is exercised by courts over investigations is retrospective via rules of evidence contemporaneous judicial control of investigation in accordance with code of criminal procedure

judicial passivity judicial activity

parties are responsible for obtaining and introducing evidence court has power to obtain evidence

accused pleads guilty /not guilty accused not required to plead

decision based entirely upon material introduced by parties decision can be based upon any material lawfully available to the court

oral evidence, with cross-examination the primary test of testimonial reliability generally written evidence is given priority over oral evidence

no inference of guilt from accused’s silence inference of guilt from accused’s silence may legitimately be made

little disclosure of defence case before trial full disclosure of prosecution and defence cases prior to trial

trial as the site of contest trial as verification of dossier

institutional trust reposed in dialectic of parties and finder of fact. institutional trust reposed in state officials


cross and tapper state that “perhaps the most important feature of an english trial, civil or criminal, is its ‘orality’. much greater weight is attached to the answers given by witnesses in court on oath or affirmation than to the written statements previously made by them.” the preference for oral evidence as opposed to written statements can be ascribed to the fact that in the adversarial system the verbal confrontation between the witness and the cross-examiner is seen as the most effective way to test the version of the witness. model cross-examination in the adversarial system is regarded as “an attempt to ‘corner’ a witness into an attitude which the cross-examining party has himself decided upon beforehand, and as a method whereby the most honest witness can be driven or twisted into contradicting himself”.

since in the inquisitorial system most of the questioning of witnesses is conducted by the judge, the distinction between examination-in-chief and cross-examination is unknown. the inquisitorial presiding officer plays a more active role, both during and sometimes even before the trial. he introduces and elicits the evidence by questioning the witnesses and the accused, and only then allows the prosecutor and defence to put questions to the witnesses. he is not bound by the evidence introduced at the trial. this has often given rise to the view that the inquisitorial judge searches for the material truth, whereas the accusatorial judge searches only for the formal truth since he relies upon the information that has been placed before him. an advantage of the active judge in the inquisitorial model is that, since he has to decide the case, he knows best what information he requires and what questions he needs to put to the witnesses and the accused. by being able to conduct the interrogations himself, he obtains the necessary evidence rather than having to wait for the evidence to be presented to him by the parties. the accusatorial (or adversial) system, on the other hand, is criticised as not being a search for the material truth, since the judge is limited to the evidence placed before him by the parties in making his decision and he has very little discretion to move beyond this.

the chief defect of the adversial system is that in adversarial systems the investigation is motivated by self-interest rather than public interest. unlike the inquisitorial systems, there is no investigative judge to seek out the “truth” and it has been observed that “despite official rhetoric about impartiality in prosecution, the concrete legal duties of police and prosecution lawyers do not extend to seeking out exculpatory evidence.” the measure of success of the police officer or the prosecutor is determined by how many verdicts could be obtained in his(sic) favour.

the traditional approach of adversarial systems to allow the examination of the witnesses and experts to be placed in the hands of the parties’ counsel has been perceived to be incompatible with the traditional inquisitorial view that the chief function of a court of law is to find out the truth and not merely to decide which party has adduced better evidence. the adversarial system is characterised by an elaborate law of evidence which can be seen as a natural consequence of the system. over time strict rules with regard to the admissibility and exclusion of evidence have developed. in the inquisitorial system the rules of evidence are less technical and less restrictive. the emphasis in the inquisitorial model is not on the admissibility of evidence, but rather on the value that is to be attached to the evidence. In the case of hearsay evidence the focus is on how much weight will be attributed to that type of evidence and not on whether it is admissible or not. in general the procedure is characterised by free appreciation of proof.

in the adversial system, the fault in not getting a conviction is always that of the police or the prosecution. the judge has no responsibility. many persons are known to have gone free because of technical shortcomings even when there are clear indications of miscarriage of justice due to failure of police or prosecutor in carrying out investigations properly.

this divorce of responsibility of a significant part of judicial system is playing havoc with the crime situation which is worsening day by day. the emphasis is on finding a clever lawyer who can force the witnesses to make inadvertent remarks during cross examination, which will either discredit his testimony or his creditworthiness. it leads to harassment of witnesses who can be subjected to irreverent questions. since the judge is only a referee, he can intervene only occasionally to protect the witness from defamatory questions. taking the easy way out, most of the judges prefer not to do so letting the witness fend for himself. in the inquisitorial system most of the questioning of witnesses is conducted by the judge, the distinction between examination-in-chief and cross-examination is unknown.

since the lawyers are indispensable part of the proceedings in adversial cases, they are usually seen to go in for a long duration cross examination hoping to confuse the witness sufficiently to induce him to make a remark which is not consistent with other part of testimony. they also utilise their importance by repeatedly seeking adjournments leading to avoidable delay in arriving at a decision. in the inquisitorial system, the judge can proceed without waiting for the lawyers and they can abstain only on their own risk. in other words inquisitorial system can ensure expeditious judgments.

as a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial stage. conversely, the guilty plea and plea bargaining were until recently unknown to french law, and even now it only applies to crimes for which the maximum sentence is one year imprisonment. plea bargaining is quite common in united states.

one of the criteria for choosing a system is whether it is in line with the cultural norms of the milieu. in india, we have tradition of trial by panchas who are from amongst the local people and not professional judges. they collected evidence as well as heard the witnesses and delivered what is known as substantive justice instead of technical justice. at the higher level sabhasads, learned people, would hear the case. the dharma, rather than the written laws guided them. brihaspati enjoined: " The court should not give its decision by merely following the letter of the shastra for if the decision is completely devoid of reasoning, the result is injustice (dharma-hani)." brihastpati further says that the court should decide according to the customs and usages of the country even if they are in conflict with the letter of the law; this flexibility is completely unknown to the adversial system whereas in inquisitorial system, it does play some part. thus the latter is more in tune with our way of life.

are there any pitfalls in the new system? obviously no system is perfect. there is always room for improvement. further any system depends on the personnel who are expected to carry on the work. if the judge decides to take it easy, there will be delays. he is expected to work hard to reach the conclusion. in the adversial system he can leave it to the parties but in the inquisitorial system, he is in the forefront. dedication is required and also close supervision. the basic thing is how to uncover the truth. it stands better chances in inquisitorial system. that should be the conclusive factor.



September 11, 2014 at 2:35 AM Flag Quote & Reply

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