INQUISITORIAL VS.ADVERSARIAL SYSTEMS
Most modern states are constituted on democratic principles. To ensure that democracy becomes a reality and liberties of individuals are preserved, they try to ensure that the principle of separation of powers between the legislature, executive and the judiciary is not violated. The constitution of India has also enjoined the state to ensure that the judiciary be separated from the executive, in its directive principles.
The constitution of India places emphasis on the assurance of the dignity of the individual. There are pre-declared laws which can be known by every citizen by personal study or through the agency of a lawyer, he can enter into contracts and quasi contracts as per those pre- declared laws, which crystallise into rights which can be enforced through the law courts whenever there is a violation. The citizen can avoid flouting pre- declared laws defining crimes precisely and avoid the pre- announced penalties. A citizen can violate the laws and boldly suffer the penalties as a protest, to bring about reforms, as done by Gandhiji during the freedom movement.
It is important to note that a citizen approaches the courts to enforce his pre- existing rights and not seek indulgence from the judges. Unfortunately many judges and lawyers are not clear in their minds about the exact role to be played by judges in modern judicial systems. Many judges are in an honest but mistaken impression that judges have to endeavour to find out the truth by dominating participation in the trial of cases. If a judge is told that he is only a referee in a match his ego is hurt. A detailed analysis will reveal that in the adversary system the judge is only an umpire and not an investigator and the adversarial system is superior to the inquisitorial system.
1. An inquisitorial judge is like a policeman with the task of catching a thief. Because of the compulsions to perform by catching the thief at any cost, the police may catch hold of some innocent passes-by, on the slightest suspicion and brand him a thief, if only to get relief from the pressure to get results and please his superiors. That is why the confessions before the police are not admissible in evidence and not because the police are inherently bad and judges are inherently good. That is why when a judge is appointed to head a commission of inquiry he becomes an investigator. He can at the end only submit a report of his enquiry and not pronounce judgement, though he may be a judge of the Supreme Court. Basing on the report prosecution is launched before the magistrate or a sessions judge, who should adopt the adversarial approach and ultimately pronounce judgment. If the magistrate acts like an investigator by adopting inquisitorial approach, the purpose of trial is defeated, as there would be two investigations, one by the Supreme Court judge and another by the magistrate and not impartial trial.
2. Judges with inquisitorial tendencies [unfortunately most judges are of this type] have a strong tendency to reach a conclusion at an early stage and to adhere to the conclusion in the face of conflicting considerations later evolved. In the language of the committee of the American Bar Association, "what generally occurs in practice is that at some early stage a familiar pattern will seem to emerge from the evidence; an accustomed label is waiting for the case and without awaiting further proofs this label is promptly assigned to it. It is a mistake to suppose that this premature cataloguing must necessarily result from impatience, prejudice or mental sloth. Often it proceeds from a very understandable desire to bring the hearing in to some order and coherence, for without some tentative theory of the case there is no standard of relevance by which testimony maybe measured. But what starts as a preliminary diagnosis designed to direct the inquiry will quickly and imperceptibly, become a fixed conclusion, as all that confirms the diagnosis makes a strong imprint on the mind, while all that runs counter to it is received with diverted attention. An adversarial presentation seems the only effective means for combating this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known.” [Extracted from LAW -Voice of America lectures p. 102.]
3. Inquisitorial judges are in general blissfully ignorant of the fact that truth is relative to the Observer. They behave like bureaucrats in disguise. They mistrust the calibre or honesty of advocates and unnecessarily study the entire Records of the preceding, from the pleadings to evidence and all the documents themselves. All this adds to the delay in disposal of cases. A strictly adversarial judge should not read the record before hearing the arguments. Even after the arguments are advanced, he should look into the records only to verify the disputed facts and not the whole record, and quickly pronounce judgement. Suppose a suit based on a promissory note is being argued. The plaintiff’s advocate argues that his witnesses have consistently spoken about the due execution of the promissory note. The defendant's advocate does not contradict this or bring out the inconsistencies or deficiencies of the plaintiff ' s witnesses. The judge need not and I daresay, should not read the entire evidence led, by the plaintiff. He can straight a way pronounce judgement and write in his judgement that since the defendant's counsel did not bring out the inconsistencies in the plaintiff's evidence he has concluded that the execution of the promissory note is proved. That is the reason why Order 20 Rule 1 of the Code of Civil Procedure enjoins that judgement shall be pronounced at once, after the arguments are concluded. If he commits a grave mistake there is the mechanism of review provided under or. 47 and section 151 CPC
4. A judge with inquisitorial mind develops fatigue very quickly due to over work. This will have adverse effect upon his appreciation of the finer points of law and fact put forth by the contestants. He should remember that it is the duty of the advocates appearing in the matter to go through the entire record, digest it and project their respective versions. Advocates have to deal only with their respective briefs where as a judge has to deal with the workload of the entire court. Just as a driver of a vehicle should guard himself from being fatigued to avoid errors of judgement resulting in serious accidents, judges also must keep their minds reasonably fresh to avoid misjudgements and miscarriage of justice. If a particular advocate is inefficient, the judge should not try to go to the rescue of the party by stepping into the shoes of the deficient advocate. This will encourage or compel litigants to engage only competent advocates.
5. Inquisitorial attitude of judges, when they preside over adversarial courts, is not compatible with democratic ideals and dignity of the individual. An inquisitorial Judge is apt to think "it is my responsibility to know the truth – I will know it by my own effort and initiative. I will dole out justice to you the litigant - you meekly take whatever I give “, whereas an adversarial judge would be less egoistic. His approach would be "I am only a referee in a match. The laws are already made by the legislature. You the citizens have entered into deals as permitted by those laws. You have approached me to enforce your rights. You are the first judges in the sense that you first decide that you have been wronged and approach your lawyers to work out the details of your case. Your lawyers are the boxers and I am only an umpire ". Rule of law is described as a “leave to live without anyone’s leave”, which includes the leave of the judges too. This is the only way to empower the citizen instead of treating him as a humble recipient of benevolence by the authorities, whether of the executive variety or the judicial clan. . In any game, players can improve their standard if they are free to concentrate on the game instead of being at the mercy of the referee
6. An inquisitorial judge is a glorified policeman. A policeman takes the trouble of visiting the scene of occurrence and catches the suspected criminal at considerable personal risk to find out the truth, whereas and inquisitorial Judge attempts to play the policeman when comfortably seated in his court.
7. Inquisitorial judges take the litigating parties by surprise by coming forward with their own hypothesis, which is not put forth by either of the parties. By their propensity to take initiative, they encroach upon the jurisdiction of the executive and thus violate the principle of separation of powers. On the other hand, adversarial judges fairly reopen the arguments whenever a new point of law or fact occurs in their minds, give opportunities to both the counsel to argue on those points and then only give a decision. They never shock the parties by surprising them. They never hit their ships with torpedoes of their equities or notions of `dharma`
8. When Bill Clinton was asked to address the Russians and suggest tips to develop their economy, he is reported to have said that apart from natural resources and technical manpower, a country needs a legal system that enforcers the laws consistently, so that entrepreneurs are sure that the contracts they enter into can be enforced with certainty. Lawyers as social engineers, play a vital role in such a system only when the courts are consistent and predictable. According to Justice Oliver Wendell Holmes "law is a prediction of what the courts will decide". Just as an electrical engineer designs his circuits based on the predictable behaviour of electrical power and thereby ensures that the devices and equipment designed by him give the expected result to the society, a lawyer, as a social engineer, designs his plaints, complaints, petitions, written statements etc based on law which is the predictable exercise of judicial power. According to Mr.Justice Rajendra Babu of the Supreme Court, impartial, timely and predictable judiciaries stimulate investment, efficiency and technological progress [See THE HINDU DT.11-4-04 PAGE 17] Only an adversarial system can ensure such predictability and consistency. Otherwise, Mr. Palkhivala's lament that our courts of law are “casinos and not cathedrals" rings true.
9. Even "judicial activism" is possible within the adversarial framework. All the sensational judgements rendered by the Supreme Court during the recent phase of judicial activism were made possible because of the innovative and ingenious stands taken by their respective disputants within the constitutional framework. The judges merely put their stamp of approval by mustering enough courage, while the credit for such innovation must go to the advocates whose arguments were accepted.
THE DESIGN OF THE INDIAN JUDICIARY
The Indian judicial system is designed on the adversarial pattern. The following provisions show that the system is not inquisitorial:
a) Section 101 and 102 of the Evidence Act clearly place the onus of proof on the parties who make their respective allegations. If judges were to act like investigators the Act would have placed the burden of discovery of truth on the judge.
In the Commissions of Inquiry Act there is no such provision because it is for the judge to find out the truth by his active involvement. He cannot stay aloof as an umpire. But at the same at the end he cannot pronounce judgment but only submit a report.
b) Section 138 of the evidence Act does not prescribe that the judge should put questions to witnesses.
c] Section 165 of the evidence Act no doubt empowers the judge to put questions. But various authoritative pronouncements say that the judge must not put questions in an inquisitorial manner [1969 MLJ -CRL page 499) Judge must not descend into the arena (AIR 1954 Calcutta's 305)
D] Section 151 c pc though gives wide discretion, "it cannot affect party’s substantial rights. A judicial innovation is not an unbridled horse to be allowed to roam about freely in any direction it likes at its pleasure" (AIR 1988 NOC 50 MP High court)
E] As per the CPC where the party is a minor or insane, the court appoints a guardian as litem or a court guardian. The court will not conduct the case on behalf of the disabled person.
The damage and the confusion
By introduction of family courts, consumer courts and local adalaths, judges are given the right to dominate the proceedings, thereby undermining the dignity of the individual. Some judicial pronouncements under the rent control Act (AIR 1978 Supreme Court 22) which say that even if the respondent remains exparte in an eviction proceeding, the rent controller must again satisfy himself of the grounds of eviction have virtually made the judge into a bureaucrat in the garb of adjudge. Judges continue to fix upset prices in court sales, though CPC never prescribed such a procedure (1972- 2 ALT 52) and add to the woes of the decree-holder . While registering suits, judges take all sorts of objections, which would be appropriate for the defendants to take after the suits are numbered. Let us hope the policy makers realize the harm they are doing to the society by such ill-conceived reforms and procedures.
About the Author
G.V.DESAI, the author, is practising at Adoni in Andhra Pradesh, India. His articles were already published in journals in India