We have been so accustomed to the British system of justice that we have never been able to consider an alternative system at all. But other systems do exist, and they have been successful in the countries where they are applied. What is more, these countries are certainly not considered barbaric.
The other system is called the inquisitorial system, whereas the British system is called adversarial. Let us try to understand the difference between the two systems. Some people prefer the term non-adversarial instead of inquisitorial.
First, let us briefly recall what the adversarial system stands for. The term "adversarial" is usually taken to mean a system in which the two sides - plaintiff and defendant, or prosecutor and accused - present their cases by turns. They produce witnesses who testify in favour of the party calling them. The judge acts as an umpire, leaving the presentation of the case to the parties, namely the prosecution and the defence.
The parties separately prepare their cases and call and examine their witnesses. The other party is given the right of cross-examination. In the adversarial system, judges focus on questions of law and procedure and act as referees in the contest between the defence and the prosecutor.
Therefore, the defence can appeal, technically speaking, only on procedural grounds, such as a failure by the prosecutor to disclose evidence or a fault in the evidence presented at 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 that another judge should look at it.
Basically, the role of the second judge remains the same: to study the evidence presented and come to a conclusion. The second judge has the added disadvantage of not being in possession of the body language of the witnesses, which could have been observed by the first judge. Neither the first nor the second judge can investigate the facts of the case. The judge is bound by what is presented.
It is to be noted that the case proceeds only when the accused declares himself or herself "not guilty". If the accused pleads guilty, no further evidence is required and the judge can proceed to pronounce the sentence.
On the other hand, an inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This 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 a public inquiry or investigation into the crime. Judges can question witnesses, interrogate suspects, order searches or further investigations, and finally declare the verdict and decide the penalty.
Their role is not to prosecute the accused, but to gather facts to reach the correct verdict. As such, their duty is to look for all evidence, whether incriminating or exculpatory. When declaring the verdict, the judge must also provide the reasoning behind it. Any perceived fault in the judge's reasoning - due to logic, science or newly discovered evidence - can be a ground for appeal by either the prosecutor or the defence.
There are no pleas in the inquisitorial system. Thus, even if an accused declares himself or herself guilty of a crime, the judge may declare the accused not guilty if the judge believes there is evidence indicating innocence.
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, the adversarial system was used in Europe. There could not be a trial unless a person was specifically charged with a crime. The accusation could be made by the victim, by 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 cases of death under suspicious circumstances.
Decisions by ordeal and/or combat were also sometimes resorted to. The penalties for making a false accusation were severe. As a result, victims and would-be witnesses were hesitant to make accusations before 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, the court could summon and interrogate witnesses on its own initiative. If the testimony of those witnesses, possibly given in secret, 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, 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, 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 purpose."
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 Charles V in 1532 made inquisitional procedures empirical law.
It was not until Napoleon introduced the Code d'Instruction Criminelle, 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 during the 19th century, jurisdictions for the most part not only codified their private and criminal laws, but also reviewed and codified the rules of civil procedure. It was through this movement that the role of an inquisitorial system became enshrined in most European civil-law systems.
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, verbal confrontation between the witness and the cross-examiner is seen as the most effective way to test the witness's version.
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. The judge introduces and elicits evidence by questioning the witnesses and the accused, and only then allows the prosecutor and defence to put questions to the witnesses.
The judge 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 the latter relies upon the information placed before the court.
An advantage of the active judge in the inquisitorial model is that, since the judge has to decide the case, he or she knows best what information is required and what questions need to be put to the witnesses and the accused.
By being able to conduct the interrogations personally, the judge obtains the necessary evidence rather than having to wait for it to be presented by the parties. The accusatorial, or adversarial, system, on the other hand, is criticised as not being a search for material truth, since the judge is limited to the evidence placed before the court by the parties and has very little discretion to move beyond it.
The chief defect of the adversarial system is that investigation is motivated by self-interest rather than public interest. Unlike inquisitorial systems, there is no investigative judge to seek out the "truth".
It has been observed that, despite official rhetoric about impartiality in prosecution, the concrete legal duties of police and prosecution lawyers do not necessarily extend to seeking out exculpatory evidence. The measure of success of a police officer or prosecutor is often determined by how many favourable verdicts can be obtained.
The traditional approach of adversarial systems, which places the examination of witnesses and experts in the hands of the parties' counsel, has been perceived as 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 regarding 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 to be attached to it. In the case of hearsay evidence, the focus is on how much weight should be attributed to that type of evidence rather than simply on whether it is admissible. In general, the procedure is characterised by free appreciation of proof.
In the adversarial system, the fault for failing to obtain a conviction is always that of the police or prosecution. The judge has no such responsibility. Many persons are known to have gone free because of technical shortcomings, even when there are clear indications of a miscarriage of justice resulting from failures by the police or prosecution to carry out investigations properly.
This divorce of responsibility within a significant part of the judicial system is playing havoc with the crime situation, which is worsening day by day.
The emphasis is often on finding a clever lawyer who can force witnesses into making inadvertent remarks during cross-examination that may either discredit their testimony or undermine their credibility. This can lead to the harassment of witnesses, who may be subjected to irrelevant or offensive questions.
Since the judge is only a referee, he or she can intervene only occasionally to protect a witness from improper questions. Taking the easier course, most judges may prefer not to do so, leaving the witness to fend for himself or herself.
In the inquisitorial system, most of the questioning of witnesses is conducted by the judge, and the distinction between examination-in-chief and cross-examination is unknown.
Since lawyers are an indispensable part of proceedings in adversarial cases, they are usually seen to engage in lengthy cross-examinations, hoping to confuse the witness sufficiently to induce a remark that is inconsistent with another part of the testimony.
Lawyers may also utilise their importance by repeatedly seeking adjournments, leading to avoidable delays in arriving at a decision. In the inquisitorial system, the judge can proceed without waiting for the lawyers, and they can abstain only at their own risk. In other words, an inquisitorial system can ensure more expeditious judgments.
As a result of judicial investigation, and because defendants may 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, guilty pleas and plea bargaining were, until recently, largely unknown to French law, and even now plea bargaining applies only to crimes for which the maximum sentence is one year of imprisonment. Plea bargaining is quite common in the 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 a tradition of trial by panchas, who are drawn from among the local people rather than being professional judges. They collected evidence, heard witnesses and delivered what is known as substantive justice instead of technical justice.
At the higher level, sabhasads, or learned people, would hear the case. Dharma, rather than 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)."
Brihaspati 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 adversarial system, whereas in the inquisitorial system it does play some part.
Thus, the latter may be 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 upon the personnel who are expected to carry on the work. If a judge decides to take it easy, there will be delays. The judge is expected to work hard to reach a conclusion. In the adversarial system, the judge can leave much of the responsibility to the parties, but in the inquisitorial system, the judge is in the forefront.
Dedication is therefore required, as is close supervision.
The basic question is how to uncover the truth. An inquisitorial system, in the author's view, stands a better chance of doing so.
That should be the conclusive factor.
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Kewal Krishan Sethi, a 1963 batch IAS officer, was borne on the Madhya Pradesh cadre. He has had an illustrious career. He was Chairman Board of Revenue Madhya Pradesh, Chief Secretary Manipur, and head of the National Commission for Linguistic Minorities (NCLM).