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ADVERSARIAL AND INQUISITORIAL SYSTEM OF ADJUDICATION

INTRODUCTION

Whenever a matter is referred to the court, the process of adjudication takes place. However, the different methods of adjudication adopted wholly depends on the legal system prevailing in that country. There are two essential types of mechanisms that help in adjudicating the matters:

  • Adversarial Legal system

It is derived from the word Adversary, which can be described as ‘one’s opponent in a contest, conflict, or dispute’[1]. It got its genesis in England around the 13th century, and it was developed by Catholic Christians. Thus, a sense of rivalry is brought by the lawyers of both sides in a particular case. The Prosecution and Defence confront each other leading to the revelation of truth. In matters of criminal offences, matters initiated by the prosecution is represented by the state, and the defendant is represented by a defence attorney whereby they plead for innocence. In this system, Previous decisions made by higher Courts form a precedent that will bind the lower Courts[2]. Thus, to win the cases in their favour, lawyers seek and present the best pieces of evidence supporting their client before the court. The role of Judges in this system is very limited and restrained, whereby they are compelled to a great extent to decide the case based on the evidence and facts put forth by both parties. Hence, the judge decides the case as an observer and decides the case as per the conformity and efficacy of arguments presented.[3]

There are several demerits of the adversarial system which can affect the cases to a large extent. The parties in a case may go for lingering the matters in order to collect shreds of evidence which can further take up a lot of time in adjudicating the matters[4]. There may be a scope of bringing fake witnesses before the court so as to convince the judge. It also provides an opportunity for lawyers to make a lot of money owing to their personal interest with their clients, thereby making a big hole in the pockets of clients. Lawyers with utmost zeal may go to the extent of pressing the facts in such a way that an acrimonious environment is built around the matter. Also, the rights of the accused matter to a great extent and the court allows the accused to avail the same. It is crucial to note that the adversarial system is prevalent in almost all of the common law countries. Such countries may have a materialistic approach and pave the way for capitalism.

  • Inquisitorial Legal System

As the name itself suggest, it is developed with a sense of curiosity whereby seeking the truth is of paramount significance. Judges in an inquisitorial legal system tend to be free to make decisions on a case-by-case basis. Thus, the role of the judges in this system is very active, and they go to the extent of extraction of truth on their own. It is the duty of the court to ensure that no material fact is concealed and every bit of evidence is considered while adjudicating the matters. The active participation of judges in this system helps in expediting the matter to provide adequate relief to the aggrieved party in a just manner. However, it is crucial to note that the rights and privacy of the accused person are overlooked to collect evidence and help in adjudicating the matter, unlike the adversarial system. It is being followed by civil law counties such as Italy, France, Germany, New Zealand, Australia etc.[5] However, the participation of the court can come up as that of biased opinion with the virtue of getting immersed with the inclusion of subjectivity. Also, it restricts the expert opinions in matters which can largely reveal the truth of the case.

The Legal System Prevalent in India

India has a long and tumultuous history of colonialism[6]. However, based on the thesis and antithesis of both systems, India established a hybrid system of legislation in this situation. This follows in the footsteps of India’s ‘Quasi-federal’ structure, as stated by KC Wheare[7]. Thus, India largely relies on the adversarial system of adjudication, but it also has some concepts whereby the Inquisitorial system is followed. For instance, plea bargaining, which is incorporated in the Criminal Procedure Code, goes against the real ethos of the adversarial system[8]. With the sense of rigidity and strictness existing in the adversarial system, some matters can’t come to a compromise. But with the help of plea bargaining, matters can be settled by pressing for forgiveness and having a possibility of acquittal for the defendant.

An Ideal Legal System

In future, a mix of features existing in both the system would be prevalent as both have their pros and cons, which can serve as a loophole for the lawyers to convince the judges and win cases in their own favour. Some principles of the Adversarial system may be used so as to spill out the truth with logical and scientific reasoning. In other instances whereby the minimalization of risk and flexibility is required to offset the demerits of other systems, adopting the inquisitorial system may be helpful.

Conclusion

It is a big concern if a case is decided in favour of one party or the other. Therefore, a reasonable procedure is developed step by step to achieve a specified purpose: to pursue the defendant, help the survivor, and ensure a fair jury[9]. The court must strive for the revelation of truth and mitigate the risks of being inaccurate in adjudicating the matters due to which an innocent may suffer. These methods all have their processes, advantages, and disadvantages. The Adversarial and Inquisitorial systems are both called into question. Hence, upon the discretion of the court, the principles based on the adversarial and inquisitorial legal system may be applied on a case-to-case basis whereby the most suitable mechanism is chosen, and the justice is served rightfully without leaving any scope for ambiguity and despotism.

Author(s) Name: Chaitanya Vohra (Chanakya National Law University, Patna)

References:

[1] Andrew Perkins, ‘Differences between Adversarial and Inquisitorial Legal System’ (Ashfords, 1 Oct 2015) https://www.ashfords.co.uk/news-and-media/general/differences-between-an-adversarial-and-an-inquisitorial-legal-system accessed 23 January 2022

[2] Andrew Perkins, ‘Differences between Adversarial and Inquisitorial Legal System’ (Ashfords, 1 Oct 2015) https://www.ashfords.co.uk/news-and-media/general/differences-between-an-adversarial-and-an-inquisitorial-legal-system accessed 23 January 2022

[3] ‘Adversarial System’ (State Library) https://legalanswers.sl.nsw.gov.au/hot-topics-courts-and-tribunals/adversarial-system accessed 24 January 2022

[4] Natalie Regoli, ’11 Advantages and Disadvantages of Adversarial System’ (ConnectUS,27 July 2016) https://connectusfund.org/11-advantages-and-disadvantages-of-adversarial-system accessed 24 January 2022

[5] ‘Inquisitorial Procedure’ (Britannica) https://www.britannica.com/topic/inquisitorial-procedure accessed 25 January 2022

[6] Ashish Bhan & Mohit Rohatgi, ‘Legal systems in India’ (Thomson Reuters) https://uk.practicallaw.thomsonreuters.com/w-017-5278?transitionType=Default&contextData=(sc.Default)&firstPage=true#:~:text=The%20Indian%20legal%20system%20is,judge%20to%20perform%20inquisitorial%20functions. Accessed 25 January 2022

[7] Ashish Bhan & Mohit Rohatgi, ‘Legal systems in India’ (Thomson Reuters) https://uk.practicallaw.thomsonreuters.com/w-017-5278?transitionType=Default&contextData=(sc.Default)&firstPage=true#:~:text=The%20Indian%20legal%20system%20is,judge%20to%20perform%20inquisitorial%20functions. Accessed 25 January 2022

[8] Sunil Ambwani, ‘Plea Bargaining in India’ (LiveLaw) https://www.livelaw.in/columns/criminal-law-plea-bargaining-charge-bargaining-sentence-bargaining-tablighi-jamaat-169521 accessed 26 January 2022

[9] Nishka Prajapati, ‘Inquisitorial System of Trial in India, England and France’ (Legal Service India) https://www.legalserviceindia.com/legal/article-5114-inquisitorial-and-accusatory-system-of-trial-in-india-england-and-france.html accessed 26 January 2022

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