Constitutional law changes according to the philosophical current in the minds of the

judges

I would agree/disagree with the points ABC put forward

Justice, we are aware of, should be imparted in accordance with the law. However it
must be noted that it is not a mere robotic or mechanical process.

Precedents without any doubt play a major role in decision making, but the judge applies his
judicial mind to act in fair and just manner after absorbing the current circumstances of the
case.

Different backgrounds, and experiences, all play a major role in understanding and predicting
the decision making pattern of the judges. Factors such as Psychological motives and beliefs,
judicial conventions and happenings also influence judges’ decision-making on a large scale.

It is hence illogical according to me to disassociate the decision-making from personal

philosophies. There have been instances where the court changed its mind when it thought
past precedent was unworkable or no longer viable in the present social condition

In the Bank Nationalization case (1970), the court overruled its own judgment almost after
25 years.

Similarly, in Privy Purse Case (1970), the court changed its mind and gave a new decision
after 1 year.

This also happened in the US case of Erie Railroad v. Tompkins, where the Supreme Court
overturned a 96-year-old precedent

This shows that the subjectivity of an individual judge plays the most important role in
deciding the case. It is because of this subjectivity and the inherent morality embedded in the
subconscious mind of the judge which gives the law its dynamic character.
Judicial Decisions can be deduced logically from the predetermined rules without
recourse to the social aims, policy and morality

I would agree/disagree with the points ABC put forward

Law and morality are two normative systems that control and regulate behaviors in a
human community so as to allow harmonious and effective intersubjectivity between
individuals who recognize one another as bearers of rights. Both notions have their
common foundation in the concept of individual autonomy and equal respect for everyone.
They have a complementary relationship. Law compensates for the functional weaknesses
of morality and morality tempers the mechanical implementation of positive law through
the notions of solidarity and responsibility. 

India is a nation with diverse religions and according to me law should be strictly followed
without any recourse to the social aims, policy and morality. Recourse to social aims and
morality according to me would lead to chaos. a law cannot be disregarded merely because it
is morally indefensible. However, a conscious effort must be made to incorporate the aims of
the society into the law to a certain extent so as to secure justice for all. (i.e. The law should
be such that no religious sentiments, social aims and morality of the public is compromised
with) Thus, the aim of all laws should be both the attainment of the end of the state and the
common good of the community, both immediate and ultimate.

Examples:
Cardozo while analyzing judicial process came to the conclusion that there is an element
of creation and discovery contained in the judicial process

I would agree/disagree with the points ABC put forward

Cardozo explained how judges could help make a legal system remain connected to changing
times and values, even while applying a proliferation of rules from decisions rendered in the
past, and often the long-distant past. And he explained how judges could respond when legal
disputes presented situations that existing rules don’t clearly cover. Cardozo did not provide a
neat, formulaic response, but his depiction took root and survived because it was candid,
credible and pragmatic, and because it balanced the virtues of continuity and change.

Cardozo recognized the importance of history and custom in shaping the law. Yet even
though these methods linked law to the past, they did not “confine the law of the future to
uninspired repetition of the law of the present and the past.” On the contrary, Cardozo
thought history could illuminate the past and the present, and in so doing could guide the
future path of the law.

In my opinion, Judges must construe constitutional concepts flexibly, in light of current

conditions and with due respect for the judgments of the legislative branch. Judges are not
merely tools for deriving legal conclusions and the judicial process will not be rationalized
unless forces like logic, history, custom and sociology have been valued. Judges applying
law under such circumstances are going to "make" law, indeed cannot avoid making it.

The two problems to such creation are that of inconsistency and separation of powers.

The making of new law should not be overemphasized. Creativity is not the factor in every
case that it is in the novel case or a reform decision. When novelty, a gap in the law, or
reformation becomes involved, then inevitably "creation" occurs. Additionally, at times,
judge-made laws may be influenced by other factors like social pressure and politics.
The Modern problem of Jurisprudence is a problem of using innovations in science and
technology for an efficient system of law and justice

I would agree/disagree with the points ABC put forward

Jurimetrics is the science of law. Although it is the legislature which is entrusted with the work of
making the law, it is the lawyers and the judges who are intrinsically involved in the study of law
scientifically. In recent years, attempts to predict judicial behaviour have taken a mechanical turn for
which the term ‘jurimetrics’ has been invented. It takes the form of different kinds of investigations
into legal phenomena by using symbolic logic, behavioural models and mechanical aids.

There are some basic differences between jurisprudence and jurimetrics.

For example, jurisprudence is concerned with such matters as the nature and sources of the law, the
formal bases of law,' the province and function of law,’ the ends of law and the analysis of general
juristic concepts. Jurimetrics is concerned with such matters as the quantitative analysis of judicial
behaviour, the application of communication and information theory to legal expression, the use of
mathematical logic in law, the retrieval of legal data by electronic and mechanical means, and the
formulation of a calculus of legal predictability. 5 ‘Jurisprudence is primarily an undertaking of
rationalism; jurimetrics is an effort to utilize the methods of science in the field of law. The
conclusions of jurisprudence are merely debatable; the conclusions of jurimetrics are testable.
Jurisprudence cogitates essence of law, ends and values. Jurimetrics investigates the methods of
inquiry.
India needs to shift from Adverserial to Inquisitorial Legal System

There are two types of Justice Delivery systems though which the quest for Justice can be
achieved.

1. Adversarial Justice Delivery System

2. Inquisitorial Justice Delivery System

Adversarial Justice Delivery System

(Common Law Countries) Countries in which it is followed: United Kingdom, United State
of America, India and other common law countries

The main difference between the two systems is that in common law countries, case law — in
the form of published judicial opinions — is of primary importance, whereas in civil law
systems, codified statutes predominate. But these divisions are not as clear-cut as they might
seem. In fact, many countries use a mix of features from common and civil law systems.

The adversarial or adversary system is a Justice Delivery System used in the common

law countries, where two advocates represent their parties’ case or position before an
impartial person or group of people, usually a judge or jury, who attempt to determine the
truth and pass judgment accordingly.

The adversarial system is the two-sided structure under which criminal trial courts operate,
putting the prosecution against the defence.

The system followed in India for dispensation of criminal justice is the adversarial system of
common law inherited from the British Colonial Rulers. The accused is presumed to be
innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is
guilty. The accused also enjoys the right to silence and cannot be compelled to reply. The aim
of the Criminal Justice System is to punish the guilty and protect the innocent. In the
adversarial system truth is supposed to emerge from the respective versions of the facts
presented by the prosecution and the defence before a neutral judge. The judge acts like an
umpire to see whether the prosecution has been able to prove the case beyond reasonable
doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope
of dispute and decide largely, autonomously and in a selective manner on the evidence that
they decide to present to the court. The trial is oral, continuous and confrontational. The
parties use cross examination of witnesses to undermine the opposing case and to discover
information the other side has not brought out. The judge in his anxiety to maintain his
position of neutrality never takes any initiative to discover truth. He does not correct the
aberrations in the investigation or in the matter of production of evidence before court. As the
adversarial system does not impose a positive duty on the judge to discover truth he plays a
passive role. The system is heavily loaded in favour of the accused and is insensitive to the
victims’ plight and rights. (Malimath Comm. Report)

In the adversarial system truth is supposed to emerge from the respective versions of the facts
presented by the prosecution and the defence before a neutral judge.

Over the years taking advantage of several lacunae in the adversarial system large number of
criminals are escaping convictions. This has seriously eroded the confidence of the people in
the efficacy of the System. Therefore it is necessary to examine how to plug the escape routes
and to block the possible new ones.

Inquisitorial Justice Delivery System

(Civil Law Countries) Countries in which it is followed: China, Japan, Germany, France,
Spain

An inquisitorial system is a Justice Delivery System in which the court, or a part of the

court, is actively involved in investigating the facts of the case.

Prior to the case getting to trial, magistrate judges in the investigation of a case, often
assessing material by police and consulting with the prosecutor.

In the inquisitorial system, power to investigate offences rests primarily with the judicial
police officers (Police/ Judiciare). They investigate and draw the documents on the basis of
their investigation. The Judicial police officer has to notify in writing of every offence which
he has taken notice of and submit the dossier prepared after investigation, to the concerned
prosecutor. If the prosecutor finds that no case is made out, he can close the case. If, however
he feels that further investigation is called for, he can instruct the judicial police to undertake
further investigation. The judicial police are required to gather evidence for and against the
accused in a neutral and objective manner as it is their duty to assist the investigation and the
prosecution in discovering truth. Exclusionary rules of evidence hardly exist. Hearsay rules
are unknown in this System. If the prosecutor feels that the case involves serious offences or
offences of complex nature or politically sensitive matters, he can move the judge of
instructions to take over the responsibility of supervising the investigation of such cases.

To enable the Judge of instructions to properly investigate the case, he is empowered to issue
warrants, direct search, arrest the accused and examine witnesses. The accused has the right
to be heard and to engage a counsel in the investigation proceedings before the judge of
instructions and to make suggestions in regard to proper investigation of the case. It is the
duty of the judge of instructions to collect evidence for and against the accused, prepare a
dossier and then forward it to the trial judge. The accused is presumed to be innocent and it is
the responsibility of the judge to discover the truth. The statements of witnesses recorded
during investigation by the judge of instructions are admissible and form the basis for the
prosecution case during final trial. Before the trial judge the accused and the victim are
entitled to participate in the hearing. However the role of the parties is restricted to suggesting
the questions that may be put to the witnesses. It is the Judge who puts the questions to the
witnesses and there is no cross-examination as such. Evidence regarding character and
antecedents of the accused such as previous conduct or convictions are relevant for proving
the guilt or innocence of the accused.

The accused is presumed to be innocent and it is the responsibility of the judge to discover
the truth.

The standard of proof (The standard of proof is the degree to which a party must prove its
case to succeed) required is the inner satisfaction or conviction of the Judge and not proof
beyond reasonable doubt as in the Adversarial System.

Another important feature of the Inquisitorial System is that in respect of serious and
complex offences investigation is done under the supervision of an independent judicial
officer__ the Judge of Instructions__ who for the purpose of discovering truth collects
evidence for and against the accused.
In evaluating the two systems we should not forget the basic requirement of fairness of trial.
In the inquisitorial system the Judge of instructions combines to some extent the roles of the
investigator and the Judge. Defence lacks adequate opportunity to test the evidence of the
prosecution by cross-examination. The defence has only a limited right of suggesting
questions to the Judge. It is left to the discretion of the Judge whether to accept the
suggestions or not. Thus, the accused does not get a fair opportunity of testing the evidence
tendered against him which is one of the essential requirements of fair trial.

In the Inquisitorial System followed in France the positions of Magistrates and Prosecutors
are interchangeable. The Judge who had functioned earlier as a prosecutor is likely to carry
unconsciously a bias in favour of the prosecution. At any rate it is likely to cause an
apprehension in the mind of the accused that he may not get a fair trial at the hands of such a
Judge.

In the Adversarial System, fairness of trial is adequately assured by the Judge maintaining a
position of neutrality and the parties getting full opportunity of adducing evidence and cross-
examining the witnesses. Thus it is seen that fairness of trial is better assured in the
Adversarial System.
World Scenario

United Kingdom and Australia who are engaged in the reform process do not favour switch
over from the Adversarial System to the Inquisitorial System (Why?). However they have not
hesitated to borrow some of the features of the Inquisitorial System.

Why ka answer:
Pro-inquisitorial system

control lies more in the hands of the judges; reduces the disturbance of the attorneys

In inquisitorial system the trial judges are inquisitors who actively participate in fact-finding
public inquiry by questioning defence, prosecutors, and witnesses. They could even order
certain pieces of evidence to be examined if they find presentation by the defence or
prosecution to be inadequate.

Pro-adversary system

equal opportunity to present opinion; fairness; maintain public confidence

In an adversarial system, judges focus on the issues of law and procedure and act as a referee
in the contest between the defence and the prosecutor. Judges under adversarial system
decide matters of fact, and sometimes matters of the law. Neither judge nor jury can initiate
an inquiry, and judges rarely ask witnesses questions directly during trial.

EviJs v. Lucey (1985) “The very premise of our adversary system of criminal justice is that
partisan advocacy on both sides of a case will best promote the ultimate objective that the
guilty be convicted and the innocent go free.”
Simpson Murder Case file:///C:/Users/DELL/Desktop/Topic%201%20GD.pdf

While preparing for arguments look at:

https://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf
Comparison between the two systems by United Nations Office on Drugs and
Crime (UNODC) 

United Nations Office on Drugs and Crime (UNODC)says, “The inquisitorial system is

associated with civil law legal systems, and it has existed for many centuries. It is
characterized by extensive pre-trial investigation and interrogations with the objective to
avoid bringing an innocent person to trial. The inquisitorial process can be described as an
official inquiry to ascertain the truth, whereas the adversarial system uses a competitive
process between prosecution and defence to determine the facts.

The inquisitorial process grants more power to the judge who oversees the process, whereas
the judge in the adversarial system serves more as an arbiter between claims of the
prosecution and defence.”
Malimath Committee on Criminal Justice Reform in India

The Malimath Committee on Criminal Justice Reform in India recommended shifting of

India Justice Delivery from adversarial system to inquisitorial system, wherein magistrates
are asked to inculcate a dynamic quest for truth for ensuring complete justice, which is not
only done but seen to be done.

The Committee has given its anxious consideration to the question as to whether this system
is satisfactory or whether we should consider recommending any other system. The
Committee examined in particular the inquisitorial system followed in France, Germany and
other continental countries.

The Inquisitorial System is certainly efficient in the sense that the investigation is supervised
by the judicial magistrate which results in a high rate of conviction.

The Committee on balance felt that a fair trial and in particular, fairness to the accused, are
better protected in the Adversarial System.

Views of the Comm:

However, the Committee felt that some of the good features of the Inquisitorial System can
be adopted to strengthen the Adversarial System and to make it more effective. This includes
the duty of the Court to search for truth, to assign a pro-active role to the Judges, to give
directions to the Investigating Officers and Prosecution agencies in the matter of investigation
and leading evidence with the object of seeking the truth and focusing on justice to victims.

Need for reform:

The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not
been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the
investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the
situation. During the trial, the Judges do not bother if relevant evidence is not produced and
plays a passive role as he has no duty to search for truth. As the prosecution has to prove the
case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is
therefore necessary to strengthen the Adversarial System by adopting with suitable
modifications some of the good and useful features of the Inquisitorial System.

“Truth does not pay homage to any society ancient or modern. But society has to pay homage
to truth or perish” - Swami Vivekananda.

It is worthwhile to recall the following observations of Dr. R.Venkataraman, former President

of India. “The Adversarial System is the opposite of our ancient ethos. In the panchayat
justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek
the truth, but only decides whether the charge has been proved by the prosecution. The Judge
is not concerned with the truth; he is only concerned with the proof. Those who know that the
acquitted accused was in fact the offender, lose faith in the system”.

The Supreme Court has criticised the passive role played by the Judges and emphasized the
importance of finding truth in several cases.

1. In the case of Ram Chandra vs. State of Haryana, AIR 1981. SC 1036, the Supreme
Court has said: ...there is an unfortunate tendency for a Judge presiding over a trial to
assume the role of referee or umpire and to allow the trial to develop into a contest
between the prosecution and the defence with the inevitable distortion flowing from
combative and competitive elements entering the trial procedure.
2. In the case of Mohanlal vs. Union of India, where best available evidence was not
brought by the prosecution before the court, the Supreme Court observed as follows:
In such a situation a question that arises for consideration is whether the presiding
officer of a Court should simply sit as a mere umpire at a contest between two parties
and declare at the end of the combat who has won and who has lost or is there not any
legal duty of his own, independent of the parties to take an active role in the
proceedings in finding the truth and administering justice? It is a well accepted and
settled principle that a Court must discharge its statutory functions- whether
discretionary or obligatory – according to law in dispensing justice because it is the
duty of a Court not only to do justice but also to ensure that justice is being done.

In practice however we find that the Judge, in his anxiety to demonstrate his neutrality opts to
remain passive and truth often becomes a casualty. Failure to ascertain truth may be on
account of errors or omissions on the part of the investigation agency, the prosecution or the
faulty attitude of the parties, the witnesses or inadequacies in the principles and laws
regulating the system. There is no provision in the Code which expressly imposes a duty on
the court to search for truth. It is a general feeling that it is falsehood that often succeeds in
courts.

Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star
of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must
protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very
soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This
can be achieved by statutorily mandating the courts to become active seekers of truth. It is of
seminal importance to inject vitality into our system if we have to regain the lost confidence
of the people. Concern for and duty to seek truth should not become the limited concern of
the courts. It should become the paramount duty of everyone to assist the court in its quest for
truth.

In Germany Section 139 of the so called ‘Majna Charta’, a breach of the Judges’ duty to
actively discover truth would promulgate a procedural error which may provide grounds for
an appeal.

Technical or non-fulfillment of any procedural requirement or inadequacies of evidence or

nonexamination of material witnesses, mistakes in investigation and similar other factors
have quite often contributed to acquittals. This amounts to failure of the courts’ to search for
truth to do justice. Therefore the Committee is of the view, that in such situations, the court
concerned should not be allowed the shortcut of acquitting the accused. A statutory obligation
should be placed on the court to take such steps as may be necessary, or to issue such
directions as may be required, to remove the deficiencies. This may include examining
witnesses and directing fresh or proper investigation by any appropriate agency.

Last few points take from:

https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf

https://www.thehindu.com/news/national/the-malimath-committees-recommendations-on-
reforms-in-the-criminal-justice-system-in-20-points/article61493071.ece
https://blog.ipleaders.in/how-did-india-decide-between-the-adversarial-and-inquisitorial-
system-of-criminal-justice-in-light-of-plea-bargaining-and-article-203/

https://www.indialawjournal.org/the-power-of-judge-to-put-questions-an-exception-to-
adversarial-justice-system.php