India needs to shift from Adversarial to Inquisitorial Legal System.

An adversarial system is one in which the judge serves as a mediator between the
prosecution and the defense. The entire procedure is a competition between two
parties. In terms of crime, there are two parties: the state and the person accused.
The judge plays a nonpartisan role in this process. The onus to prove and justify
their sides belong to either parties.

An inquisitorial system is a legal system in which the judge actively participates

in the proof of facts by investigating the case. This system is responsible for
resolving disputes and ensuring justice for individuals and society.

Dr. R. Venkataraman observed that the adversarial system is diametrically

opposed to ancient knowledge and values. They were seeking the truth in
panchayat justice as it is done in an inquisitorial system, whereas in
the adversarial procedure, the Judge does not seek the truth, but only decides
whether the charge has been proven by the prosecution. The Judge is
unconcerned about the truth; he is only concerned with the evidence provided
by the both parties. Those who discover that the acquitted accused was, in fact,
the perpetrator, lose faith in the system.

Instances where India adopted fragments of inquisitorial system.

The Justice Malimath Committee submitted a report that was in favor of taking
in elements from the inquisitorial system of investigation used in countries such
as Germany, France, New Zealand and Italy where the investigation is overseen
by a judicial magistrate. The committee suggested that the court system be
given the authority to summon anyone, whether or not they were named as a
witness, for questioning if they deemed it necessary.
 Post Malimath committee- the new duty was given to judges to question or
demand documents or witness for judicial purpose. The Supreme Court
observed in the case of Mohan Lal vs. Union of India that producing the
most significant and best available evidence that the judge can ask for, is
ideal of any trial and what would be considered perfect justice. In order to
maintain neutrality, the judge would not request evidence and instead
would seem to be appear unassertive.

Zahira Habib Ulla Sheikh vs. Gujarat State (2004)

In the light of this case, the Supreme Court observed that sections 165 of
the Indian Evidence Act and 311 of the Code of Criminal Procedure are in
place to ensure that the entire truth is presented to the court and that it is
the court's federally mandated duty to exercise its power and authority in
the appropriate circumstances.

 Inquisitorial is more preventive than punitive.

 As per the data presented by the International Data on Crime and Justice,
countries with adversarial systems have a higher crime rate.

Crime rates in inquisitorial countries:

 42.88- new Zealand,33.72- Norway, 25.54- Austria (according to 2022)

United Arab Emirates- a monarchy with an inquisitorial approach is at 15.23.
 The crime rate in Germany for 2020 was 6,386 crimes per 100 thousand
people,
Thus it becomes the fifth year in a row that the crime rate has fallen in the
country
An argument for inquisitorial system

 The general goal of the inquisitorial system is to obtain the truth through
extensive investigation and examination of all evidence.
 The conduct of the trial is in the hands of the court in an inquisitorial system.
The trial judge decides which witnesses to call and the order in which they
will be heard.
 Inquisitorial systems make little use of any sort of judicial precedent in order
to give judges complete freedom. This means that judges can decide each
case independently of previous decisions by applying the relevant statutes.
 Under this system, managing cases and suits become efficient and easy
while the judges sit with the parties and can discuss issues before making
any decision to expedite the disposition of any case.
 Judges have broad discretion in an inquisitorial system.
 The primary goal of this system is to shorten the time it takes to resolve a
case and to ensure prompt justice. The judge takes an active role in deciding
time petitions and has the authority to honor or reject them.

Plea bargaining was a special provision added to the CrPC, 1973. This is a kind
of pretrial negotiation between the accused and the prosecution. An alternative
manner to deal with criminal cases. It prevents the rigorous process of trial and
collecting evidence, and also increases the speed of the justice system. Plea
bargaining ruins any amount of thorough evidence check and trial efficiency
chances as the accused pleads guilty before the trial even starts and that
eliminates room to look for accomplices, further details which may add onto the
crime that the accused being tried for in the case that the accused is actually
guilty. On the other hand, through plea bargains, we send persons to
prison with virtually no evaluation of evidence beyond that of the
prosecutor. In the general essence of a federal system all around the
world, over 97% of felony convictions are the result of a plea bargaining.
The root of a case is barely explored and any future attempts to
preventing the same crime happening in the future is also eliminated.
Inquisitorial systems believe that permission of a plea deal happens only
when the plaintiff has turns over all evidence to the defense and the
judge further examines the case and evidence to provide oversight.

Judicial Decisions can be deduced logically from the predetermined rules

without recourse to social aims, policy and morality.

Morality is the quality of acting in accordance with ethical principles. Morality

refers to a set of rules that govern one's behavior in terms of right and wrong.
The term encompasses three ideas: (1) standards of morality, which refer to our
conduct; (2) moral culpability and duty, which refers to our conscience and
intention; a moral character, which refers to someone who is able to understand
the difference of doing the right or wrong thing. However this school of law-
legal Positivism as suggested by Austin and Bentham suggests that idea of
morality may not be what governs the legal system at all times.

Positivism

It was believed that moral judgments cannot be established or defended by

rational argument, evidence or proof. According to positivism, the study of law
should be limited to the textual laws and regulations that are stated by the state.
The most appropriate sources of law, according to all positivists, are formally
established rules and principles. As a result, laws in the original sense are
statutes approved by the legislature, precedents established by competent
courts, and constitutions.

Other legal theorists

Kelson

As stated by Kelson, the 'pure' theory is a titular statement about how he states
the law should be comprehended; he contends that it must be created off of a
system of 'ought's' (as to how a rational human ought to behave in each
situation) or 'standards, or norms.' but he also acknowledges that the law is
made up of legal rules and legal acts as established by those norms. Kelson
defined 'norms' as something that should be or happen, particularly that an
individual should have behaved in a certain way.

Joseph Raz

A legal theorist, Joseph Raz, contended that the authenticity and existence of
any legal system can indeed be tested by referring to three factors: sources,
efficacy, and institutional character.

He claims that law is autonomous and can be recognized without recourse to

morality. According to him, the existence and subject matter of every law can
be assessed by performing a factual investigation into conferences, institutions,
and the intentions of the legal system's participants. Law is always concerned
with facts, never with moral judgments, and as a result, some regard Raz as a
Hard Positivist. According to him, the law is authoritative and it guides
behavior in ways that the moral code cannot; the law claims primary
importance over all other codes of conduct and is the supreme authority.
 In the case of Keshav Singh, it was held that the Constitution is paramount and
sovereign in a democratic republic governed by a written Constitution.

Legislators, Ministers, and Judges all pledge loyalty to the Constitution because
it is from its pertinent provisions that they obtain their authority and
competence, and it is to these articles that they owe loyalty. The supreme court
also warned that if parliament or legislative bodies passed legislation defining
their powers, privileges, and immunities, they would be subject to Art. 13 of the
Constitution, which states that any law that violates basic rights is void to the
degree of the violation.

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

Precedents 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 environmental circumstances.

How judges should resolve cases is the core subject of The Nature of the Judicial
Process. Cardozo's response is that judges should do what courts have traditionally
done in the Anglo-American legal tradition, which is to follow and apply the law in
easy situations and develop new law in difficult ones by weighing opposing
reasons, such as the overriding value of social welfare. According to Cardozo,
there are four main approaches of legal analysis: (1) the method of logic (or
"analogy," or "philosophy"), which seeks to extend legal principles in ways that
preserve logical consistency; (2) the method of history (or "evolution"), which
refers to the legal rule or concept's historical origins; (3) the method of custom,
which views social customs as helpful guides to community values and settled
expectations.
Cardozo concluded that there is an element of creation and discovery in the judicial
process after analyzing it. The judicial process will not be justified unless logic,
history, custom, and sociology are regarded. Justice Cardozo clearly demonstrated
the creative role that a judge can play in the application and interpretation of law in
his writings and legal opinions. The theory of free judicial ruling recognizes the
matter of interpretation as an element of human creativity. It expressly
acknowledges factors such as concerns, hopes, empathy, and preferences for policy
matters pertaining to constitutional interpretations. In reality, they cannot be
divorced from social causes because judicial decisions are, at their core, human
decisions. This theory of 'free legal decision' sheds light on the judge's policy -
making roles.

Although precedents have a significant part in decision-making, the judge uses his
creative and judicial mind to act in a fair and just manner after taking into account
the current circumstances. Different origins, experiences, and qualities have all
been proposed as being a crucial influence in understanding and forecasting the
judges' varying voting patterns.

Judges, according to realists, choose the outcome of a case before evaluating

whether the result is based on a well-established legal theory.' To put it another
way, a judge looks at the facts and decides how to rule without first looking at
precedent or statutory law. Once the judge has reached a decision, he or she will
hunt for precedent in the form of case law or statutory regulations to back up the
decision. Only in exceptional cases, where no such premise can be discovered, can
the judge shift his or her decision to one that can be justified.'
The Indian Supreme Court recognized the importance of expertise, particularly for
judges, in Hindusthan Times Ltd. v. Union of India, where the court highlighted
the need for judges to equip themselves with the necessary tools to write
qualitative and thought-provoking judgments.

The modern problem of jurisprudence is a problem of using innovations in

science and technology for an efficient system of law and justice

The development has created a powerful tool in the hands of law enforcement and
the judiciary. Anthropometry, fingerprinting, odontology, and serology were all
developed to help with criminal justice administration. As a result, barbaric and
torturous methods of criminal investigation have no place in a civilized society.
Several tools have emerged, and technology is being used in the judicial process.

DNA testing

Forensic science's contribution is unavoidable. Orthodox methodology is no longer

applicable for an individual. DNA evidence is admissible in the United States
under evidence law. DNA testing has a wide range of applications, including
maternity, paternity, rape, and murder cases. Personal identification is also made
possible by this technology. If DNA technology is used correctly, it has the
potential to significantly improve the quality of criminal justice. DNA-based
technologies continue to emerge.

Tape records
As defined in Section 3 of the Evidence Act, tape-recorded conversations and
speeches were documents that could be legally considered.

A tape-recorded conversation is admissible as evidence under Section 8 of the

Evidence Act.

It is also argued that photo technology and video conferencing are extremely useful
in the judicial process, and that phone conversations can be used to expose links
between terrorists, underground dawns, and politicians on the one hand.

With the current trend with adaptation of science and technology, psychology can
be used as one of the Polygraph-lie detector and are advanced scientific tools in the
hands of law enforcement agencies.

Polygraph and brain fingerprinting

Polygraph and brain fingerprinting are non-invasive techniques that detect

deception without causing physical or mental harm to the subject. The polygraph
and p-300 results are graphs and expert readings. As a result, it is purely an
assessment of opinion and their subsequent opinions based on reading and
comprehending such graphs. There is no compulsion or violation of Article 23 in
these tests because the person being tested is not required to make any statement.

The Supreme Court held in Daubert v. Merrell dow pharmaceuticals that scientific,
technical, or other special knowledge would aid the trial of facts in understanding
the evidence or determining a fact in issue. Following Daubert, numerous states
have used the same criterion to determine whether expert testimony or scientific
proof is admissible.

In Jitu Bai Babu Bai Patel v. Gujarat, the Indian judiciary gave its approval to the
practice of narco analysis.
In this case, the Supreme Court ruled that conducting a narco analysis test on the
accused during the investigation does not violate constitutional guarantees under
Articles 20 (3) and 21 of the Indian Constitution. Narco analysis is a diagnostic and
psychotherapeutic technique that employs psychotropic drugs, particularly
barbiturates, to induce a stupor in which mental elements with strong associated
affects emerge and can be used by the therapist.

5)

Judges, according to realists, choose the outcome of a case before evaluating

whether the result is based on a well-established legal theory.' To put it another
way, a judge looks at the facts and decides how to rule without first looking at
precedent or statutory law. Once the judge has reached a decision, he or she will
hunt for precedent in the form of case law or statutory regulations to back up the
decision. Only in exceptional cases, where no such premise can be discovered, can
the judge shift his or her decision to one that can be justified.

Although precedents have a significant part in decision-making, the judge uses his
creative and judicial mind to act in a fair and just manner after taking into account
the current circumstances. Different origins, experiences, and qualities have all
been proposed as being a crucial influence in understanding and forecasting the
judges' varying voting patterns.