Adversarial Legal System- An Anathema to the Truth

Adv. M. Sundara Rami Reddy

Phone: 9940304821, Email: [email protected]

यानि मिथ्या अभिशस्तानाम् पतन्त्य् अस्राणि राघव |

तानि पुत्र पशून् घ्नन्ति प्रीत्य् अर्थम् अनुशासतः || २-१००-५९ Sri Rama in
Valmiki Ramayana Ayodhyakana, 100-59

O Bharatha, if injustice is done to any one, as many drops of water from their
eyes falls, so many births, the person who is decides unjustifiably, has to
under go the warth. (not true translation)

The aim of any legal system is to arrive to truth. Whether Indian formal legal system is in that
direction is the question to ponder.

Government of India, Ministry of Home Affairs by its order dated 24 November 2000, under Chairman
ship of V.S.Malimoth and the said Committee submitted its report in March 2003 and in it, it is stated
that at Page 24:

“2.4. There are two major systems in the world. There are adversarial systems which have borrowed
from the inquisitorial system and vice versa.”

“2.2. The system followed in India for dispensation of criminal justice is the adversarial system of
common law inherited from the British Colonial Rulers. …. 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…... 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.”

It is a pity to note that the Committee forgotten our own system i.e Dharmic Legal System / Nyaya
Shastra.
Let us now examine:
 Adversarial Legal System
 Inquisitorial Legal System
 Dharmic Legal System / Nyaya Shastra

1. Adversarial Legal System:

Under this system truth is the “first casualty”. The adversarial system or adversary system or
accusatorial system or accusatory systemis a legal system used in the Common Law countries such as
India, UK, USA, Austria, Canada. In this system the Court Proceedings are focused on the adversarial
nature, where the disputing parties have engaged advocates, who act like adversaries in the court of law
and each advocate fights tooth and nail against the other in order to win the case. The judge in the court
acts like a neutral observer listens patiently to the advocates of each party. The judge does not play an
active role in going beyond the evidence presented by both the adversary advocates. They depend upon
the skills of the advocates who present their best possible case before the “neutral judge”. He has to be
satisfied on the evidence presented by the advocates only. He does not take any interest in establishing
the truth underlying the claims of the disputing parties.

In an Article in Forbes website it is stated:

“Lawyers must be honest, but they don’t have to be truthful. Honesty and truthfulness is not the same
thing. Being honest means not telling lies. Being truthful means actively making known all the full truth
of a matter. Lawyers must be honest, but they do not have to be truthful. A criminal defense lawyer, for
example, in zealously defending a client, has no obligation to actively present the truth. Counsel may not
deliberately mislead the court, but has no obligation to tell the defendant’s whole story.”i

Law isn't about truth. It’s about proof. Proof is to the satisfaction of the court, in other words the
judge. Satisfaction is a relative term. The judge may appear to be appreciative, in fact may be
ignorant, and may act because of external considerations, in satisfying himself.

A witness during trial takes oath in the court and states that “the whole truth and nothing but the
truth”. What he tells thereafter is left to the interpretation.Even the evidence and the legal position, its
interpretation is left to the Judges.
The Supreme Court of India, the ultimate judiciary is having unfettered powers. Article 141 of the
Constitution says that:“The law declared by the Supreme Court shall be binding on all courts within the
territory of India.”ii And Article 144. “All authorities, civil and judicial, in the territory of India shall act in
aid of the Supreme Court.”iii

Today the Supreme Court can give a judgment / order and tomorrow they can reverse it, on the same
point. Without giving any reason, they can pass an order. Even the monarch will not have such powers!.
Such is the power the courts in India, absolute and arbitrary powers. Nobody can question the same.
The authority of judgments of the higher Courts is given the technical name ‘judicial precedent’.

As lawyers we are in such an Adversarial / Common law system and that system corrupts. Today no
lawyer can positively say with confidence that he win a particular case, though truth is in his client,
weather it is Criminal or Civil and even he cites number of case law and statutory provisions.

In the “Malimoth Committee report”, it is mentione that, it is worthwhile to recall the following
observations of Dr. R.Venkataraman, former President of India as:
“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”.iv

‘यतोधर्मस्ततोजयः’ is the motto of the Supreme Court of India. Our

Dharmic motto is attached to the symbol of alien system.

This Adversarial / Common law system is artificial, unnatural and brings truth by chance only otherwise
it will not be finding the truth. Macaulay thrust on us this system and we have taken it for granted.

Our country has missed the opportunity to correct it twice.

First time while adopting theConstitution. For the demands of the members of the Constituent Assembly
for making the Indian Constitution on the basis of Indian polity and village system, Nehru shut their
mouth and closed the debate and asked to adopt the Constitution as drafted stating:

“This House cannot bind down the next generation, or the people who will duly succeed us in this task.
Therefore let us not trouble ourselves too much about the petty details of what we do, those details
will not survive for long, if they achieved in conflict”.v

The Second timeafter independence, in 1955 the 5th (1st after independence) Law Commission of India
was formed, with M C Setalvad as its Chairman. It said that “It would be ridiculous, it is said, for social
welfare State envisaged by our Constitution which itself is based largely on the Anglo-Saxon. Model to
think of remodeling its system of judicial administration on ancient practices, adherence to which is
totally unsuitable to modern conditions and way of life.” Then the commission writes that “It is not easy
to discover the details of the system of judicial administration which obtained in India prior to the
introduction of the present system of British.” viThe Commission had the opportunity to promote
indigenous system. But it opted for the Adversarial/English system.

The thrust of Adversarial legal system on Bharat by the English is not accidental and it is well thought
over plan, to destroy every institution that was prevailing in Bharat. The culprit was James Mill, through
his theories enunciated in his infamous work ‘The British History of India’. He did not mince words. He
wrote that:

“The conquest of Hindustan, affected by “Mahomedan nations”, was to no

extraordinary degree sanguinary of destruction. It substituted sovereigns of
one race to sovereigns of another, and mixed with the old inhabitants a small
proportion of new; but it altered not the texture of society, it altered not the
language of the country, the original inhabitants remained the occupants of the
soil; they continued to be governed by their own laws and institutions, may the
whole detail of administration, with the exception of the army, and a few of
the more prominent situations, remained invariably in the hands of the native
magistrates and officers.”vii

With this motive, his disciple Macaulay came to Bharat in 1834 stating that:
 “Our English schools are flourishing wonderfully. We find it difficult indeed, in
some places impossible to provide instruction for all who want it. At the single
town of Hooghly fourteen hundred boys are learning English. The effect of this
education on the Hindoos is prodigious. No Hindoo who has received an
English education ever remains sincerely attached to his religion. Some
continue to profess it as a matter of policy; but many profess themselves pure
Deists, and some embrace Christianity. It is my firm belief that, if our plans of
education are followed up, there will not be a single idolater among the
respectable classes in Bengal thirty years hence. And this will be affected
without any efforts to proselytize; without the smallest interference with
religious liberty; merely by the natural operation of knowledge and reflection.
I heartily rejoice in the prospect.I have been a sincere mourner for Mill. He
and I were on the best terms, and his services at the India House were never
so much needed as at this time. I had a most kind letter from him a few weeks
before I heard of his death. He has a son just come out, to whom I have shown
such little attentions as are in my power.”viii

Kautilya in his Arthasharthra has described the legal system which should not, which actually fits for
Adversarial Legal System as: “By discarding the good and favoring the wicked and causing unrighteous
injuries by discontinuing righteous customary practices and by indulging in unjust acts an suppressing
just ones, by doing what ought not to be done and not doing what ought to be taken, by not punishing
the guilty and punishing those not deserving to be punished, by arresting those who ought not to be
arrested and not arresting those who ought to be arrested by undertaking harmful works and destroying
profitable ones and by falling to protect subjects from thieves and by robbing them of their wealth, by
running human exertions, by condemning good work by hurting the leaders, dishonoring those worthy of
honor, by provoking the elders, by partiality and falsehood, by not applying remedies against evil sand
neglecting works in hand, through negligence the person or property or indolence of the ruler in
protecting the person or property of the subjects, through these causes- decline, greed and disaffection
are produced among the subjects. Subjects when impoverished become greedy; when greedy they
become disaffected, when disaffected, they either go over to the enemy or themselves kill the ruler”.
(Katuliyan Jurisprudence- p- 14)
 2. Inquisitorial Legal System:
This system is followed in France, Germany and Italy.: Unlike the passive roleof the judges in finding the
truth and being dependent on the ability of theadvocates to establish the fact of the matter, the judges
in the ‘Inquisitorial Legal System’ play active roles in finding the truth. The approach followedin the
court proceedings is not adversarial in nature but ‘inquisitorial’ (theterm ‘inquisition’ means
investigative). The judges do not simply act as areferee between the prosecutor and the defense but
they actively investigate the matter themselves with the co-operation of all disputing parties and
tryto establish the truth by collection of evidence. Collection of evidence is thusnot the sole
responsibility of the advocates but the judges too. Judges maygo to the scene of the crime and collect
evidence on their own if they thinkthat the evidence produced by the advocates of the disputing parties
leavesome doubts as to the establishment of the truth. Judges are not passiveobservers but active
participants in the quest to establish the truth.

This system appears to be better than Adversarial system, and we have to see as to how it works.

3. Dharmic Legal System / NyayaShastra:

Justice is the basis of Law. Philosophy is the support of all Laws. India, for centuries had a robust legal
system. It was based on Dharma and administered through the communities, panchayats, trade guilds,
caste and sub casteorganizations, local groups, family and larger families etc. Legal System should have
two wings. One is theoretical and other is its implementation. In our society, Dharma has percolated to
the last man. The machinery that is adopted to percolate Dharma and ingenious methods is really great.
A man on the street talks about Dharma and it is amazing. It is possible though the media of folk songs,
folk tales, Hari katha, Burra Katha, Pravachanam, adhereing to various deities, temples and so on.
Pandits, who is well versed with the Vedas, Upanishads, Puranas and other Dharma sastras/grandhas
occupy pivotal position in the society and their services were called in the complicated matters. This
system is in vogue even today. Dharma is applied locally and disputes are resolved instantly. The great
Kautilya in his Arthasasthra, very lucidly explained Bharat Legal System, as brought out by V. K. Gupta, in
his book ‘KAUTILYAN JURISPRUDENCE’.

“In India more than 70% of disputes were resolved by village Panchayats, comprising selected
(by disputants) members of village. It means the role of Ordinary Law Courts in India is that of
a small tip of ice berg”.ix
I can say, as a villager, that even 80 to 90 % of the disputes are settled informally. No technicalities, no
fees is collected to render justice, amicably, to the satisfaction of all the disputes are settled.

Shivaraj S. Huchhanvar explained that “In villages, the local village councils or Kulani, similar to modern
panchayat, consisted of a board of five or more members to dispense justice to villagers. It was
concerned with all matters relating to endowments, irrigations, cultivable land, punishment of crime, etc.
village councils dealt with simple civil and criminal cases. At higher level in towns and districts the Courts
were presided over by the government officer under the authority of King to administer the justice. The
link between the village assembly in the local and the official administration was the head man of the
village. In each village, local head man was holding hereditary office and was required to maintain order
and administer justice, he was also a member of village council he acted both as the leader of the village
and mediator with the government.”x(ix)

“The ancient Dharmasastras declared that Dharma which included the ‘law’ was binding on the king.
According to Rajadharma, the king was given the power only to enforce the law. Dharmasastras did not
confer on or recognize any legislative power in the king. This is the most important distinction between
the concept of kingship in India and the concept of kingship in the western countries. According to
western concept king was the foundation of all the three important limbs of the state viz., the Legislative,
the Executive and the Judiciary. But under the kingship as recognized and established under the
Dharmasastras the laws were those laid down by the Dharmasastras themselves. They did not authorize
the king to lay down new laws or amend the provisions of Dharmasastras. On the other hand,
Dharmasastras also laid down the laws governing the conduct of the king himself (Rajadharma).” xi

Sri S SDhavan, former Judge of Allahabad High Court stated that Indian Judiciary is the oldest in the
World and no other Judicial System is as ancient and exalted pedigree in nature. But before describing
the judicial system of ancient India I must utter a warning. The reader must reject the colossal
misrepresentation of Indian Jurisprudence and the legal system of ancient India by certain British
writers. I shall give a few specimens. Henry Mayne described the legal system of ancient India " as an
apparatus of cruel absurdities". An Anglo-Indian jurist made the following remark about what he called
"the oriental habits of life" of the Indians before the British turned up in India: "It (British rule in India) is
a record of experiments made by foreign rulers to govern alien races in a strange land, to adapt
European institutions to Oriental habits of life, and to make definite laws supreme amongst peoples who
bad always associated government with arbitrary and uncontrolled authority." Alan gledhill, a retired
member of the Indian Civil Service, wrote that when the British seized power in India, "there was a
dearth of legal principles."

“These statements are untrue. It is not for me to guess why they were made. They may be due to sheer
ignorance, or imperialist self-interest, or contempt for Indian culture and civilization which was a part of
the imperialist outlook which dominated British Jurists, historians, and thinkers in the heyday of
imperialism. But the effect of this misrepresentation, which has few parallels in history, was to create a
false picture of the Indian judicial system both in India and outside.” xii

Conclusion:

Shri Justice S. Abdul Nazeer, as a sitting Supreme Court judge delivered a Speech, in Decolonization
Indian Legal System on 26 December 2021 at the National Conference of Akhil Bharateeya Adhivakta
Parishad xiiihas said:

“A Colonial psyche persists in the administration of justice in the present day Indian legal system. The
British colonialists protected their subjects only on the surrender of the rights to the rulers. In other
words, Justice could not be demanded but rather it was allowed by the State as a matter of concession.
This is in contrast to the ancient Indian legal systems, where justice could be demanded, being the
concept that was inbuilt. Ancient legal systems of India even required kings to bend before the rule of
law and justice could be demanded against the kin or even the king himself. Instead of this approach, the
colonial mindset left behind by British colonialists is apparent from the manner in which pleadings are
drafted in Court today, the way in which the Courts are addressed and more importantly, by accessibility
to Court itself”xiv, observed the Judge.

He further said that:

“The need of the hour is the Indianisation of the legal system. The eradication of such a colonial mindset

may take time but I hope that my words will evoke some of you to think deeply about this issue and the
steps that need to be taken to decolonize the Indian legal system. Even though it may be an enormous
and time-consuming effort, I firmly believe that it will would be an endeavor which could revitalise the
legal system and align it with the cultural, social and heritage aspects of a great Nation and ensure much
more robust delivery of justice!”
Justice PN Prakash, who recently retired from Madras High Court, has called the judicial system as ‘farce’
and the use of the word ‘bogus’ will be harsh. He said that Indian courts are merely passing judgments,
not delivering justice.“He asserted that though calling our judicial system bogus will be harsh, one can
call our judicial system a ‘farce’.

He argued that the jurisprudence of the West was shaped by the Greek belief system that this is only
one life and that time is linear. However, Indians believe in several lives, and also in the theory of Karma.
For us, time is cyclical and that is why we suffer injustices stoically. We accept boycotts of courts by
lawyers and also long delays in the disposal of cases. We attribute all this to our Karma.

“Truth and justice are twin sisters. And in the absence of truth in the system, what we are delivering is
not justice, but merely judgments.”xv

Hence, it is high time:

 To dispense the artificial Adversarial legal system,

 To water and nourish the indigenous legal system, which is limping
 and as a stop gap, to adapt Inquisitorial legal system which will arrive at truth, and
 Decentralization of legal system is required.
 Decentralization of legal system of political establishments is also required.
 Strengthen panchayaths, not elected, but selected, evolved naturally.
 Further research may be carried in this direction.
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