COMMON LAW FOUNDATIONS VS. CIVIL LAW & ADVERSARIAL VS.

INQUISITORIAL SYSTEMS
COMMON LAW FOUNDATIONS OF INDIAN LEGAL SYSTEM
 Origin: Indian legal system is rooted in the English common law tradition, introduced
during British colonial rule and retained after independence.
 Precedent (Stare Decisis): Law is primarily formed through judicial decisions; lower
courts must follow higher court rulings, ensuring consistency and predictability.
 Judicial Role: Judges interpret statutes and set binding precedents. New principles
can develop case by case, giving law flexibility.
 Codification: Unlike England, India has many codified laws (e.g., Indian Penal Code,
Evidence Act). However, judges interpret these codes, and their decisions shape
application and evolution of the law.
 Constitutional Integration: Article 141 of the Constitution makes Supreme Court
rulings binding on all other courts. Indian courts also have the power to strike down
laws violating constitutional rights (judicial review).
 Adaptation: Despite English foundations, Indian courts frequently adapt and diverge
from English common law to fit Indian societal needs.
Contrasted with Civil Law
 Civil Law: Based on comprehensive written codes (e.g., French, German systems).
Judges mainly apply statutory law, and precedent is not binding.
 Judge Role: In civil law, judges have a more limited function, usually just
interpreting and applying the code, not developing new principles through precedent.
 Countries (Civil Law): France, Germany, Italy, Spain, Japan.
ADVERSARIAL VS. INQUISITORIAL SYSTEM
Adversarial System
 Definition: Dispute resolution system where each party presents its case to a neutral
judge (and often a jury), and the judge/jury acts as a passive arbiter.
 Features:
 Parties control evidence and arguments.
 Judges have a neutral, supervisory role.
 Core to common law systems (England, India, USA, etc.).
 India & England:
 Used in both civil and criminal matters.
  Emphasizes oral argument and cross-examination.
 Lawyer-driven procedure; the judge normally does not independently
investigate.
 Other Examples: USA, Canada, Australia.
Inquisitorial System
 Definition: The judge actively investigates the case, questioning witnesses, gathering
evidence, and leading the inquiry to uncover the truth.
 Features:
 Judge-driven investigation.
 Written procedure emphasized.
 Parties play a more limited, supporting role.
 Core to civil law systems (France, Germany, etc.).
 Other Examples: France, Germany, Italy, Spain, Japan.
Rule of Law; Rex Lex and Lex Rex
Concept of Rule of Law
Rule of law means that law, not individual will, governs the state: all persons and
authorities, public and private, are subject to and protected by laws that are publicly made,
applied equally, and enforced by independent courts. Core ideas are:
 No one is above the law – rulers and officials are as bound as ordinary citizens.
 Equality before the law – the same law applies to all; special privileges and arbitrary
exemptions are rejected.
 Limits on arbitrary power – government must act within legal powers, for proper
purposes, and can be checked by courts.
 Protection of rights and access to justice – basic rights and fair procedures, including
affordable, timely dispute resolution, are integral in modern accounts of rule of law.
Rex Lex and Lex Rex
These Latin slogans capture opposite ideas about the relationship between ruler and law:
Rex Lex – “The King is Law”
 Meaning: The ruler’s will is the ultimate source of law; law is whatever the king (or
sovereign) commands.
 Implication: The sovereign is above or outside law; this reflects rule by man, close
to absolutism and contrary to modern rule-of-law ideals.
Lex Rex – “The Law is King”
 Meaning: Law stands above the ruler; the ruler governs only under and according to
pre-existing legal norms.
 Implication:
 Government powers are derived from and limited by law.
 Rulers can be judged and restrained by courts and constitutional rules.
 This aligns directly with the modern rule of law: no person, not even the
sovereign, is above the law.
Doctrine of Separation of Powers (Montesquieu) – Meaning and Significance
 Montesquieu argued that state power must be divided into three distinct functions:
 Legislature – makes laws.
 Executive – implements and enforces laws.
 Judiciary – interprets and applies laws in disputes.
  His core warning: when legislative, executive and judicial powers are united in the
same person or body, liberty is in danger because that person/body can both make
oppressive laws and enforce them in a tyrannical way.
 Separation of powers therefore aims to:
 Prevent concentration of power and dictatorship.
 Secure individual liberty by diffusing authority.
 Ensure each organ focuses on its core function and is structurally independent.
India position Article 246 (Union, State and Concurrent list), Article 131, Article 32,
article 226 etc.
Principle of Natural Justice: Rule Against Bias (Nemo Judex in Causa Sua),
Rule of Fair Hearing (Audi Alteram Partem), Reasoned Decision
Principles of natural justice are judge-made rules of fair procedure: mainly (i) no bias, (ii)
fair hearing, and (iii) reasoned decision. In India they are not textually named in the
Constitution, but are read into:
 Preamble: justice, liberty, equality.
 Article 14: equality before law; arbitrariness (including denial of fair procedure)
violates Art. 14.
 Article 21: “procedure established by law” must be just, fair and reasonable (Maneka
Gandhi); natural justice is part of this fair procedure.
 Article 22: basic fair-hearing safeguards for arrested persons.
 Article 39-A: equal access to justice and free legal aid.
Courts use Articles 14 and 21 as the main constitutional “home” of natural justice,
with Articles 32, 136 and 226 providing remedies when these principles are violated.

Rule Against Bias – Nemo Judex in Causa Sua

Meaning
“No one should be a judge in his own cause.” Any decision taken by an authority that is
biased, or appears reasonably likely to be biased, offends natural justice and is void or
voidable.
Types of Bias
 Personal bias: friendship, hostility, family relationship, or other close connection with
a party.
 Pecuniary bias: any financial or proprietary interest in the outcome (even small).
 Subject-matter bias: strong prior involvement or pre-judgment on the very issue.
Tests Used by Courts
 “Real likelihood of bias” or
 “Reasonable apprehension of bias” from the viewpoint of a fair-minded observer.
If such likelihood/apprehension exists, the authority must recuse; otherwise the decision is
liable to be quashed as violating Articles 14 and 21.
Rule of Fair Hearing – Audi Alteram Partem
Meaning
“Hear the other side” / “No one should be condemned unheard.” Before any decision that
adversely affects rights, livelihood, status or property, the person must get a fair opportunity
to present their case.
Essential Components
1. Prior Notice
 Clear, specific and adequate notice of: the proposed action, charges/grounds,
and date, time and manner of hearing.
 Rooted in Articles 14, 21; reinforced in Article 22 (grounds of arrest to be
communicated, right to consult lawyer).
2. Opportunity to Present Case
 Chance to file a written reply, produce documents, and lead evidence.
 Reasonable time to prepare; no surprise action.