It is time to rethink the existing legal system

When we were in school, we all had to study a section of the history curriculum called ‘Constitution’. It basically taught us the outline of our country’s system of governance, how the cabinet is formed, what is the Legislative Assembly, what is the Lok Sabha, etc. Personally, I used to study this section very carefully because (then) it was quite scoring. Later, when I entered real life and unfortunately had to fight real life legal battles, I felt that it was much more important than this course to get a basic idea about civil and criminal law. It is okay for ordinary people like us not to know how a minister sits on the throne, but it is absolutely necessary to know what rights I have as a buyer, or how much the police can help or embarrass me. Due to not knowing these, we often feel overly afraid, and we also become victims of many injustices.

Anyway, I am not discussing the curriculum. In our country, a complaint is received in the legal system. The police investigate. The accused is arrested; he is presented in court. Then the lawyers of both sides start fighting the case. If any party is unable to bring a lawyer, then it is the responsibility of the state to assist him by providing him with a lawyer. Again, many cases are directly with the government which are mentioned as ‘The State of West Bengal vs. So and so’. And in all the cases, the judge (or bench of judges) has the job of an impartial referee. They have to give their verdict based on the documents, evidence etc. presented in the court and the statements of the witnesses, the information that comes up in the cross-examination. Even if they understand that the investigating police or agency (or the other party) has not presented any important document, they can at most draw the attention of the police to that. But in the end, they have to give their verdict based on the documents and evidence they have received. That is, they are the referees, they have no control over how the game is played. In legal terms, this system is called the ‘adversarial system’ or the ‘accusatory system’. Everyone can surely guess that like all the other systems in our country, this system is also basically a follower of the British system. Everyone will surely say that this is what it should be, is there any other system besides it?

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Everyone will be surprised to hear that yes, there is an alternative system, and it is not on paper or a utopian idea. In many countries such as those countries in Africa that were never British colonies, Indonesia, Thailand, Latin America, Hong Kong, the rest of East Asia and Continental Europe, that is, the mainland of Europe excluding the islands – this alternative system is used.  The name of this alternative system is the Inquisitorial System. However, this alternative system is applicable only in criminal cases. Before talking about what this system is, let us turn our eyes to the reality of our country.

In addition to this state, assembly elections in Tamil Nadu will be held in 2026. Although it is not the same in other places, in our state, whenever the elections are near, we keep hearing some phrases. For example, we hear ‘double engine government’ For the last fifty years almost, the government in this state has been run by parties that are opposed to the center. So, I do not have a proper idea about living in a state with ‘double engine government’.

This has its upside. Time and again we have seen that if particular decisions, actions or judgements pertaining to any case in a state is not acceptable to its people, demands are raised for a CBI investigation. But where the same party is in power at the center and in the state, the so-called ‘double engine’, to whom will the people go? Will the people not get justice there? Or, perhaps more importantly, where is the escape from a situation where people feel they have not received justice even after investigations by central agencies?

Now let’s return to the other judicial system that exists in many countries in Continental Europe, Latin America, Africa, and Asia. The name of this system is the ‘inquisitorial system’. Many legal experts, however, prefer to call it the ‘non-adversarial system’. Whatever the name, let’s see what this system has to say. Although the system is basically the same, there are minor differences from one country to another. We are choosing the French system for our discussion.

The word inquisitor means one who inquires or investigates. And from this comes another word that many are familiar with, which is ‘inquest’. In this system, if a crime is committed, the investigation will not only be done by the police, it will also be done by the investigating judge. That is, the role of the court will not start after the case reaches the court, but long before that. The person who will investigate on behalf of the court will be called the ‘investigating judge’. These judges are not under the jurisdiction of the Ministry of Law. This investigating judge, like the police, can interrogate witnesses or suspects. They can collect evidence. And they can submit all the statements and information they collect before the court. But this judge cannot participate in the trial process.

Another important point is that a person who is acting as an investigating judge in a case can never be an investigating judge in a case in which the same person is accused in the future. Naturally, this system was not created in a day. There is a long history behind it. This system was first fully adopted in the ‘Holy Roman Empire of the German Nation’, which lasted from 1512 to 1806.

If our country can go to this system, then many positive aspects can come to the fore at once. Since the investigation of crimes is not only in the hands of the police, the possibility of bias is reduced. The possibility of getting justice increases. In that case, even if it is a ‘double engine’ government, there is less fear. And the fear of ‘compromise’ is greatly reduced because the person in the court conducting the investigation is not subordinate to any central or state government.

Needless to say, the inquisitorial system is not applicable to all cases. Even in countries where this system exists, this system is adopted on a case-by-case basis. For example, in 2005, there were one million criminal cases in France, but out of them, this system was needed, that is, the investigating judge of the court was needed in only 33,000 cases.

But everyone understands that cases cannot be judged by such numbers. This type of system is mainly used in some murder and rape cases, sometimes in cases of large-scale money laundering.

Everyone who has experience in litigation knows how the vast legal system of this vast country works. It seems that the time has come to think a lot of things anew and to make many reforms.

The writer is freelance contributor. Views are personal.