Adversarial system of justice

INTRODUCTION:-

The legal system practised in India is known as an adversary system. In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process. The fact finder, usually a judge or jury, remains neutral and passive throughout the proceeding.

ROLE OF JUDGES IN AN ADVERSARIAL SYSTEM:-

Judges in an adversarial system are impartial in ensuring the fair play of due process or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision rendering obsolete the judicial process in question—rule of law being illicitly subordinated by rule of man under such discriminating circumstances.

As said by Judge Megan L.A Brown all evidence must be relevant and not hearsay evidence.

Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel.

COMPARISON BETWEEN ADVERSARIAL & INQUISITORIAL:-

The adversarial system often argue that the system is fairer and less prone to abuse than the inquisitional approach, because it allows less room for the state to be biased against the defendant. It also allows most private litigants to settle their disputes in an amicable manner through discovery and pre-trial settlements in which non-contested facts are agreed upon and not dealt with during the trial process.

In addition, adversarial procedure defenders argue that the inquisitorial court systems are overly institutionalized and removed from the average citizen. The common law trial lawyer has ample opportunity to uncover the truth in a laboratory called the courtroom. Most cases that go to trial are carefully prepared through a discovery process that aids in the review of evidence and testimony before it is presented to judge or jury. The lawyers involved have a very good idea of the scope of agreement and disagreement of the issues to present at trial which develops much in the same way as the role of investigative judges. It has also been argued that a trial by a jury of one's peers may be more impartial than any government paid inquisitor and a panel of his peers.

CRITICISM & CRITICS POINT OF VIEW FOR ADVERSARIAL SYSTEM:-

Criticism of the adversary system is that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution.

Critics pose some disturbing questions about the adversary system: Is justice served by a process that is more concerned with resolving controversies than with finding the ultimate truth? Is it possible for people with limited resources to enjoy the same access to legal services as do wealthy people? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception?

CONCLUSION:-

{DEFENDERS POINT OF VIEW AGAINST CRITICISM}

Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. And, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse.

NAMAN SHARMA

STUDENT B.A., LL.B, JAMMU UNIVERSITY