Name- Naman Jayprakash Badsiwal

Roll No- 1916

Exams- End-Terms
Semester- Under Graduate I
Subject- Legal Methods and Legal System
Q.1) What role has common law played in shaping the modern Indian Legal System?
Ans.
The Common Law is a body of law derived from judicial decisions known as case laws, rather
than from statutes. The Common Law derived its authority from the universal consent and
practice of the people from time immemorial. This system of jurisprudence initially originated
in England. Common Law is unintelligible until expressed in a judgment. It includes those
rules of law which derive their authority from the statement of principles found in the decisions
of courts. This system of law includes tradition, custom and usage, fundamental principles
and modes of reasoning. It is the embodiment of broad and comprehensive unwritten
principles, which were derived out of natural reasoning and innate sense of justice. The
existing Indian legal system can be said to have a contemporaneous existence i.e., with the
advent of the English in India. During the 1600s when the enterprising English East India
Company forayed into India on the backdrop of trading interests little did the Indian masses or
even their future rulers know that they would shape the very foundation of the modern Indian
Legal System. This transformation happened in various ways but the most relevant of those
developments was the setting up of a new type of judicial system, which was primarily based
on the common law system followed in England. As the East India Company took control of
territories, leased to them by the Mughals for trading purposes, they were anointed the power
to govern all persons belonging to the English government and the company within these
territories governed according to the English common laws by the Crown. After the
company won the battle of Plassey (1757), the Mughal legal system was slowly replaced by
the English legal system. In the seventeenth-century admiralty courts were set up in the three
presidency towns of the British i.e., Bombay, Madras, Calcutta. These courts derived
jurisdiction directly from the company and not the crown to decide civil and criminal matters.
In the eighteenth century through a royal charter Mayors were established, they derived
authority from the crown. This was the first step in the establishment of a uniform legal
system in India. A system of appeals to the Privy Council (a body of advisors to the crown)
from such courts was also initiated. In the late eighteenth century, the mayor’s court was
replaced with a supreme court in the presidency towns. This was the first attempt to create
a separate and independent judicial organ in India, under the direct authority of the
King. The Chief Justice and puisne Judges were appointed by the King. This court had
jurisdiction over civil, criminal, admiralty and ecclesiastical matters and was required to
formulate rules of practice and procedure. Appeals from this court lay to the Privy Council. It
was to be a court of record and was to hold such jurisdiction as the court of Kings Bench had
in England by the common law of England. Local civil and criminal justice was left under a
system known as the “adalat system”. Later by the mid nineteenth century through another act
of the crown i.e., Letter Patents Act of 1862, the High Courts were established in place of the
Supreme Court in each of the presidency towns and were further established in other provinces
as well. These courts exercised the same powers as that of the Supreme Courts and appeals lay
to the Privy Council. The setting up of The Law Commission to review the Indian legal setup
led to the coding of the laws, such as the Indian Penal Code of 1862 regarding criminal matters
was drafted under the stewardship of T.B Macaulay. The Evidence Act of 1872 and The
Contracts Act of 1872 were envisaged by the same commission. Thus, all these
developments lead to the creation of a judicial system, which was predominantly based on the
Common Law system of England. The application of common law has been overarching in
the Indian context; it has been enshrined in the Indian legal system over the space of two
centuries by the English to the point that one can’t allocate an individual identity to Indian
jurisprudence. Thus, it can be said that common law has been applicable here though in a
different format than that of England as the needs and demands of the Indian society were
different from that of the English. It is to be found out that much of the law compiled in codes
we have today were primarily derived from the Common Law principles. The basic statutes
governing civil and criminal justice are the Indian Penal Code, 1860, Indian Evidence Act,
1872, the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908. It has
already been discussed how these laws came into being, one thing can be said about these
legislations is that they have stood the test of time with minimal amendments. Codification
of laws made the law uniform throughout the country and fostered a kind of legal unity in
fundamental laws. The Codes apply uniformly throughout the nation. Another contribution to
Indian legal system by Common Law has been the adversarial system of trial. In this system
the accused is presumed to be innocent and the burden is on the prosecution to prove beyond
reasonable doubt that he is guilty. The accused also enjoys the right to silence and cannot be
compelled to reply. The truth is supposed to emerge from the respective versions of the
facts presented by the prosecution and the defence before a neutral judge. Both the parties
have a right to question their witnesses and the opposing side has a right to test their testimony
by questioning them. 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,
his ultimate duty being to pronounce the judgment regarding the matter. The system of
Precedents derived from the Common Law too has wide application within the Indian legal
system, a precedent in Common Law parlance means a previously decided case which
establishes a rule or principle that may be utilized by the court or a judicial body in
deciding other cases that are similar in facts or issue. Initially the English judges and
barristers presiding and practicing in the Indian courts followed the decisions of the courts in
England, thus slowly the concept of precedents came to be ardently followed within the
Indian courts. This law has been carried forward in the present-day Legal system as in regard
to the judgments of the Supreme Court of India the Indian Constitution provides that “The law
declared by the Supreme Court shall be binding on all courts within the territory of India .”
Hence it can be said unequivocally that Common Law has wide application within the Indian
Legal fold as many of the features of this system have been adopted and further developed
from that of The English Common Law System, even though its application hasn’t been
discussed in entirety and only the major principles derived from it have been discussed. Thus,
it can be said that common law traces back its origins to England and is primarily a method of
administering justice, which has incorporated different aspects of the legal pedagogy and
practice with the help of deliberations of laymen and the learned over the course of time. In the
Indian context the common law initially was applied for the convenience of the English,
so they could govern their territories properly but, as they became the overlords of India
the common law became common for Indians. There developed a symbiotic relationship
between the Indian customary law and the common law which gave birth to the modern day
Indian legal system. Hence, we can say India has an organic law as a consequence of the
common law system.
Q.2) Explain the distinction between ratio and obiter dictum? What is the relevance of
prescriptive ratio in generalization of facts?
Ans.
Ratio decidendi: - It literally means ‘reason for deciding’. In the judicial context, it is the
reason which is cited for arriving at a decision in a case. Such reason is not the law that is
getting attracted in the contemporary case but is the necessary notion which helps the court
arrive at a particular decision. It is this part of the precedent which has to be followed by the
courts in subsequent decisions but not the general observations of the court. There is a dispute
of law involved with respect to the reasoning given by the judgment and not a dispute of fact.
As the facts cannot be similar in other cases, the observations pertinent to the facts made by
the judge cannot be binding in the other cases though the similar laws are attracted. But the
reasons for arriving at a decision are binding. In case there are multiple reasons for deciding in
a manner, all those reasons will be binding in the subsequent cases.
The doctrine of precedent, can be understood by following examples,
In the leading Case of Bridges vs Hawksworth, a customer found some money on the floor of
a shop. The court applied the rule of finder keepers and awarded the possession of money to
the customer instead of the shopkeeper. The ratio decidendi of the case is that finder of the
goods is the keeper.
The ratio decidendi of the famous Donoghue vs Stevenson case was that it originated the
doctrine of privity of contact and held the manufacturer liable to consumer for his
negligence in manufacturing goods which is of such a nature that it is incapable of
intermediate inspection retailer. Thus, the plaintiff was held entitled for damages caused to
her due to decomposed snail
inside the ginger beer which was being sold in opaque bottle.
Descriptive ratio
The descriptive ratio is the rationale or the reason which helped the court to arrive at a decision.
It is the original ratio and is used as an aid in future cases
Prescriptive Ratio
On the other hand, the prescriptive ratio is the way in which the descriptive ratio is used
as a precedent in a future case. No case is totally similar to the facts or the law. Due to this
reason, there arises a problem in the application of the principle as it is laid down in a future
case. Hence, the descriptive ratio is slightly altered by using the level of generality so as to
apply it as a prescriptive ratio. That’s where the generalization of facts come in and assist
the judge in making the decision in the case, they are dealing so that they can connect the
current case to the past one and see if a precedent was set earlier.

Obiter Dictum: - It is defined in the case of Mohandas Issardas v. A.N. Sattanathan as the
opinion expressed by the judge in the court or during pronouncement of judgment which does
not have any importance in the decision. This is not an important constituent to arrive at a
decision but is just used to describe the circumstances. They are the incidental remarks made
by the court while dealing with the actual conflict between parties. In the case of Sarwan Singh
Lamba v. Union of India, the SC observed that in general circumstances, even the obiter
dictum mentioned in a decision of the court is expected to be followed. Moreover, the Supreme
Court’s obiter dictum carries a considerable weightage. But such weightage depends upon the
kind of dictum given by the court. If the dictum is a casual remark by the court, it does have
any effect on the parties or the subsequent cases. In another scenario, certain obiter dicta have
recommendatory or persuasive value but do not bind anyone. Hence, the ratio decidendi is an
important constituent of judgment rather than obiter dicta. Though obiter dicta is not considered
as authoritative and lacks status of law, but it cannot be dismissed as insignificant. It may
help to rationalize the law and also serve to suggest solution to problems not yet decided by
the courts. It receives attention as being an opinion of higher authority.
4 major differences between ratio decidendi and obiter dicta are:
➢ Ratio decidendi may be described as rule of law applied by and acted on by the court,
or the rule which the court regarded as governing the case. An obiter dictum is a
statement made by a judge in course of his judgement which may not be precisely
relevant to the issues before him.
➢ The ratio decidendi has binding authority and is binding on subordinate courts. An
obiter dictum has no such authority. It is a casual expression by the courts which
carries no weight.
➢ According to Goodhart, the rule of law based on material facts are ratio decidendi.
The rule of law based on mere hypothetical facts are obiter dicta.
➢ Ratio decidendi is a rule of law expressly or impliedly treated by the judge as a
necessary step in reaching the conclusion. An obiter dictum is a rule of law stand by
a judge which was neither expressly or impliedly treated by him as a necessary step in
reaching his conclusion.
The distinction between ratio decidendi and obiter dicta can be better understood by the
following example.
In S.R.Bommai vs union of India, the nine judges bench of the supreme court unanimously held
that secularism is one of the basic structure of the constitution of India Justice Swant and
Kuldeep Singh observed that social pluralism is one of the basic structure. While justice
Ramaswamy observed that socialism, social justice and fraternity are included in the basic
structure of the constitution. The observation of the learned judges are obiter dicta as they are
not directly in issue in the instant case. The ratio of the case is that secularism is one of the
basic structure of the constitution of India.
Q.3) Explain different sources of law? Explain the distinction in application of parliament made
laws and court decisions?
Ans.
According to Salmond, there are two main sources of law- formal and material. Formal
sources are those from which law derives its validity and force, that is, the will of the State
which is expressed through statutes and judicial decisions. He sub-divided the material
sources into legal sources and historical sources. Legal sources comprise of legislations,
precedent, custom, agreement and professional opinion. They are authoritative in nature
and origin and are followed by the courts as a matter of right. On the other hand, historical
sources are those which are originally found in an unauthoritative form and are
subsequently admitted and converted into legal principles. For instance, precedents are a
material source of law. However, domestic precedents are legal source whereas foreign
precedents are historical source. While dwelling on the different sources of law we would also
find out the distinction between the parliament made laws and court decisions.
Legislation
The term legislation has been derived from the Latin terms “legis” meaning law and latum
meaning to make. Thus, legislation refers to the making of a law. Salmond defines legislation
as, “Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.” The analytical school of jurisprudence believes the law to be a set of
commands issued by a sovereign authority. This command is what is known as a statute and
the process of making of a statute is known as legislation. The analytical positivists believe
legislation to be the only true source of law and disapprove of judiciary taking up legislative
functions. Furthermore, they do not recognize customs as a valid source of law. On the other
hand, the historical school believes legislation to be the “least creative” source of law. They
believe that legislation only gives a proper form and structure to the customs that have been
developed by the people. Both the views are the two opposite extremes of regarding legislation
as a source of law. While the analytical school regards legislation as the only source of law,
the historical school disregards it as a source of the new law. Salmond has further classified
legislations into supreme and subordinate legislation.
➢ Supreme Legislation- It refers to the laws made through the exercise of the
sovereign power of the State. The power to repeal or amend such laws rest only with
the legislative body which has enacted the laws.
 ➢ Subordinate Legislation- It comes from supreme authority itself and derives its
powers from it too, that’s why it relies on the existence of the supreme authority. Such
laws are in constant supervision of the body which enacts supreme legislations. One of
the kinds of subordinate legislation is delegated legislation, which is quite popular in
the contemporary world.
There are five chief forms of subordinate legislations which are as follows: -
• Colonial: During the era of British colonialism, the British parliament enacted laws
entrusted the East India Company to make laws which were imposed on us to rule
us over.
• Judicial: The judicial legislation is different from the principle of precedent because
this is purely judicial but when it has to make laws to make rules and regulations for
their own procedure its legislative in nature.
• Executive: It has been given the power to administer and implement laws but
sometimes it has to supplement the statutory issues with more detailed regulations
and this comes in the ambit of delegated legislation
• Municipal: The parliament entrusts the municipal authorities to make special laws in
their limited authority and scope of functioning.
• Autonomies: Autonomous bodies like temples and colleges are allowed to make rules
for themselves for its own conduct in the form of bye-laws which are in the end
known as autonomies legislation’s.
Judicial precedents
Judicial precedents are regarded as an important source of law in almost all legal systems
throughout the world, especially, the systems based on common law. Firstly, the judges occupy
a high status-politically as well as socially. Secondly, the nature and the importance of the
issues that they decide upon attach some amount of authority to their decisions. Judicial
precedents can be classified into the following kinds:
➢ Authoritative and Persuasive- An Authoritative judicial precedent which is binding
upon the court. They are considered to be the legal sources of law. On the other hand,
a persuasive precedent is one which is simply taken into consideration while deciding
upon a decision and is not, in any way, binding upon the court to follow. Persuasive
precedents are considered to be historical sources of law.
➢ Absolute and Conditional- Both, absolute and conditional precedents are
authoritative in nature. Absolute authoritative precedents are supposed to be
 followed by the court without question. On the other hand, conditional authoritative
precedents may not be followed in certain special circumstances. The special
circumstances are when the decision is found to be contrary to law and reason. There
are two ways of not following a conditional authoritative precedent- by dissenting or
by overruling. Overruling authoritatively declares the precedent as against law or
reason. Overruling always involves the risk of a certain law being turned into an
uncertain one which the judges must be mindful of. A court of higher jurisdiction can
overrule the decision of a subordinate court whereas a court of equal jurisdiction can
only dissent.
Concept of Stare Decisis
It is a doctrine or policy of following rules or principles laid down in previous judicial
decisions, unless, they contravene the ordinary principles of justice . It is a quite recent
concept since earlier there was no legal reporting of cases and decisions of the courts. In India,
the doctrine of stare decisis is contained in Article 141 of the Constitution of India which
declares the decisions of the Supreme Court as binding upon all courts in India. Under this
rule, if there have been a number of decisions on a particular principle of law which settles
it, it is binding and should be followed by all courts whenever similar issues come up for
judicial deliberation. It must be noted that this rule is not astringent and rigid one. Its
applicability has to be decided on a case-to-case basis. The Supreme Court of India has taken
up a similar view while deciding upon its cases. The doctrine of stare decisis means that courts
look to past, similar issues to guide their decisions. The past decisions are known as precedent.
Precedent is a legal principle or rule that is created by a court decision. This decision becomes
an example, or authority, for judges deciding similar issues later. Stare decisis is the doctrine
that obligates courts to look to precedent when making their decisions. These two principles
allow Indian law to build case-by-case, and make our legal system a common law system.
Customs
Salmond defines custom as an embodiment of principles of justice which have appealed to the
national conscience. Keeton defines customs as rules of human actions which have been
established by continuous usage and have the force of law and are applied by the courts.
According to Carter, “The simplest definition of custom is that it is the uniformity of conduct
of all persons under like circumstances.” Austin, in his disregard for custom as a source of
law, defines them as rules of conduct which are simply observed by the “governe d” in a non-
legal sense. For where the people find any act to be good and beneficial and apt and agreeable
to their nature and disposition, they use and practice it from time to time, and it is by frequent
iteration and multiplication of this act that the custom is made and being used from time to
which memory runneth not to the contrary obtains the force of law. Customs is considered to
be the oldest source of law. In ancient times, there were no codified laws to regulate
society. Instead, there existed customs which comprised of acts which have been done so
repeatedly that they are spontaneously followed by all. The king never made any laws. The
customs made by the people were considered to be the law of the land. With the passage of
time, it was recognized that the customs are vague and uncertain. This issue was resolved
by formal recognition of customs by the sovereign. This is how customs got converted into
law.
Customs are of following kinds:
➢ Legal Custom- Legal customs are those customs which have the full force of law.
Regardless of the parties’ acceptance of the legal custom, it is binding upon them.
These are of two types- general custom and local custom. General customs are
applicable throughout the nation whereas local customs are specific to a particular
locality.
➢ Conventional Custom- It is binding upon the parties to the dispute only if they have
agreed to it earlier on. These are established practices which are agreed to by the
parties in an agreement or contract between them.
A custom must fulfil the following requirements in order to be recognized as a valid custom in
the eyes of law:
• It must be immemorial, that is, it must be in existence since a long period of time.
• It must be reasonable
• It must have been continuously observed
• It must be certain and definite
• Its observance must be compulsory
• It must be general or universal
• It must not be in opposed to public policy or principles of morality
• It must not be in conflict with any statutory law in the country
Professional opinions and Juristic writings
Another source of law is professional opinions and juristic writings. It mainly comprises of
obiter dicta of judges, writings of legal professional and other thinkers and scholars.
Though not a popular source of law, it is quite useful in deciding up on original precedents.
Some have disregarded professional opinions and juristic writings as a source of law and
recognized their role as a supplementary to the other important sources of law.
Comparison between Legislation and Precedent
➢ In precedent, rules and principles are laid down by inductive method. In legislation,
the deductive method is resorted to. The courts take the rules from the statute and
apply it to particular cases.
➢ Legislation has abrogative power also. It not only created law but it can abrogate an
existing law, existing in whatever form- statute, precedent or custom. Precedent is
only constitutive. A judge is bound by the precedent of the higher courts and the
enacted law. If a precedent checks the operation of a rule it is only on the gro und that
it is not law. But, when a rule is established as law, a precedent cannot abrogate it.
Thus, precedents can work successfully only for any legal growth and not for any
legal reform which can be done only by legislation.
➢ Statute law is definite, brief, clear and easily understandable. Therefore, in the form
it is superior to precedent, to know principles and rules one will have to look into the
details of the case. Salmond puts the same thing in the form of an allegory: “Case law
is gold in the mine-a few grains of the precious metals to the tons of useless matter –
while statute law is the coin of the realm ready for immediate use.”
➢ A legislation is general and comprehensive. A precedent has none of those merits.
➢ A statute can make rules for the future cases which may arise, in other words, a statute
can be laid down law beforehand. A Precedent can lay down a rule when a case
comes before it. Thus, its emergence depends on litigation.
➢ The very aim of the legislation is to make law. The main purpose of the precedent is to
interpret and to apply the law.
➢ For the most part, the operation of legislation is perspective though it may be
retrospective also if it so chooses. In certain countries, in some branches of law, there
can be no retrospective legislation. A precedent makes law in the very act of enforcing
and applying it. Thus, its operation is mostly of a retrospective nature. The rules laid
down in the decision operate from the date of the transaction which is the subject-matter
of the dispute. An interpretation gives to a statute operates from the date of the passing
of the statute unless there is some interposing contrary decision.
Legislation is, sometimes, compared with the jurist law, or the legal principle enunciated in
juristic writings, there are a number of points of distinction between the two: firstly, the legal
principle laid down in jurisdiction writings are of a very general and abstract nature while
in the statute they are concrete, precise and specific. Secondly, the statute law possesses a
positive sanction from the sovereign authority of the state whereas there is no sanction
behind the jurist law. However, there is a close relationship between the two, and the statute
law is greatly helped by the jurist law. Sometimes, the latter ushers the formers and the legal
principles enunciated by jurists are embodied in the statute law. In the present age, both are
equally important and one cannot attain its end without the other. The aim of the law is the
protection and progress of the society and the individual. For a planned progress, legislation is
very necessary, thus they both contribute equally to the development of law.
Q.4) What do you mean by plagiarism? Explain the role and functions of footnoting?
Ans. Plagiarism is presenting someone else’s work or ideas as your own, with or without their
consent, by incorporating it into your work without full acknowledgement. All published and
unpublished material, whether in manuscript, printed or electronic form, is covered under this
definition. Plagiarism may be intentional or reckless, or unintentional. Under the regulations
for examinations, intentional or reckless plagiarism is a disciplinary offence. The necessity to
acknowledge others’ work or ideas applies not only to text, but also to o ther media, such as
computer code, illustrations, graphs etc. It applies equally to published text and data drawn
from books and journals, and to unpublished text and data, whether from lectures, theses or
other students’ essays. One must also attribute text, data, or other resources downloaded from
websites.
Forms of plagiarism
Verbatim (word for word) quotation without clear acknowledgement
Quotations must always be identified as such by the use of either quotation marks or
indentation, and with full referencing of the sources cited. It must always be apparent to
the reader which parts are your own independent work and where you have drawn on someone
else’s ideas and language.
Cutting and pasting from the Internet without clear acknowledgement
Information derived from the Internet must be adequately referenced and included in the
bibliography. It is important to evaluate carefully all material found on the Internet, as it is
less likely to have been through the same process of scholarly peer review as published sources.
Paraphrasing
Paraphrasing the work of others by altering a few words and changing their order, or by
closely following the structure of their argument, is plagiarism if you do not give due
acknowledgement to the author whose work you are using. A passing reference to the original
author in your own text may not be enough; you must ensure that you do not create the
misleading impression that the paraphrased wording or the sequence of ideas are entirely your
own. It is better to write a brief summary of the author’s overall argument in your own
words, indicating that you are doing so, than to paraphrase particular sections of his or her
writing. This will ensure you have a genuine grasp of the argument and will avoid the difficulty
of paraphrasing without plagiarising. You must also properly attribute all material you derive
from lectures.
Collusion
This can involve unauthorised collaboration between students, failure to attribute
assistance received, or failure to follow precisely regulations on group work projects. It is your
responsibility to ensure that you are entirely clear about the extent of collaboration permitted,
and which parts of the work must be your own.
Inaccurate citation
It is important to cite correctly, according to the conventions of your discipline. As well as
listing your sources (i.e., in a bibliography), you must indicate, using a footnote or an in -text
reference, where a quoted passage comes from. Additionally, you should not include anything
in your references or bibliography that you have not actually consulted. If you cannot gain
access to a primary source you must make it clear in your citation that your knowledge of the
work has been derived from a secondary text (for example, Bradshaw, D. Title of Book,
discussed in Wilson, E., Title of Book (London, 2004), p. 189).
Failure to acknowledge assistance
You must clearly acknowledge all assistance which has contributed to the production of your
work, such as advice from fellow students, laboratory technicians, and other external sources.
This need not apply to the assistance provided by your tutor or supervisor, or to ordinary
proofreading, but it is necessary to acknowledge other guidance which leads to substantive
changes of content or approach.
Use of material written by professional agencies or other persons
You should neither make use of professional agencies in the production of your work nor
submit material which has been written for you even with the consent of the person who has
written it. It is vital to your intellectual training and development that you should undertake
the research process unaided.
Auto-plagiarism
You must not submit work for assessment that you have already submitted (partially or in
full), either for your current course or for another qualification of this, or any other, university,
unless this is specifically provided for in the special regulations for your course. Where earlier
work by you is citable, i.e., it has already been published; you must reference it clearly.
Identical pieces of work submitted concurrently will also be considered to be auto-plagiarism.

Footnotes are the least intrusive way for an author to provide citations or supplemental
information about a topic. In some cases, footnotes are often used instead of in-text citations
with a bibliography at the end of the paper. Footnotes allow an author to guide his or her reader
to additional information or further study, without disrupting the flow of the sentence.
Another great use of footnotes is to define or explain a word or idea that might require further
explanation to a general audience. A definition or explanation can be provided within the
footnote without any visual or logical disruption in the text.
Q.6) Explain the distinction between Adversarial and Inquisitorial system of adjudication?
Ans. Across the world, there are many different types of the criminal justice system to keep
and maintain order and peace within their area of jurisdiction creating a social code of
conduct, the law. Punishments differ from being a punitive one or a rehabilitative nature. There
are two main justice systems:
➢ Adversarial system
➢ Inquisitorial system
According to Black’s Law Dictionary, “Adversary system is the court system where a judge
decides on a case argued by a prosecutor who is suing the plaintiff and the defence attorney
who defends their plaintiff. A jury has also been used to decide such cases.’’
According to Black’s Law Dictionary, the inquisitorial system is, “proof taking used in civil
law, whereby the judge conducts the trial, determines what questions to ask, and defines the
scope and extent of the inquiry’’.
Distinction between the two are as follows:
➢ The binding force of case laws: In the adversarial system, the earlier decisions by
the higher courts are considered to have a binding effect, but in the inquisitorial
system, the precedents are not given that much importance. The judges or jury give
judgment independently using the relevant statutes, so much importance is given to
the code of law.

➢ Investigation: In the adversarial system, the parties e.g., police and defence have a
responsibility of bringing evidence, whereas in the inquisitorial system the
government officials (PP) collect the pieces of evidence, they themselves can conduct
the investigation or they may request the police to do so. PPs can instruct the police
about the priorities. In some inquisitorial systems, a judge may conduct the
investigation. Oppositely in adversarial system judges do not play any role in the
investigation.

➢ Examining phase: There is nothing like an independent examination in adversarial

system chief and cross-examination is the part of trial only. In inquisitorial systems
interrogation of witnesses and collection of evidence is done by examining judge.
➢ The trial: There is requirement of a counsel representing the state and another acting
on behalf of the defendant before the adjudicator. And the evidence in chief is taken
and witnesses are cross-examined or re-examined. In the inquisitorial system record
of evidence is already done in the examining phase, while there is no cross and re-
examination of witnesses, but witnesses are questioned and challenged.

➢ Role of the trial Judge and counsel: The judge ensures that the due process of law is
followed in the courtroom and gives the decision. The counsel introduces evidence
and question witnesses in the adversarial system. Whereas in the inquisitorial system
the judge (or jury) directs the courtroom, proceedings and interrogate the
witnesses and also evaluate evidence to reach their decision basically becoming the
ring master.
➢ Use of juries: Juries are used in many cases in the adversarial system but in
inquisitorial juries are used in most serious cases.

➢ Rules of evidence: In the adversarial system there is a strong categorization of

admissible and inadmissible evidence and hearsay evidence is more readily
allowed if it is reliable. Rules relating to admissibility are more lenient in the
inquisitorial system. If the judge decides particular evidence as relevant, that is
admitted. In many inquisitorial systems, there is no hearsay rule at all.

➢ Rights of the defendant: In both the systems the defendant has the right to fair trial
and self-incrimination.

➢ Role of the victim: In the adversarial system, the victim is not a party in the trial the
case represents against the defendant on behalf of the state. In the inquisitorial system,
the victim has the status of a party in the trial.

➢ Organization of the court: As the adversarial system is generally followed in common

law countries, courts have general jurisdiction to adjudicate and as the inquisitorial
system is followed in civil law countries, there are special courts to deal with
constitutional law, criminal law, administrative law, commercial law, and civil or
private law.
Analysis of comparison between the two Systems:
If there is nothing more than deciding a matter of guilt of a person, there are various methods
like flipping a coin, which is the simplest one, or any other method in which the result comes
by chance only. Otherwise, an authority can be appointed and left all the things on the
description. But there is a particular set of procedures, choice of methods. In a trial there is
presentation and examination of evidences then the decision is made. Trial is done with the
desire to make accurate decisions within a framework of trial procedure. With this objective,
various countries have different procedures. Most countries that use lawyers and judges in a
trial process can be divided into one of two systems: adversary or inquisitorial. In adve rsary
system judge listens both the councils representing the parties whereas in inquisitorial
system judges play an active role in investigation and examination of the evidences. It is
not easy to say which system gives reliable decisions. Each system has their own critics.
The Adversarial system: In this system, there is a head-to-head combat of two skilled
advocates. They prepare with the intention to convince the judge through persuasive
arguments. If an attorney is more skilled, he can move the case, there is no balance for that.
The prevailing presumption of the adversarial system is that battle between the attorneys will
reveal the truth without any extra participation by the judge.
The inquisitorial system: In this system, judges investigate and raise questions. In France,
there is examining magistrate and chief magistrate. Effectiveness of the process depends on the
ability of the individual judge to be thorough and fair.
Comparison: The fate of the culprit is at risk in the adversarial system because of the
effectiveness and persuasiveness of the councils. In as evidences are presented by advocate so
they can hide unfavourable information, which is misleading in character. It may lead to the
conviction of innocent, more emphasis is given to the rights of the defendant whereas in rights
of the plaintiff is given less emphasis. Inquisitorial system is structured to focus on truth
seeking without risking.
Criticism of Adversarial System:
➢ In this system, the lawyer has the duty to act zealously and faithf ully for his client.
Zealous, faithful advocacy means the obligation to search out all favourable evidence,
to seek, neutralize or supress all unfavourable evidence, and to press the most
favourable interpretation of the law for his client.
➢ Sometimes protection of individual rights and a presumption of innocence and benefit
of doubt leads to the release of a criminal.
 ➢ Evidences are presented by parties, sometimes parties intentionally take too long to
present them.
➢ The decision maker will hear only the evidences which the parties want to present
because evidence gathering and presentation is fully controlled by parties.
➢ Parties may bring fake witnesses to distort the truth.
➢ Rules require advocacy and client loyalty which undermines the search for truth.
➢ The police sometime may not be able to find sufficient evidence against the accused.
He cannot expect any help from the accused. This leads to dropping-out of the case.
Criticism of Inquisitorial System:
➢ Examining magistrate and judge both are having unchecked power to investigate and
adjudicate the case.
➢ When court participates in the interrogation it may lead to a biased attitude.
➢ Privacy of the accused is denied.
➢ Prosecutor and police exceed or misuse their power because both are having separate
law to deal with their conduct.
➢ Parties are not able to call own expert.
If the matter is only to decide a case in favour of either of the parties, it is not a big deal at all
but there is a proper procedure established step by step to reach the common objective which
is a punishment to the offender and relief to the victim and ensure a fair trial. Both the systems
have their own procedure, advantages and disadvantages also. Adversarial an d inquisitorial
both are criticized, the reliability of the judgments is challenged but still, it is prevailing. In
adversarial system accused and state are the parties in a criminal case whereas in the
inquisitorial victim is also a party, I think this f eature of the adversarial system is good. Basic
principles of adversary system like the presumption of innocence and proof of guilt beyond
reasonable doubt is good, because when a person is accused of committing any offence, he is
mere an accused not an offender or criminal, he should have the rights which are denied
in an inquisitorial system. Having own critics and features, both the systems have the same
objective.