How to Renew Indian Penal Codes
““If the objective is to accelerate grassroots case resolution, a shift to the inquisitorial model is necessary... This implies... actively engage in evidence preparation, witness questioning, and truth discovery.””
Enacted by the British after the 1857 War of Independence, a recent decision has been taken to overhaul the penal codes in India. Back then, the British had two choices: the adversarial model used in Britain, or the inquisitorial model commonly seen in civil law countries like France and Italy. Here's a summary of the main features of these models:
Adversarial
In this model, representatives from each party present opposing positions, debating and arguing their cases. The Judge’s role is to ensure fairness, equality, and neutrality until the very end. The court remains impartial, acting as a referee between the prosecution and the defense. The underlying principle is to separate the investigation from the final decision-maker.
Inquisitorial
The Judge in this model takes an active role in gathering evidence, questioning witnesses, and seeking the truth. The court is deeply involved with the aim of resolving disputes and achieving justice for individuals and society. The focus is on extensive investigation and examination of evidence to uncover the truth. This system relies less on precedent and allows for independent case-by-case decisions based on relevant laws.
In India, the British established a hybrid system that combined elements of both models. The following is a simplified description of this hybrid model:
Overall, Indian penal codes were rooted in principles from the accusatorial model. Judicial offices maintained their distance from the parties, and opposing sides argued their cases. Judges were not expected to actively participate as in the inquisitorial model.
However, at the district level, executive and judicial powers were combined in executive magistrates, leading to inquisitorial-style practices. These practices included overseeing investigations, appointing prosecutors, and conducting trials. The executive magistrates facilitated effective case management and would often sit with the parties and exchange views for making decisions for speedy disposal of cases.
In one way the executive magistrates belonged to the judiciary, as far as administration of criminal justice was concerned. This blend combined an accusatorial form with inquisitorial practices.
This arrangement changed in the early 1970s when the executive and judiciary were fully separated. Consequently, trial conduct shifted away from the court's control, which affected the focus on expediting cases and ensuring swift justice at the grassroots level.
If the objective is to accelerate grassroots case resolution, a shift to the inquisitorial model is necessary. This shift would involve transforming existing judicial magistrates into prosecuting magistrates, akin to the French system. This implies that judicial magistrates would actively engage in evidence preparation, witness questioning, and truth discovery.
Moreover, by renewing the penal codes in this manner, the system would eliminate the perceived injustice arising from the imbalance where a party with greater resources is better equipped to collect evidence and present a more robust case than the opposing side.
