Adopt More Active Role

This is the fourth post of the series 'Advice to Young Judges'. It invites them to adopt more active role like King Solomom in deciding disputes.

The Judgement of Solomon - a story from the Hebrew Bible. Picture - Courtesy Wikipedia

Advice to Young Judges

Judges Have Difficult Job।। Act Without - Pressure, Fear, Expectation।। Decide Without Favour।। Adopt More Active Role।। ।। ।।

England was governed by common law i.e. the unwritten legal doctrines embodying English customs and traditions as developed by English courts; this was modified from time to time by statute law. We (through the door of Justice, equity and good conscience) along with other commonwealth countries and the US inherited and follow the same common law tradition. 

Adversarial advocacy is part of common law tradition. Rightly or wrongly, it is not really an enquiry into the truth. It is advocate-led and generally focuses on the advocates, who decide what evidence to call, or not to call, and ask the important questions, while the judge or jury listens to what is called and test it and then adjudicates on what has been heard. Unfortunately, the result is that adversarial system does not always find the truth. This is the reason that often courts acquit the accused saying that the case to be not proven beyond doubt; suggesting that a thing happened but could not be proven according to the courtroom test.     

On the contrary, the inquisitorial system of civil law, followed by other countries of Europe, is judge-led, and generally seeks the ‘truth’:  the judge decides what evidence to hear and asks the most important questions, and then adjudicates. 

The basic work of a judge is to find the truth – and then balance the rights. MC Setalvad in ‘The Common Law in India’ (Pg 45 says),

“In the Hindu and Mahomedan system the judge took an active role in eliciting the truth as in the Continental system. The theory of common law ‘that justice is best achieved by giving each party the fullest opportunity to present his case’ [the adversarial advocacy] was brought into vogue in India by the English.”

Around 100 BC, Manu wrote his code mentioning: 

“As a hunter tracks a wounded beast to its lair by its drops of blood, so let a king track crime to justice by a close search for proof.” 

We should seek the truth and have already partly done so in the form of ‘Public interest litigation’ (PIL). There is need to adopt it further. It is easier said than done but let me illustrate my point with a story from the Bible and how our judges may evolve further.

King Solomon (Sulayman in Arabic) was a king of Israel from 970 to 931 BC.   He was a king of great wisdom; said to be a just and wise ruler.  

One day, two women, living in the same house, came to him with an infant child.  Both of them claimed to be the mother of the child.  One of them claimed that the other woman had exchanged her dead child with her child in the night.  The other denied this and said that the dead child belonged to the other woman.  

After some deliberation, King Solomon called for a sword and said that he could not decide on evidence as to who is the real mother of the child and in order to be fair, the child must be divided into two and each woman be given half.  Upon hearing this, one of them said, 

“O Lord, dividing the child into two will kill him. I don’t want the child, give him to the other woman.”  

The other one said,

'It has been conceded; the child may be given to me or else to be fair, he may be divided'.  

Upon hearing this, King Solomon declared the first woman to be the mother of the child as she was the one, who had shown a mother's compassion.   This was the judgement of Solomon.

Inculcate Solomon's wisdom, his justness. Render Justice rather than becoming a scholar of law; be the court of justice instead of merely a court of law.

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