ADVERSARIAL AND INQUISTORIAL CRIMINAL JUSTICE SYSTEM: A COMPAIRTIVE ANALYSIS
Author: Vaibhavi Chaturvedi
Judicial method is the mode by which courts affect the usage and improvement of law. From the point of view of people governed by the legal system, it refers to a group of mechanisms of laws, binding norms, procedure, and institutions within which they will avail the fruits of law. However, across the legal systems of the human race, countries not follow an equivalent model of judicial processes. Different models of criminal justice provide different measures to affect the offender and to provide justice to victims of crime.
II. ADVERSARIAL CRIMINAL JUSTICE SYSTEM
The adversary system is referred as a system which is fundamental to the court system because it is followed by the England, Australia, and within the other British Dominions and colonies including India. It advocates the supremacy of law, that is, identical action of law for all segments of society. During this technique accused is presumed to be innocent and therefore the burden is on the prosecution to prove beyond all reasonable doubt and if there is any doubt, the advantage of doubt goes in favour of accused. The accused also possesses the right to silence and cannot be compelled to reply. This right is guaranteed by Constitution of India within the sort of fundamental right and also a universally recognized right of the accused.
The adversarial system is a system where two parties’ positions are represented before an unbiased judge or a jury who effort to determine the truth behind the case. This technique has many great aspects which makes it the desirable system. In an adversarial system, the police and defence are liable for gathering evidence, and an evaluation of that evidence is completed by an unbiased judge. Judges play a character as a referee at a sporting event and therefore the prosecutor and defence counsel are the athletes. They watch the game and blow the whistle once they see unfair gameplay.
The main disadvantage of this technique is that, most of the procedural safeguards are in favour of the accused. Due to which it is described as a pro-accused system. The succeeding safeguards are given to the accused: the right to remain silent, the right to appeal, the right to legal aid, the right to be free from unwarranted searches and arrest etc. It increases the self-assurance of the people within the legal system because each party is allowed to challenge the evidence of the opposing party and therefore the judge acts as a referee/umpire and not interfere in the investigation of facts by limiting himself to acting as the “judge”. It means he applies the relevant aw to the facts established at the trial.
In an adversarial trial, each party selects evidence it wishes to bring before the Court. Therefore, it is the responsibility of the plaintiff to make sure that the case is presented within the most favourable manner, from his/her point of view. The Court’s only duty is to deliver a good, fair hearing. Thus, the litigants are heavily in need of their lawyers to present their case in the best possible way.
III. INQUISITORIAL CRIMINAL JUSTICE SYSTEM
The inquisitorial model basically relates to Romano Germanic System of Law, it is also referred as civil law system or continental law system. Inquisitorial system emerged in France and other European countries like Germany, New Zealand, Italy and Austria. During this system, a judge contributes to the preparation of evidence along with how the different parties are to present their case at the trial. The judge plays the role of discovering the truth and every evidence that either proves the innocence or guilt of the accused.
In this procedure, the state is involved at two different stages; first, when a prosecutor, who is liable for collecting the facts concerning the disputes submits a dossier to the judge and second, when an impartial and independent judge is actively involved in discovery truth. Thus, the inquisitorial system is established on the presumption that truth can be discovered through an investigative procedure and therefore the state is best equipped to carry out such investigation.
In this system power to examine rests primarily with the judicial police officers (Police/Judiciary). The judicial police are required to collect evidence for and against the accused as pre neutral and objective manner because it is their duty to help the investigation and prosecution in discovering truth. The judge has unlimited power to get and evaluate evidence. It is the judge who calls and examines the evidence and it is the lawyers who are there largely to make sure that the proceedings are fair. The essential idea of inquisitorial proceeding is that the judge himself must investigate a complaint. The judge plays a active role and the court dominates proceedings and actively searches for the truth.
The main feature of this technique is that the accused is presumed to be innocent and it is the responsibility of the judge to determine the truth. The statements of witnesses recorded during investigation are admissible and form the idea for the prosecution case during final trial. The exclusionary rules of evidence hardly exist and at an equivalent time hearsay evidence (rules) is unknown.
The important thing is that before the trial, the judge, the accused and the victim are entitled to participate within the hearing. However, the role of the parties is restricted to suggesting the questions which will be put to the witnesses. It is the judge who puts the questions to the witnesses and there is no cross-examination intrinsically. It means the court exercises an affirmative role, instead of the role of an umpire within the conduct of the prosecution.
The disadvantage of inquisitorial system is that there is lack of chances of fair trial and another thing is that participation of the court within the investigation of the case may cause biased attitude while deciding the case. The country like France, the positions of magistrate and prosecutors are inter-changeable. So, it is likely to cause a fear in the mind of the accused that he might not get a fair trial at the hands of such judge. Right to privacy of the accused is denied and therefore the accused is exposed to precise everything which he need not express keeping in sight of merit of case.
IV. VIEWS OF HIGH COURTS
India has contrary views about this model, the numerous High Courts of India expressed their opinions about this criminal justice system. The goal of both the system is to seek out the truth. But the adversarial system seeks the truth by pitting the parties against one another within the optimism that competition will reveal it, while the inquisitorial system seeks the truth by questioning those most conversant in the events at dispute. The adversarial system places a top rate at the person rights of the accused, while the inquisitorial system places the rights of the accused secondary to the search for truth.
The Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 offer our criminal method a convenient shape-shifting ability. This means that India features a unique method which mixes the best of both worlds.
The Justice Malimath Committee on Reforms of the Criminal Justice System mentioned the merits and demerits of adopting an adversarial process in India. The Committee noted that the advantages of an adversarial system in criminal trials is that the rights of accused are better protected, ensuring a good trial. However, the committee felt that certain inquisitorial elements must be covered within the Indian judicial process to shape it more powerful. As an example, this adversarial system is not geared in the direction of protection of weaker communities, minorities and indigenous people. The adversarial system requires high burden of proof and correspondingly involves a high cost, making justice inaccessible to the poor.
The majority of High Courts give stress on to formulating a few modifications within the present criminal justice system. The former President of India, Dr.R.Venkataraman also made observation about present system:
“The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
The former President of India, Dr.R.Venkataraman rightly acknowledged the disadvantage of our system. It is important that the judge should play active role to seek out the truth, but actually, he concerns only about the proof by means of the evidences which lead before him on that basis, he decides the case. The judge doesn’t have any function in the investigation though he acted neutrally to resolve the case. The Supreme Court has criticized the passive function performed by the judges and emphasized the significance of finding truth in several cases. It is the responsibility of a court not only to try to do justice but also to make sure that justice is being done.
Though there are two models of criminal justice system but there is no watertight compartment to differentiate between them. The basic difference between the two systems lies in their approach to justice or truth of the case. India follows adversarial model to dispose the criminal matters but in reality, India also follows some of the features of inquisitorial model. No model is complete in itself; one or other has few merits as well as demerits. When we think from Indian perspective, we observed that the various committees and various High Courts expressed their views that it is the time to incorporate useful features of inquisitorial model to make a balance to protect the rights of victims of crime and the accused so ultimately it will be useful to achieve the ends of justice.
 INDIA CONST. art.20, cl.3.
 ICCPR. art. 14.
 Prof. Madhav Prasad Acharya, The Adversarial v. Inquisitorial Models of Justice, 01KATHMANDU SCHOOl LJ. 44 (2014).
 8 George H. Dession, “Criminal Law”, Encyclopedia America.
 Sward, Ellen E. 1989. “Values, Ideology, and the Evolution of the Adversary System.” Indiana Law Journal 64.
 The Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs (April 2003).
 Dr. Justice V.S. Malimath Report First pages.doc (mha.gov.in)