PROJECT REPORT ON- HOW SHIFT

FROM ADVERSARIAL SYSTEM TO

INQUISITORIAL SYSTEM
CONTRIBUTE TO JUSTICE
DELIVERY SYSTEM IN GLOBALISED
WORLD

SUBMITTED TO: SUBMITTED BY:

Dr. Shalini Marwaha Neha Attri

Dr. Anil Thkur 1226/14

Department of Laws LLM 2nd Semester

PU,Chd
Acknowledgement

Every work is incomplete without acknowledging the efforts of the people who
have directly or indirectly contributed to the same and so as this project.

I would like to express my heartiest gratitude to my prof. Shalini Marwaha for

giving me an opportunity to make this project and providing me guidance for the
same .

I also gratefully acknowledge the constructive suggestion of my peers and also

those known and unknown persons who have directly or indirectly contributed in
helping me prepare this project successfully.

Thank you.
INTRODUCTION

Since the dawn of human civilization, in the whole range of our legal, political and
moral theory, the notion of justice has always occupied a central place. The
concept of justice is of imponderable import and has been the watchdog of all
major social and political reforms movement since time immemorial . All social
thinkers from Plato to Gandhiji and others have been making supreme endless
efforts in quest of justice in order to abolish injustice , tyranny and exploitation .
All their energies whether material , mental or moral have been devoted to the sole
cause of justice1.

States whether ancient or modern , capitalists or socialists , democratic or

authoritarian have been self proclaiming to be guided and governed by the yard
scales of justice and takes pride in being styled as a just state and just law and just
social order . However what is justice is an imponderable problem . Justice is
generally equated with truthfulness , righteousness , goodness , equality , mercy ,
charity etc. and all these expressions being relative and vague have been eulogised
universally as unworthy of emulation and application in the ordering of human
relations . However what constitutes ' justice ' at a particular time and place is not
definite . The standard of reasonableness , truth , and justice has to be measured
necessarily on the basis of such shared values which are common to mankind 2.

JUSTICE - LEGAL MEANING:

The notion of justice is comparatively more ancient than that of law. The latin form
of term justice is justus or justia and it is from the term that the word jus is derived
having varying meanings such as truth, morality, righteousness, equality, fairness,
mercy, impartiality, rightness, law, etc. the expression is again cognate with justum
- meaning what is ordered.

In Roman Law it means right , justice or law . In ancient India law and dharma (
justice ) were not distinct concepts . In Dharmashastras, Smritis and Arthasastra
the concept of justice , law and religion were not distinguished and invariably
justice was equated to dharma and vice versa, likewise in mosaic law of Israel the

1
http://www.justice.gc.ca/eng/rp-pr/other-autre/c45/c45.pdf
2
DHYANI , FUNDAMENTALS O F JUSTICE 129 ( Central Law Agency , 2nd edn..,1997)
idea of justice and law were inextricably interwoven. the classical legal definition
of justice mean rendering everyone his own-summ cuique tribuere3 .

As justice involves manifold ideals and principals its forms are also chaotic such as
legal justice, natural justice, moral justice, social justice, political justice,
democratic justice, totalitarian justice, racial justice, distributive justice,
commulative justice, personal justice and public justice. These divisions are not
exhaustive but merely illustrative and are mentioned only to emphasise the
problem in understanding the nature and content of justice4

The purpose of any criminal justice system is to punish the offender and protect the
innocent. Offenders are the threat to the society. State machinery is operative to
prevent the crime and penalize the offender. But it is a matter of concern for all
that innocent must not suffer in the name of justice. There seem two models in
general, which provides different measures to deal with the offender to bring him
to justice. They may be broadly termed as inquisitorial model and adversary model
of justice. Both justice systems insist upon right adjudication of the accused and
protection of the innocent. But there are basic differences as to rules of procedures
in each of these systems. Each system has been developed in its own historical
setting. Each system has its own advantages and disadvantage. Each system can
serve the purpose of justice if it is aware of the disadvantages relating to it and has
taken measures to minimize it.

There are two models of justice delivery:

1. Adversarial justice

2. Inquisitorial Justice

The terms “adversarial” and “inquisitorial” are used to describe models of justice
systems. In reality these terms have no simple or precise meaning and no one
country’s system can be described as demonstrating the “pure” version of either
model.

3
DHYANI , FUNDAMENTALS O F JUSTICE 133 ( Central Law Agency , 2nd edn..,1997)
4
DHYANI , FUNDAMENTALS O F JUSTICE 134 ( Central Law Agency , 2nd edn..,1997)
It is important to note that over recent years, adversarial models have begun to
incorporate some of the features of inquisitorial systems. Indeed, many of the
reforms in the Criminal Procedure Act 2011do have inquisitorial features to them –
for example, the development of obligatory pre-trial case management processes.
At the same time, inquisitorial models (which have generally been criticised for
being inefficient, overly bureaucratic and placing too little weight on the
presumption of innocence) have undergone significant reforms that call on
elements of adversarial models

I. ADVERSARY MODE OF JUSTICE

Adversary mode of justice is close to Anglo-American system and its past

colonies5. It advocates the supremacy of law, that is, equal treatment of law for all
segments of society. It places the court in the neutral position equivalent to that of
an umpire in a football game. Therefore legal representation from both sides is
indispensable part of this system. It insists upon due process of law. That is strict
observance of criminal procedure by the prosecutor and the police in the course of
investigation and trial. It thinks that if both parties were to act according to the
rules of procedure justice can be secured. The judge looks whether the evidence
collected is in accordance with the law or not. He excludes any evidence, which is
extorted through malpractices, such as, entrapment, deception practiced on the
accused etc. It is expected that exclusion of evidence unfairly obtained leads the
police or the prosecutor to work within the limit of his power. The neutral behavior
of the judge promotes the sense of justice and fairness of the trial. The accused has
right to silence. The police must interfere upon another's affair only if he has
sufficient evidence to do so. He cannot expect any co-operation from the accused
after the arrest. The accused need not co-operate with the police and he can remain
silent in the court throughout the trial. The prosecutor must prove his guilt, ex-part
beyond reasonable doubt. This system claims that it would promote the supremacy
of law, fairness in the proceedings, secures right to privacy of the individual.
Individual can work is their daily life without any fear, interference or undue

5
www.justice.govt.nz
encroachment upon their private life by public officials of the state. This is very
much necessary to promote justice, freedom and progress.

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 justice6. 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.

CHARACTERSTICS OF ADVERSARIAL SYSTEM:

1. In an adversarial model, responsibility for gathering evidence rests with the

parties –police and defence –and an independent evaluation of that evidence by a
neutral judge is left to the trial.

2An adversarial model is based on mistrust in the reliability of the prosecution

evidence. It proceeds on the assumption that mistaken verdicts of guilt can best be
avoided by allowing the defence to test and counter that evidence at the trial itself,
largely in the manner in which it chooses to do so. The trial is the exclusive forum
for seeking out and determining the truth –or, perhaps more accurately, for
determining whether there is a reasonable doubt as to guilt.

6
www.thelawinsider.com
3. Because in an adversarial model decision making is left largely in the hands of
the parties, there is a recognised prosecutorial discretion not to proceed with the
case, even when there is evidence to support a criminal charge. There is also an
ability, recognised in statute,for the defendant to plead guilty and avoid a trial.

4. In an adversarial model all parties determine the witnesses they call and the
nature of the evidence they give, and the opposing party has the right to cross-
examine. The court’s role is confined to overseeing the process by which evidence
is given (to ensure that it is within the rules) and then weighing up that evidence to
determine whether there is a reasonable doubt. There are strict rules to prevent the
admission of evidence that may prejudice or mislead the fact finder.

5. In an adversarial model, the victim is largely relegated to the role of witness.

They have no recognised status in either the pre-trial investigation or the trial itself.

STRENGTHS OF THE ADVERSARY SYSTEM

1.It is likely to test the validity of arguments and discover the truth. Each side is
given equal opportunity to present arguments for their case and to critically
question the arguments of the opposition through the process of witnesses being
examined-in-chief, cross-examined and re-examined. The truth is ultimately
reached because the desire to win the battle will ensure that the truth is brought out
to the court in the end7.

2.Legal representatives have a priority duty to the court. Although they are obliged
to present their client’s case in the best possible light, they cannot mislead the
court by making allegations they know are false or by deliberately failing to
inform the court of a precedent relevant to the case.

3.This system encourages objective consideration of the evidence. The rules of

evidence and procedure represent an honest attempt to minimise human error and
ensure fair consistency. These rules ensure that proceedings are carried out
efficiently, that irrelevant questions are eliminated and that the burden of proof is
placed on the person making the accusation.

7
sdemirova.global2.vic.edu.au
4.This system is accepted by most of the community. It appears to be a fair,
sensible and consistent method of resolving disputes. This system satisfied the
community’s idea of fair play and produces confidence in the decision made and
the legal system.

5. It requires the parties involved to be personally responsible for the preparation

and handling of their case. This ensures that people fulfil the requirement for
individual responsibility. This system also allows for the use of professional
advocates and representatives to ensure the best preparation of the litigants’ case.

WEAKNESSES OF THE ADVERSARY SYSTEM

1.The adversary system is slow which means that too many people are denied
justice for too long because the adversary system tends to lengthen the trial
process. Justice delayed is justice denied!

2.This system is expensive. The adversary nature of our trial system also requires
litigants to have legal representation. The high cost of legal advice and legal
representation can seriously hinder those who cannot afford it. High costs may
prevent some people from enforcing rights they may have or it may force them to
economise on the presentation of their case. As such, the adversary system tends to
favour those who can afford better legal representation. Some parties may be
disadvantaged by not being able to afford legal rep or by hiring lawyers with
inferior courtroom skills. This may mean that vital evidence which needs to be
drawn out by questioning may not be revealed in the trial and as such, the truth
may not always emerge.

3.There is an emphasis on oral evidence. This can mean that witnesses can be
confused by highly skilled lawyers and thus, their evidence may be seen as being
unreliable. Witnesses also need to rely on their memory of events, which often
occurred some time ago because of delays in getting a case to trial. Delays in the
system are a constant problem for those seeking resolution of disputes.

4.In one continuous trial, the amount of information to be absorbed by a judge or

jury can be quite extensive. Jurors can be confused by technicalities associated
with the rules of evidence and with the technical nature of information provided by
expert witnesses. If this information is not understood by jurors, it may not be
given sufficient acknowledgment and consideration

II. INQUISITORIAL SYSTEM:

The inquisitorial system was first developed by the Catholic Church during the
medieval period8. The ecclesiastical courts in thirteenth-century England adopted
the method of adjudication by requiring witnesses and defendants to take an
inquisitorial oath administered by the judge, who then questioned the witnesses. In
an inquisitorial oath, the witness swore to truthfully answer all questions asked of
him or her. The system flourished in England into the sixteenth century, when it
became infamous for its use in the Court of the Star Chamber, a court reserved for
complex, contested cases. Under the reign of King Henry VIII, the power of the
Star Chamber was expanded, and the court used torture to compel the taking of the
inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to
basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system
developed in France and Germany. From there it spread to the rest of continental
Europe and to many African, South American, and Asian countries. The
inquisitorial system is now more widely used than the adversarial system. Some
countries, such as Italy, use a blend of adversarial and inquisitorial elements in
their court system.

It aims to attain justice with the composite effort of theprosecutor, the police, the
defense lawyer and the court. If the purpose of justice is served minor error in the
procedure is ignored. The court can play active role in procuring evidence, in the
investigation of the case and the examination of the witness. The accused must
help to the prosecutor and the court to attain the justice. Since the court itself is
active to secure justice, legal representation from the side of accused is not
regarded indispensable.

The court procedures in an inquisitorial system vary from country to country. Most
inquisitorial systems provide a full review of a case by an appeals court. In civil
trials under either system of justice, the defendant, or respondent, may be required

8
www.justice.govt.nz
to testify. The most striking differences between the two systems can be found in
criminal trials.

In most inquisitorial systems, a criminal defendant does not have to answer

questions about the crime itself but may be required to answer all other questions
at trial. Many of these other questions concern the defendant's history and would
be considered irrelevant and inadmissible in an adversarial system. A trial in an
inquisitorial system may last for months as the presiding judge gathers evidence in
a series of hearings.

FEATURES:

1. In an inquisitorial model, criminal investigation, at least in serious cases, is

typically overseen by either an “independent” prosecutor or an examining
magistrate (in France termed a “juge d’instruction”)9. The prosecutor or examining
magistrate can seek particular evidence; direct lines of inquiry favourable to either
prosecution or defence; interview complainants, witnesses and suspects; and
ultimately determine whether there is sufficient evidence to take a case to trial.

2. An inquisitorial model has faith in the integrity of pre-trial processes (overseen

by the prosecutor or examining magistrate) to distinguish between reliable and
unreliable evidence; to detect flaws in the prosecution case; and to identify
evidence that is favourable to the defence. In many jurisdictions, this culminates in
the preparation of a “dossier” for the trial court that outlines all aspects of the case
and forms the basis for the trial itself. Pre-trial processes are therefore an
indispensable part of the process for seeking out the truth. By the time a case
reaches trial, there is a greater presumption of guilt than in an adversary model.

3. In an inquisitorial model, discretion is much more limited. In some jurisdictions,

“the legality principle”dictates, in theory if not in practice, that prosecution must
take place in all cases in which sufficient evidence exists of the guilt of the subject.
Moreover, there was traditionally no such thing in civil law jurisdictions as a plea
of guilty. Regardless of the accused’s wishes, trial processes continued, albeit on a
sometimes more accelerated path.

9
www.lawcom.govt.nz/sites
4. In an inquisitorial model, the conduct of the trial is largely in the hands of the
court. With the dossier of evidence as its starting point, the trial judge determines
what witnesses to call and the order in which they are to be heard, and assumes the
dominant role in questioning them. Cross examination as we know it does not
exist, although the parties and their counsel are generally permitted to ask
questions. There are far fewer rules of evidence and much more information
available to the court at the outset. The offender’s criminal history, for example,
may be read to the court before the trial begins.

5. In an inquisitorial model, on the other hand, victims have a more recognised

role. In some jurisdictions they have a formal role in the pre-trial investigative
stage, including a recognised right to request particular lines of inquiry or to
participate in interviews by the examining magistrate. At the trial itself, they
generally have independent standing. Although this is partly for the purposes of
claiming compensation, they are sometimes also permitted to ask questions of
witnesses.

ADVANTAGES OF INQUISITORIAL MODE OF JUSTICE:

(a)The court plays substantive role in the trial to secure justice.

(b) The decision rests in the hands of an expert in the area of the crime. There is no
chance of public being swayed by fancy arguments.

(c)All the component of criminal justice system, i.e. the police, the prosecutor, the
defense lawyer, the court and the accused must help to secure justice. So, the
accused has no right to silence.

(d)Any distortion of evidence, dubious practice followed by the accused or by the

lawyers can be easily detected with the effort of the court.
DISADVANTAGES OF INQUISITORIAL MODE OF JUSTICE

(a)Participation of the court in the inquisition of the case may lead it to biased
attitude.

(b)Right to privacy of the accused is denied and that the accused is exposed to
express everything which he need not express keeping in view of the merit of the
case.

(c)The prosecutor or the police having separate law to deal with their conduct may
misuse their power and is likely to exceed their authority, which they are not
entitled to.

(d)Supremacy of law and equal treatment of the law for all segments of the society
is not entertained.

EFFECTS OF TRANSFORMATION OF ADVERSARIAL SYSTEM TO

INQUISITORIAL SYSTEM TO JUSTICE DELIVERY SYSTEM IN
GLOBALISED WORLD:

With the introduction of the globalization in the service sector, the Government has
embarked upon reform in the judicial system of the country to bring it in
conformity with its commitment in international for a without giving much thought
to the requirements of our own population10. Pre requisite of implementation of
Globalization is a Homogeneous society with a common legal system and a
common legal procedure for that purpose.

Justice Malimath Committee was constituted to suggest reforms in the judicial

system. The committee proposed that the adversarial system be switched over to
the inquisitorial system of justice. Right of silence of the accused in court has been
proposed to be curtailed. The change of traditional idea of the proof of guilt has
also been proposed. French procedure has been proposed to be introduced in the
Indian legal system. It is proposed that the Police be given more power. In fact the
proposal was to switch over from the traditional “Justice Model” to “Crime
Control Model” of some of the European countries.

10
http://www.academia.edu/7281834/Transformationfrom_Adversarialto_Inquisitorial_System
Avoiding the law commission and other procedure to amend mother statutes
following Malimath Committee’s report the legislative changes are also being
brought in statutes step by step. Criminal Procedure Code has been amended
giving more power to the police. Plea bargaining and victimology have been
introduced. And in the same way Civil Procedure Code has also been amended,
Arbitration law has also been changed. Amendments in Indian Evidence Act have
also been brought in. It is curious to note that the aforesaid amendments were made
in the name of better justice. Actually purpose behind all these changes is not to
provide justice to the common man but the target is the implementation of the
Intellectual property Right Laws which is an agenda of the multinationals to
enforce product patent for the interest of multinational Companies. In a country of
125 crores of people with the prevailing pro-accused system of justice a total
change of the system is now being brought in through reform agenda of the
Government.

Fast track courts are introduced in the District Judge’s level giving promotions to
the officers of the lower judiciary. Point system for disposal of cases for the judges
was introduced making the first tires of the courts over crowded. At the same time
the evening courts were introduced in some states.

The establishment of Alternate dispute resolution and judicial dispute resolution

system as a part of revised rules of Civil Procedure are very laudable.This will
discourage the malacious and dilatory tactics that some lawyers resort to,just to
harrass or delay the exercise of a right by opposite party.Further the mediation by
the pairing judge before a case proceeds to trial will give the litigating parties a
legal and hopefully an unbiased legal view on the potential outcome of the
case..This will surely cut down the trial period.

With the judge as a active facilitator and face to face trial ,there can be timely
resolutions as there will be greater investigating role of judge and thus judge could
ask the questions and call witnesses and allow the judge to decide the case fairly.
CONCLUSION:

The atmosphere of competition in adversial proceedingd has resulted to

frustration of the litigative model by the public.This only works if the partied do
not know each other and after the case, the litigants will not see each other
anymore. However most of the civil cases involve relationships and the litigants
will have an unhealthy post trial life. The reforms aimed at improving the judicial
process requires the support of litigators. This affects the productive lives of our
countrymen that can be devoted to other relevant persuits,rather than years of
enduring the slow paced litigation process. The social and economic cost of these
delays are undeniable.

The judiciary must always be relied upon as bulwark of our rights.We have ideals
and philosophy on the reforms of judicial system in abundant measure but hardly
any scientifically analysed proposals with the practical outlay.

The need of hour is to identify the shortcomings and remove them to the extent it is
possible.An Ideal Judicial Dispensation Sysem should have following attributes11:

1. Speedy and affordable quality justice.

2. Independent Judiciary.

3. Ethics and honesty in governance.

4. Social relevance, dynamism and pragmatism.

11
ijtr.nic.in/articles/art55.pdf