CENTRAL UNIVERSITY OF SOUTH BIHAR

PANCHANPUR CAMPUS, GAYA

Project on: ACCUSITORIAL AND INQUISITORIAL SYSTEM OF

JUSTICE

Subject- Criminology and Criminal Justice Administration

(MLLAW1002EO2)

Submitted By: Submitted to:

Shruti Prof.( Dr.) Pawan Mishra
LL.M. Head & Dean
1st Semester School of Law & Governance
CUSB1913131032 CUSB, Gaya
ACKNOWLEDGEMENT
PREFACE
INDEX
ABSTRACT
INTRODUCTION
Concepts

The adversary system means a system arrives at a decision by having each side to a
dispute present its best opinion and then permitting a neutral decision-‐maker to
determine the facts and apply the law in light of the opposing presentations of the two
sides.

An inquisitorial system is a legal system where the court or a part of the court is
actively involved in investigating the facts of the case.1

The adversarial system is based on the opposing sides acting as adversaries who compete to
convince the judge and jury that their version of the facts is the most convincing. The lawyers
are given free choice in terms of which issues are presented, what evidence to adduce in
support of their submissions and what witnesses to call. The judge presides over the trial and
rules on disputed issues of procedure and evidence, asking questions of the witness only to
clarify evidence, and concludes the trial by summing-up the facts for the jury and advising
them of the relevant law. It is not open to the judge in an adversarial system to enquire
beyond the facts and evidence that are presented by the opposing lawyers; his role is largely
passive; he is an impartial referee who advises the jury on matters of law.

This differs dramatically to the role of the judge in an inquisitorial system which is based, as
the name suggests, on an inquiry into the case thus the judge is not limited to hearing the
submissions of the parties but can direct the lawyers to address specific points or to call
particular witnesses. The title of the presiding judge as ‘juge d’instruction’ which translates
as ‘investigating magistrate’ in the French criminal justice system gives in indication of the
role of the judge in directing proceedings. Unlike the adversarial system, the role of the
inquisitorial system is not to determine guilt or innocence of one particular person but to find
the truth. As such, the judge, as investigating magistrate, conducts an inquiry that involves

www.cbl-international.com › docs › csu0714 › the-adversarial-vs-inquisito.

the questioning of witnesses and suspects, the issue of search warrants and an examination of
the evidence with the aim of discovering both incriminating and exculpatory evidence. The
prosecution and defence lawyers will keep a close eye on the judge’s investigation and can
request that he considers specific evidence or takes a particular course of action but the
ultimate responsibility for the line of inquiry remains that of the judge. If, at the conclusion of
the investigation, the judge decides that there is a case against a particular suspect, the matter
will proceed to trial which will take an adversarial format.

An inquisitorial system involves a preliminary investigation conducted by an investigating

magistrate as a means of seeking the truth. It is accepted that the adversarial system does not
do this:

A trial does not involve the pursuit of truth by any means… the judge’s role in that system is
to hold the balance between the contending parties without himself taking part in their
disputations. It is not an inquisitorial role in which he seeks himself to remedy the
deficiencies of the case on either side R v Whithorn2

As the respective lawyers for the Crown and the defendant in an adversarial system have the
freedom to choose what evidence to present to the court, there is a possibility that the truth in
its entirety will not emerge at all. Although the adversarial system does operate within a
system of rules of disclosure, this does not compel both sides to be entirely open with regards
the evidence that they possess; it merely requires that they disclose any information that is
specifically requested by their opponent. Of course, this operates to restrict the emergence of
evidence; if it is not known to exist, it will not be requested. Therefore, in an adversarial
system, if the defence is in possession of negative evidence, they can merely ignore it and
hope that it is not requested by the prosecution (and vice versa).This would not occur in an
inquisitorial system as the investigating magistrate is in charge of an examination of all of the
evidence, although he can be directed towards evidence by the lawyers on both sides but they
do not have the ability to withhold or obscure evidence from him. This approach, then, seems
to be a more effective way of finding the truth in a particular case as there are no restrictions
on the emergence of key evidence thus all the facts and evidence are available for scrutiny.

2
(1983) 152 CLR 657 per Dawson J at 682).
This means that a thorough review of the facts has occurred prior to the commencement of a
trial thus it is thought to be a cost-effective means of dispensing justice as the pre-trial
investigation will reduce the number of contested trials. This can be subject to trenchant
criticism for its erosion of a fundamental principle of criminal justice; the presumption of
innocence. A defendant in an inquisitorial system is only on trial as the investigating
magistrate believes that the evidence suggests that he is guilty. As such, how is it that his
subsequent trial can be said to take place within the context of a presumption of innocence
when all those involved in the process, including the jury, know that the defendant is only
there because the investigating magistrate is convinced of his guilt?

The inquisitorial system appears to be more adept at identifying and investigating the relevant
facts and ensuring that this is all taken into account when deciding to proceed with a trial. As
such, it seems to be a more cost-effective method of conducting a criminal trial. The central
question, however, is whether it dispenses justice. An investigating magistrate may reach an
erroneous conclusion that leads to the wrong individual being tried in circumstances where
his presumption of innocence is eroded. An adversarial system protects against wrongful
convictions by ensuring that the process is slanted in favour of the defendant in the belief that
it is better for ten guilty men to walk free than for one innocent man to be imprisoned.3

2.0 Comparative Analysis

We shall in this section find ways to harness the strengths of both the adversarial procedure
and the inquisitorial procedure, to ensure that the excesses of one of the forms of trial does
not become a clog in the wheel of justice. The system that is envisioned here is one that seeks
to maximize the advantages of the both models while minimizing their weaknesses. Before
proffering the alternatives, a caveat will not be out of place. The focus here is not a
competition between the two models, but a search to ascertain how both can better
compliment themselves to give justice to litigants.

2.1 Adversarial and Inquisitorial Strengths and Weakness

This paper has established the fact that the Inquisitorial system lays more emphasis on truth
finding than the adversarial system.21 While the adversarial system places more importance
on the process than on truth finding. Marvin Zalman argues that: “the hypothesis that the
adversary system places emphasis on form could be a contributing factor to erroneous
3
https://www.lawteacher.net/free-law-essays/criminal-law/adversarial-and-inquisitorial-systems-of-
justice.php last accesed on 19/10/2019
convictions. ”Also, Daniel Givelberargues further that the adversarial model is more of a
constitutional right jurisprudence and has ignored the features of a criminal justice system23 .
All of these can be interpreted to mean that the Inquisitorial system pays attention to a careful
examination of facts to find the truth, also that if offers a better path to accurate assessment of
claims of innocence. The Inquisitorial system will only be comparatively advantageous if it
takes early hold of the process before the investigators seals the defendants fate, and only if
the inquisitor can remain detached and stay neutral and objective. Therefore, in an
inquisitorial proceeding, both the legitimacy of the criminal justice proceedings and the fate
of the defendant depend on the visible commitment of a non-partisan truth finding.24 Hence,
the inquisitorial system is only superior to the extent that the judge can second-guess the
submission of both parties and see facts from multiple dimensions. Though this is a tall order,
the inquisitorial model still makes an allowance for it. However, in our sharply divided
adversarial system no such allowance is provided for. Our adversarial system is rather deep
and pervasive and it is characterized with competition that breeds a competitive spirit
between the both parties. 25 The conviction mentality among prosecutors propels them to
secure the conviction of the defendant over achieving justice and fairness. 26 In contrast to
this is the German Inquisitorial model, the majority of the German prosecutors do not regard
convictions as victories and acquittals as losses. Hence, there is no

motivation to hide exonerating facts or to secure conviction by all means. The pressure to
convict is not felt. Therefore, it is envisioned that a system of criminal justice administration
that the rate of conviction by prosecutors will not be a yardstick to determine their efficiency.
Prosecutors need not be due for promotion because they have turn in more conviction but
they should rather be encouraged to see that justice is served in every case irrespective of the
fact that the defendant is discharged or convicted. Effectual justice will be served by
prosecutors playing the role of truth seeking agency and this includes both the prosecutors
and defense attorneys. Thereby, committing themselves to the search for the truth with
insights from the both perspectives as against the win at all cost syndrome as practiced in our
adversarial system27 . This arrangement would be in such a way that bridges the polarizing
forces of prosecuting and defence counsel. Lawyers on the both sides will no longer see
criminal trials as a win-loose situation but a win-win situation. It will ensure that these
advocates see the human face of both the victim and the accused thereby ensuring that they
show sympathy in whatever they do, 28 the defendant on his part will have to waive the
conflict of interest, intrinsic in lawyers/Client relationship, they will also have to waive some
privileges and confidentiality. This is so because everybody is expected to make a full
disclosure of what he knows to enable the court get to the justice of the case. There is no
longer the practice of parties holding their cards until trial to spring surprising on the other
side. Witnesses would be interviewed jointly to forestall coaching or manipulation by both
sides. This is the practice in some continental states. In Switzerland for instance, almost all
witnesses, experts and other evidence are first heard by the prosecutor or the police with the
defendant and his counsel being present during the pre-trial investigation29 . Therefore in
Switzerland, ‘preparing’ witness and experts before the hearing of the case is disallowed and
there are no ‘witnesses for the defence’ or ‘witness for the prosecution’ but just members of
the public who contribute in assisting the court to find the truth. 30Thus the presentation of
evidence before the court will be presented bereft of any influence or prejudice but objective
presentation by witnesses who have no vested interest in the case before the court, but whose
sole aim is to assist the court in ensuring that justice is served. They view this responsibility
as a civil responsibility to their country. The witnesses are more inclined to say the truth
because they are viewed as detached from the case before the court, as against the witnesses
that are called by the litigants before the court whose sole aim for coming to give evidence is
to assist the party that called them to get judgment in the case before the court.4

Sentencing

In the inquisitorial system, particularly in the French legal system, the victim or his/her
counsel have the liberty to contribute to the issue of sentencing after the defendant must have
been convicted by suggesting to the court the size of sentencing that he feels that should be
granted to the defendant that will be commensurate the harm that he went through as a result
of the crime wrought by the defendant. In the adversarial system, by contrast, a victim does
not have the permission to comment on the matter of sentencing either in the court during
trial or during investigation. The defence and prosecution makes their opinion known to the
court turning the phase of trial before conviction, but once the defendant have been
convicted. The issue of sentencing is the exclusive responsibility which remains the sole
prerogative of the court Critics of this practice in the adversarial system have opined that the
count cannot fully evaluate the weight of the defendants conduct without giving the victim

4
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3077365
the opportunity to comment on how he has been burdened by the crime and which
punishment to the defendant will serve as sufficient compensation. They stressed further that
the effect of the crime on the victim is a legally relevant consideration in sentencing practice.
If a sentence is expected to serve as a measure of the proportionality of the impact of the
crime, then an investigation of the proportionality of the impact of the crime ought to be
placed into consideration in giving sentencing, and only those affected by the wrong can
completely shed light on the seriousness of the wrong. But because the adversarial system
does not give opportunity to the parties, especially the victim to comment on the issue of
sentencing, they are not properly informed on the right sentencing that could assuage the pain
of the victim.5

Introduction: India and the Adversarial System:

For the process of criminal justice, the Criminal Procedure Code1 prescribes to the
adversarial system based on accusatorial method. The responsibility for the production of
evidence is placed on the party that seeks to establish guilt with the judge acting as a neutral
referee between the opposing parties, both of which are allowed to introduce evidence and
crossexamine witnesses. By contrast, in an inquisitorial trial system responsibility for the
production of evidence at trial is the job of the trial judge and it is the trial judge who decides
upon the relevance and preference of probable witnesses and permissions to both parties to
ask questions to the witnesses. This system of criminal trial assumes that the state, on one

5
https://poseidon01.ssrn.com/delivery.php?
hand, by using its investigative agencies and government counsels will prosecute the
wrongdoer who will have equal opportunity also take recourse to challenge and counter the
evidences of the prosecution.2 However, India’s criminal justice system is not strictly
adversarial. Some provisions in the Criminal Procedure Code discount the adherence of the
adversarial trial system in the interest of justice. Inquisitorial elements:

While the adversarial system requires the magistrate to remain an observer of the trial, it does
not absolve him of his duty to provide assistance to the process of the trial. At stages within
the decision making process, the Magistrate assists the case towards justice, some notable
examples of which are as follows:

 Sections 228 and 240 of the Code suggest that charge against the accused is to be framed
by the Court and not the Prosecution. This allows the court to refine the prosecution’s
accusations and only judge issues that have prima facie merit.

 Section 311 empowers the court to examine any person as a witness though such person
has not been called by any party as a witness (Similar power is also given to the court under
Section 165 of the Indian Evidence Act, 1872).

 Section 313 allows the court to examine the accused at any time to get an explanation
regarding the trial.

 Section 321 prohibits the prosecutor from withdrawing the case without the consent of the
Court.

It can therefore be deduced that India’s criminal justice is adversarial in nature for it does not
make it the duty of the judge to guide the investigative process actively at all stages of the
trial. However, India’s adoption of inquisitorial elements provides some safeguards against
the systemic problems of passive adjudication. The convergence of criminal justice systems
might be a natural process and the prediction of further synthesis of the adversarial and
inquisitorial systems in criminal justice processes has been made. Prof. Abraham S. Goldstein
states

“It is becoming increasingly apparent to criminal justice scholars that single theory models of
criminal procedure – whether termed inquisitorial or adversarial – are being stretched beyond
their capacity by the phenomena they are designed to control. Virtually everywhere, formal
systems of charge and adjudication cannot possibly be enforced in accordance with the
premises underlying them. There are simply too many offenses, too many offenders and too
few resources to deal with them all. One result has been a steady movement towards a
convergence of legal systems – towards borrowing from others those institutions and
practices that offer some home of relief”.

Further proof of Goldstein’s conviction is found in Prof. Ujjwal Kumar Singh’s analysis of
the the elements of a converging legal system in India using the Malimath Committee, the
evolving attitude of the trial courts in India and the Prevention of Terrorism Act as evidence.

Understanding Criminal Justice Processes:

Adversarial system:

India inherited the adversarial system from its colonial masters, the British. In the adversarial
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 aim of the Criminal Justice System is to punish the guilty
and protect the innocent. The truth is supposed to emerge from the respective versions of the
facts presented by the prosecution and the defence before a neutral judge. 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. It is the parties that determine the scope
of dispute and decide largely, autonomously and in a selective manner on the evidence that
they decide to present to the court. The trial is oral, continuous and confrontational. The
parties use cross-examination of witnesses to undermine the opposing case and to discover
information the other side has not brought out.

Inquisitorial system:

In the inquisitorial system, power to investigate offences rests primarily with the judicial
police officers (Police/ Judiciare). In France’s judicial system, they investigate and draw the
documents on the basis of their investigation. The Judicial police officer has to notify in
writing of every offence which he has taken notice of and submit the dossier prepared after
investigation, to the concerned prosecutor. If the prosecutor finds that no case is made out, he
can close the case. If, however he feels that further investigation is called for, he can instruct
the judicial police to undertake further investigation. The judicial police are required to gather
evidence for and against the accused in a neutral and objective manner as it is their duty to
assist the investigation and the prosecution in discovering truth. If the prosecutor feels that
the case involves serious offences or offences of complex nature or politically sensitive
matters, he can move the judge of instructions to take over the responsibility of supervising
the investigation of such cases.

In all inquisitorial systems, to enable the Judge of instructions to properly investigate the
case, he is empowered to issue warrants, direct search, arrest the accused and examine
witnesses. The accused has the right to be heard and to engage a counsel in the investigation
proceedings before the judge of instructions and to make suggestions in regard to proper
investigation of the case. It is the duty of the judge of instructions to collect evidence for and
against the accused, prepare a dossier and then forward it to the trial judge. The accused is
presumed to be innocent and it is the responsibility of the judge to discover the truth. The
statements of witnesses recorded during investigation by the judge of instructions are
admissible and form the basis for the prosecution case during final trial. Before the trial judge
the accused and the victim are entitled to participate in the hearing. However the role of the
parties is restricted to suggesting the questions that may be put to the witnesses. It is the
Judge who puts the questions to the witnesses and there is no cross-examination as such.
Evidence regarding character and antecedents of the accused such as previous conduct or
convictions are relevant for proving the guilt or innocence of the accused.

For serious and complex offences the investigation is done under the supervision of an
independent judicial officer (In France for example, the Judge of Instructions) who for the
purpose of discovering truth collects evidence for and against the accused.

In the inquisitorial system the Judge of instructions combines to some extent the roles of the
investigator and the Judge. The defence has only a limited right of suggesting questions to the
Judge. It is left to the discretion of the Judge whether to accept the suggestions or not.
Therefore, a biased evaluation of the evidence from the defence is restricted through the
judge’s discretion.

In addition, individual inquisitorial systems incorporate some unique features:

France

The positions of Magistrates and Prosecutors are interchangeable. A person appointed as a

Magistrate for one term may be appointed as a Prosecutor for the next term. It is by common
selection that Prosecutors and Magistrates are selected and are subjected to a common
training programme.

Germany
 Germany, like many countries which have Inquisitorial model have inscribed in their
Parliamentary Acts a duty to find the truth in the case. Section 139 of the Majna Charta states
that a breach of the duty of the judge to actively discover the truth amounts to a procedural
error which is a valid ground for appeal. This creates a greater opportunity for participants of
the criminal justice system, especially the convicted to point out procedural faults in the trial
and the ignorance of obvious considerations of evidence or the wilful neglect of issues related
to the trial. This also has the overall effect of holding the judges to a greater level of
accountability in the process of ensuring effective justice.

Adversarial system - Preliminary concerns:

The Adversarial system puts magistrates in a duty bound position to subject themselves to
the faults of the two parties that present arguments from both sides. Parts of the trial,
including the presentation and questioning of witnesses depend upon the projection of their
relevance by counsels. As pointed out by the Malimath Committee5 , it has not been
entrusted with a positive duty to discover truth as in the Inquisitorial System. When the
investigation is ineffective, Judges seldom take any initiative to remedy the situation. The
adversarial system also requires a greater degree of proof for the conviction of the accused.
This is an element missing from inquisitorial systems, where judges have a greater flexibility
in deciding upon the guilt of the accused.

A strong dissident to the adversarial system Dr. R.Venkataraman, former President of India
also held the adversarial system opposite in spirit to our ancient ethos of justice. He stated:

“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 Supreme Court’s criticism of adversarial by-products:

The apex court has criticized the non-dynamic nature of adversarial adjudication on many
occasions. In Ram Chandra vs. State of Haryana,6 the Supreme Court opined: “[...] there is an
unfortunate tendency for a Judge presiding over a trial to assume the role of referee or umpire
6
AIR 1981 SC 1036
and to allow the trial to develop into a contest between the prosecution and the defence with
the inevitable distortion flowing from combative and competitive elements entering the trial
procedure.” 7
In State of Rajasthan vs. Ani Alias Hanif8 the Ram Chandra opinion was
affirmed as an important consideration to be taken into account in assessing the role of the
court in criminal trials. Also, in Mohanlal vs. Union of India, which raised the issue of the
prosecutor’s negligence in bringing the best available evidence to the notice of the court, the
Supreme Court observed as follows: It is a cardinal rule in the law of evidence that the best
available evidence should be brought before the Court to prove a fact or the points in issue.
But it is left either for the prosecution or for the defence to establish its respective case by
adducing the best available evidence and the Court is not empowered under the provisions of
the Code to compel either the prosecution or the defence to examine any particular witness or
witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which
could be produced and which, if produced, be unfavourable to the party withholding such
evidence, the court can draw a presumption under illustration (g) to Section 114 of the
Evidence Act. In such a situation a question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere umpire at a contest between two
parties and declare at the end of the combat who has won and who has lost or is there not any
legal duty of his own, independent of the parties, to take an active role in the proceedings in
finding the truth and administering justice? It is a well accepted and settled principle that a
Court must discharge its statutory functions-whether discretionary or obligatory-according to
law in dispensing justice because it is the duty of a Court not only to do justice but also to
ensure that justice is being done.

The Malimath Committee however notes that:

“The Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often
becomes a casualty. Failure to ascertain truth may be on account of errors or omissions on the
part of the investigation agency, the prosecution or the faulty attitude of the parties, the
witnesses or inadequacies in the principles and laws regulating the system. There is no
provision in the Code which expressly imposes a duty on the court to search for truth. It is a
general feeling that it is falsehood that often succeeds in courts.”

Justice Malimath Committee Report on the adversarial system: The Committee on Reforms
of the Criminal Justice System (Popularly referred to as the Malimath Committee) submitted
7
Ibid
8
(1997)6SCC162
its report in April 2003. It was constituted by the Ministry of Home Affairs of the
Government of India in November 2000 and headed by former Chief Justice of Kerala and
Karnataka, and former member of the National Human Rights Commission (NHRC), Justice
V.S. Malimath. The two-volume report, over 600 pages in length contained 158
recommendations for ‘reforming’ the Criminal Justice System (CJS). The Committee has
given its anxious consideration to the question as to whether this system is satisfactory or
whether we should consider recommending any other system. The Committee examined in
particular the inquisitorial system followed in France, Germany and other Continental
countries. The Committee concluded in relation to the type of criminal justice system ideal
for India that a fair trial and in particular, fairness to the accused, are better protected in the
adversarial system. However, the Committee felt that some of the good features of the
Inquisitorial System can be adopted to strengthen the Adversarial System and to make it more
effective. This includes the duty of the Court to search for truth, to assign a proactive role to
the judges, to give directions to the investigating officers and prosecution agencies in the
matter of investigation and leading evidence with the object of seeking the truth and focusing
on justice to victims.

The Committee made the following recommendations for amendments to the Criminal
Procedure Code: Preamble: […] "Whereas quest for truth shall be the foundation of the
criminal justice system, "Whereas it shall be the duty of every functionary of the criminal
justice system and everyone associated with it in the administration of justice, to actively
pursue the quest for truth. It is enacted as follows:" (2) A provision on the following lines be
made and placed immediately above section 311 of the Code: "Quest for truth shall be the
fundamental duty of every court." (3) Section 311 of the Code be substituted on the following
lines: "Any Court shall at any stage of any inquiry, trial or other proceeding under the Code,
summon any person as a witness or examine any person in attendance though not summoned
as a witness or recall and re-examine any person already examined as it appears necessary for
discovering truth in the case." (4) Provision similar to Section 255 of the Code relating to
summons trial procedure be made in respect of trial by warrant and sessions procedures,
empowering such court to take into consideration, the evidence received under Section 311
(new) of the Code in addition to the evidence produced by the prosecution. (5) Section 482 of
the Code be substituted by a provision on the following lines: "Every Court shall have
inherent powers to make such orders as may be necessary to discover truth or to give effect to
any order under this Code or to prevent abuse of the process of court or otherwise to secure
the ends of justice." (6) A provision on the following lines be added immediately below
Section 311 of the Code: Power to issue directions regarding investigation "Any court shall,
at any stage of inquiry or trial under this Code, have such power to issue directions to the
investigating officer to make further investigation or to direct the Supervisory Officer to take
appropriate action for proper or adequate investigation so as to assist the Court in search for
truth." The effect of these changes would have been a shift towards the inquisitorial system
with judges duty bound to be dynamic in their approach towards effective investigation and
the objective of justice. However, these changes alone did not make India a strict observer to
the adversarial doctrine as many elements of the system, such as the merging of judge and
prosecutor roles, or the flexible approach to determine guilt. This provides a good example
for Prof. Goldstein’s statement about the convergence of criminal justice doctrines. The
committee was critical of the adversarial system and attributed many of India’s judicial
failings to the system. “Over the years taking advantage of several lacunae in the adversarial
system large number of criminals are escaping convictions. This has seriously eroded the
confidence of the people in the efficacy of the System. Therefore it is necessary to examine
how to plug the escape routes and to block the possible new ones.” 9 The committee laid
emphasis on the quest for truth as it believed that the placing of a lofty ideal to achieve would
stir the judiciary into proactiveness. “It is of seminal importance to inject vitality into our
system if we have to regain the lost confidence of the people. Concern for and duty to seek
truth should not become the limited concern of the courts. It should become the paramount
duty of everyone toassist the court in its quest for truth. It is the duty of a Courtnot only to do
justice but also to ensure that justice is being done.” Problems external to adversarial by-
products: India’s criminal justice system has many very obvious systemic problems that do
not arise out of the adversarial system, and may or may not be well tackled by the adversarial
system. As has been reported by numerous human rights organizations, the Indian criminal
justice systems suffers from discrimination of certain sections of society, old-fashioned and
inefficient institutions, lack of human and technical resources, lack of investigation expertise,
a confession oriented approach to interrogation, lack of punitive action against abusers of
human rights, and a level of corruption. Lack of resources: The Indian criminal justice system
suffers from serious under-funding and understaffing, and continues to be extremely slow.
There is a need for training of all judicial personnel and court administrators beyond what is

9
Ministry of Home Affairs. Committee on Reforms of Criminal Justice System. Government of India, Mar. 2003.
Web. (Justice Malimath Committee Report)
being provided10 With no significant increase in restructuring or funding efforts in the last
decades, the pendency of cases and the ratio of decided to appealed cases highlight these
concerns. Torture: Torture is endemic in India and this is a fact acknowledged by the
authorities and widely documented. Police forces are poorly trained on investigation methods
and on the absolute prohibition of torture and cruel, inhuman or degrading treatment. Most
cases of torture by state officials occur in police custody, and it is widely acknowledged by
governmental and non-governmental studies that the police operate in a system facilitating
the use of torture and ill-treatment. Corruption within the police equally provides a ground
for the practice of extortion and threats. The introduction of the inquisitorial system might be
able to solve this problem. In line with the Supreme Court’s observance of the common
nature of police torture in India, which was brought to fore by Kartar Singh’s case 11, where
the Surpeme Court opined that: “It is heart-rending to note that day in and day out we come
across with the news of blood-curdling incidents of police brutality and atrocities, alleged to
have been committed, in utter disregard and in all breaches of humanitarian law and universal
human rights as well as in total negation of the constitutional guarantees and human
decency.” With the apex Court taking such opinion, and also allowing various investigations
to be launched specifically into police torture in response to PILs, this attitude could have
trickled down effectively to the entire judiciary, and the state machinery could be held more
accountable for human rights abuse. Corruption and discrimination: Lastly, there exist many
accounts of corruption throughout the criminal justice system, especially at the lowest levels,
and this contributes to a spreading of torture practices, to more discrimination, and to
miscarriages of justice. An inquisitorial system, by allowing the judge to have more power,
could also contribute to the judge simply getting more power for abuse, hence solving one
problem to create the other.

A problem-solution mismatch:

The International Commission of Jurists, a widely respected international organisation known

for its study of domestic legislation around the world on standards of good governance and
human rights, objected to the Justice Malimath Committee’s understanding of the difference
between the adversarial and inquisitorial system. “The ICJ is concerned that the proposal
does not fully adopt the inquisitorial system, but wants to introduce some elements of it into
10
National Human Rights Commission of India, Annual Report 2000-2001, paras 3.62 et seq (available at
http://nhrc.nic.in/); Concluding observations of the Human Rights Committee: India, 4 August 1997,
CCPR/C/79/Add.81, para 27; Amnesty International, Annual Report 2002 (India) and Annual Report 2003
(India).
11
Kartar Singh vs. State of Punjab, 1994 SCC (3) 569
the Indian system, without regard to the overall compatibility with the system.” The
commission also noted that countries with the inquisitorial system had a better human rights
record and legislation than India and rights were further protected through the European
Convention on Human Rights, which was an actionable and effective legislation for checking
any abuse of the inquisitorial process in countries such as Germany and France. Also, the
Committee’s observation that the inquisitorial system is more effective as it ensures a greater
rate of conviction was criticized for such a conclusion threatens the protection of human
rights, as it subscribes to the belief that an efficient criminal justice system is one with greater
number of convictions. The committee recommended the following: “The first assumption is
that the adversarial system is at the root of the malfunctioning and distrust. However, not
only is it very doubtful whether the conviction rate is in any way linked to the inquisitorial
system, but above all, it is not the rationale of the inquisitorial system to convict the greatest
possible number of accused. Rather, the role of the magistrate in this system is not to be
above all “effective”, but mainly to conduct a fair trial, to examine all evidence for and
against the accused, and to protect the accused from arbitrariness. […] Also, the shift to an
inquisitorial system carries with it an increase in the competences and powers of the court,
which has the duty to order further investigations on its own motion if it is not satisfied with
the result of the investigations. The Indian law-maker must be aware of the implications of
such a shift towards a court-controlled system, and build into a new system the safeguards
necessary to such a system.” An empirical sample comparison of the two systems:

An empirical social experiment by Allan Lind, John Thibaut and Laurens Waulker in 1975
studied the effect of adversary and inquisitorial processes on bias, from a cross cultural frame
of reference. Multiple mock trials were held with the same facts, circumstances, and bias
amongst participants in both the US and France using both systems, as cross-cultural points
of reference. The dissatisfaction of participants (the accused) from the system that he was not
experienced with was discounted from the evaluation of the efficiency of both systems.
Through a detailed empirical analysis of about 50 such cases, the researchers came to the
conclusion that the inquisitorial system had a greater scope for allowing bias than the
adversary system, thus affirming Prof. Lon Fuller’s and other American academicians faith in
the fairness of the adversarial system. The study, published in detail in the Virginia Law
Review gives an important point of reference for determining the importance of the type of
criminal justice system in ensuring justice to all participants. The study however also stated
that a similar effect of eliminating artificial bias is observed in the inquisitorial system, but
the effect is too marginal to be considered statistically relevant.12

BeJs v. Brady13

“In the light of this common law practice, it is evident that the constitutional
provisions to the effect that a defendant should be ‘allowed’ counsel or should have
a right ‘to be heard by himself and his counsel’, or that he might be heard by ‘either
or both’, at his election, were intended to do away with the rules which denied
representation, in whole or in part, by counsel in criminal prosecutions, but were not
aimed to compel the state to provide counsel for a defendant.”

Powell v. Alabama14

“In a capital case, where the defendant is unable to employ counsel, and is
incapable adequately of making his own defense because of ignorance, feeble-‐
mindedness, illiteracy, or the like, it is the duty of the court, whether requested or
not, to assign counsel for him as a necessary requisite of due process of law.

Gideon v. Wainwright15

“In our adversary system of criminal justice, any person haled into court, who is too
poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for
him. This seems to us to be an obvious truth.”

Argersinger v. Hamlin
The state was required to provide counsel in any case in which the defendant might
be given an active sentence.

12
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2147385
13
316 U.S. 455, (1942)
14
287 U.S. 45(1932)
15
1963
Alabama v. Shelton

The defendant faced a suspended sentence of two years, which could have
resulted in incarceration if activated. The Court held that the state was required to
provide counsel in such cases.16
EviJs v. Lucey (1985)

“The very premise of our adversary system of criminal justice is that partisan advocacy on
both sides of a case will best promote the ultimate objective that the guilty be convicted and
the innocent go free.”

The Oxford Dictionary defines the word ‘adversary’ as ‘one’s opponent in a contest, conflict,
or dispute’. That definition goes some way to explaining the adversarial legal system in the
England and Wales under which, essentially, representatives from each party take opposing
positions to debate and argue their case, whilst the Judge's role is to uphold principles of
fairness and equality and to remain neutral until the very end when he gives judgment. This
contrasts with the inquisitorial legal system (commonly found in civil law countries e.g.
France / Italy) which sees the Judge take a much more active role in preparing evidence,
questioning witnesses and finding the truth.

In an adversarial legal system, previous decisions made by higher Courts form a precedent
which will bind the lower Courts. In contrast, Judges in an inquisitorial legal system tend to
be free to make decisions on a case-by-case basis.

The principle behind the adversarial legal system is to place distance between the
investigation taking place and the person who ultimately decides the outcome. The system
empowers the parties to the dispute to take control of their own case on the basis that they (as
opposed to a judge) are better placed to present their best case.

However, even though an English Judge may not decide what matters to investigate and how
to do so, his role is by no means passive. Under the Civil Procedure Rules ("CPR") which
came into force in 1999, the Court has very wide case management powers which are used to
16

www.cbl-international.com › docs › csu0714 › the-adversarial-vs-inquisito

ensure that the dispute is resolved efficiently and in accordance with the CPR’s overriding
objective of enabling the Court to deal with cases justly and at a proportionate cost. The
Court will do so by excluding superfluous evidence, managing the parties' costs, and setting a
strict timetable to Trial under threat of sanction should any of the dates be missed.

There is, however, a perceived unfairness in the adversarial legal system in situations where
the parties do not have 'equality of arms'; a better resourced party may be more able to gather
evidence and present a stronger case to the Judge than their opposition. Furthermore, because
the parties have near complete conduct of the case from start to judgment, they are able to
choose what evidence they put before the Court. In comparison, in an inquisitorial system the
Judge is involved throughout the process and actually steers the collation and preparation of
evidence. He is therefore able to decide what evidence is admitted by both parties, before
questioning the witnesses himself and going on to make an informed decision on the
outcome.

That said, given the importance placed on the investigative role of an inquisitorial Judge, the
risk of bias is (arguably) greater in an inquisitorial system. 17

17
https://www.ashfords.co.uk/news-and-media/general/differences-between-an-adversarial-and-an-
inquisitorial-legal-system
Conclusion:

The Indian criminal justice system’s systemic faults are not all mitigated by the application
of the inquisitorial system in India. Further, it gives opportunity for more abuse for problems
like corruption and discrimination in the Indian judiciary. However, the project has
adequately assessed the role of magistrates in the adversarial and inquisitorial criminal justice
systems, specifically taking India, France and Germany as examples. The Indian justice
system must be infused with dynamism in its style of adjudication in line with the Malimath
Committee report, but before a complete submission to the inquisitorial system the faults in
the Malimath Committee’s reasoning and the implications of the increased power in the
hands of the judges must be studied in greater detail.

BIBLIOGRAPHY