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

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 ACKNOWLEDGEMENT

I hereby take the opportunity thank Prof. Pawan Mishra sir, for his consent and the inspiration
that he radiates. His jovial behaviour and ease making attitude eased my tension and the initial
doubts that I had about my potentialities. I also want to thank my friends who helped me a lot
in preparing this project. I have also taken help from several books and websites for doing this.
Ultimately, I once again thank Pawan sir, who made indelible impact on me which shall go
beyond the pages of this project and reflect in all my endeavours of life.

Hoping Acceptance and Appreciation from you, I hereby submit this project.

- Shruti

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 PREFACE

I have prepared this project on the topic accusatorial and inquisitorial system of justice. It deals
with various aspect of it and highlights the basic of the system in other countries also. There
are some case laws which deals with this aspect of justice. Accusatorial systems deals mainly
with the system where court does not involve in the investigation process whereas inquisitorial
system is a system where judiciary involves directly in the investigation process. So, this paper
deals with this aspect in detail and its application in criminal justice delivery system.

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 INDEX

S.NO. TOPIC PG.NO.

1. Introduction 9

2. Concept 10-11

3. Comparative Analysis 12-14

4. Supreme Court Criticism 15

5. Malimath Committee Report 16

6. Demerits of using jury in criminal cases 17-18

7. Administration of justice and Rule of Law 19

8. Dichotomy of accusatorial and inquisitorial system 20

9. Converging need of deliberation 21

10. Case Laws 22-24

11. Conclusion 25

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Title of the proposed study

Accusatorial and Inquisitorial system of trial

Literature Survey/Review

The following Primary and Secondary sources have been referred to

Primary Sources

 Book referred

The following textbooks have been referred

1. Rajendra kumar Sharma, ‘Criminology and penology’ Atlantic Publishers and

Distributers (p) Ltd, edn 2017.

 Statutes Referred

1. The Indian Penal Code, 1860

2. The Code of Criminal Procedure,1973

3. The Indian Evidence Act,1872

Secondary Sources

 Journal /Article referred

1. Prof Dr Teresa Armenta, Beyond Accusatorial or inquisitorial system : Matter of
deliberation and balance, Journal of Constitutional and Parliamentary Studies, Jan-
June 2008, Vol.42 p.79-88
2. Md. Maimul Ahsan Khan, ‘Justice system Accusatorial and Inquisitorial ways’ ,
Economic and Political Weekly, Vol. 37, no. 4, 2002, pp. 294-298

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  Reports Referred
Malimath Committee Report

 Website referred
1. http://avalon.law.yale.edu
2. http://en.wikipedia.org
3. http://indiankanoon.org
4. www.icj-cij.org
5. http://www.icc-cpi.int
6. https://www.researchgate.net/publication/290428213_Justice_System-
Adversarial_and_Inquisitorial_Ways
7. https://www.researchgate.net/publication/290428213_Justice_System-
Adversarial_and_Inquisitorial_Ways
8. https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-
inquisitorial-legal-systems.html
9. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=84742
10. https://www.jstor.org/stable/23905393?seq=1#page_scan_tab_contents

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Hypothesis

The following hypotheses would be taken account of in this study and they have been examined
in the course of discussion. A conclusion has been drawn to assess whether the hypotheses
proposed were true to their extent of statement

1. Whether Accusatorial system of trial sub serve the justice.

2. Accusatorial system is more efficient and transparent.

Research methodology

In accordance with the objectives of the present study, doctrinal research design has been
adopted. The doctrinal design has been used to study the Concept and Development of
accusatorial and inquisitorial system of trial. Doctrinal Research is a research, as we all know,
based on the principles or the propositions made earlier. It is more based on the sources like
books of the library, and through resources collected through access to various websites. For
the purpose of the Research Project, the Researcher has collected relevant materials from books
on criminology and also from various websites. The Research has been done primarily with
the help of case laws and leading judgements of various courts as well as legislative provisions.
Various articles from the internet sources have also been referred.

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 ABSTRACT

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. 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.

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.

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 its report in April 2003.

It is important to accept that different factors pull in different directions, not only
between different systems but in terms of rights, and often in many different or even
conflicting directions.

The apex court has criticized the non-dynamic nature of adversarial adjudication on
many occasions. In Ram Chandra vs. State of Haryana,1 the Supreme Court opined:
“ there is an unfortunate tendency for a Judge presiding over a trial to assume the role
of referee or umpire 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 proceducure.

1
AIR 1981 SC 1036

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INTRODUCTION

Any legal dispute or conflict involves more than one party or person and in most cases
concerned parties need appropriate technical and legal assistance to present their grievances
and wish to get a resolution in his or her favour. The adversarial system of resolving legal
disputes appears to be fair, logical, and worthy to be used for reaching to a judgment. Each
party needs to be represented by a legal expert or a team of experts of law and knowledgeable
about the disputed facts over which the concerned parties have their own version of elaboration.
Thus lawyers or attorneys in the court of law present the contesting parties where judges or
juries come to a conclusion, verdict or judgment to be obeyed by all parties concerned. Judges
should be neutral to the parties and the advocates, who represent the interests of the parties. In
the adversarial system judges simply chair the legal battles and give patience hearing to the
advocates, and then ultimately pronounce orders, verdicts or judgments. Investigation process
either remains out of the court or judges only limit the investigations, which are being
demanded by any concerned party.

In the adversarial system, judges and advocates are almost equally concern not to break rules,
precedents, and conventions, and only very rarely judges can exercise any upper hands over
the advocates presenting the cases. It is not very difficult for advocates to manipulate laws and
facts leading to confusion and unjust judgments. In many case, judges are simply helpless in
front of the canning, shrewd, and even corrupted lawyers.

In the inquisitorial system judges enjoy more power and can act as an activist judge in almost
all cases. A judge preside alone in the court or he or she is entitled to bring more judges to hear
the advocates and practically can investigate the case by studying relevant papers and may
direct further investigation under the supervision of the courts.

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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. 2

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 the questioning

2
www.cbl-international.com › docs › csu0714 › the-adversarial-vs-inquisito.last accessed on 09/10/2019

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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 Whithorn3

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.

3
(1983) 152 CLR 657 per Dawson J at 682).

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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.4

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

4
https://www.lawteacher.net/free-law-essays/criminal-law/adversarial-and-inquisitorial-systems-of-justice.php
last accesed on 19/10/2019

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adversary system places emphasis on form could be a contributing factor to erroneous
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. 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.

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

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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.

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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.

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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,5 the Supreme Court opined: “ there is an
unfortunate tendency for a Judge presiding over a trial to assume the role of referee or umpire
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.” 6
In State of Rajasthan vs. Ani Alias Hanif7 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

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 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.

5
AIR 1981 SC 1036
6
Ibid
7
(1997)6SCC162

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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."

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Demerits of using a jury in criminal Cases

The judges beings the so-called impartial referee between parties under the adversarial
system practically make the entire judicial system ineffective and unpredictable, while we
know that a major function of law is the predictability of the consequences of actions or crimes
committed by the perpetrators. Determining the actual facts relevant to the concerned cases is
practically the most important work for the court. An inquisitorial system this work can be
done properly and accurately without any unnecessary delay as the court and judge actively
take part in the process, while in the adversarial system it is like a wild guess of the parties,
which bring completely different versions of the story what really happened and by whom.

With the civil law system in place under the chair of the inquisitor-judges the trial process and
the delivery of judgment in not only transparent and well augmented by the judges themselves,
the scope of the creation of concocted evidence and its use is also very limited. Lawyers may
lose his license for using falsified or concocted evidence, while in the adversarial system court
can take little action against the lawyers. The court may only refer the issue to the bar of the
lawyers, who then become their own judges. This is fundamentally a flawed system to deliver
justice to the public or people at large.

To minimize the demerits and disadvantages of the adversarial system of justice, some
countries including the US practically use a quasi-inquisitorial system for hearings cases of
misdemeanours such as traffic violations and domestic violence to save the time of the court
and the party concerted. However, these cases can be considered as summary trials rather than
regular court procedure under the civil law system. These summary trials are called as non-
adversarial way of settling legal issues. However, presence of any summary trials in the
adversarial system has not been taken well by the lawyers’ communities, who regard it as a
violation of fair and just system of delivering justice. Many critics of inquisitorial system even
try to portray the entire civil law system as a summery trial of justice and according to whom
only adversarial Common Law system may serve well to the causes of justice. In fact, many of
these critics of Civil Law system of justice tend to trivialize the theoretical and practical

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distinction between Common law based on primarily on precedent-based case law system and
Civil Law traditions based on statutes-based system. 8

The statues-based inquisitorial system has narrowed the gap between the substantive law and
adjective laws, which are primarily regarded as procedural laws. For the inquisitor-judges it is
not fundamental whether the concerned law has been found in substantive law or procedural
law. Thy are interested in fair trial with accordance of laws or with accordance of the
interpretations of laws give by higher courts or his predecessors with higher capacity. Here a
living and insane mind with fair and honest judgment takes the precedence of all other
secondary sources of law such as customary law, precedents or judge-made laws.

The judges should have the capacity based on laws how to determine the criminal enquiries
and trials without giving much thought how harsh or light punishment they can impose on the
perpetrators or accused. That is not the purpose of justice. As the laws are not the same as
justice, so judges should have enough room to find out right decisions without any fear of
intimidation on behalf of any lawyers or lawyers’ communities, who work primarily for
financial or other mundane gains.

The position of a judge is quite different than any other party involved in any legal dispute. If
lawyers think that they should have the right to dictate to the judges then the entire purpose of
delivering justice would automatically bound to be jeopardized. And that is what has been
happening with our colonial system we have inherited from the English laws based on
9
adversarial system.

Administration of justice and Rule of Law: From Philosophy To Reality

The inquisitorial procedure in Europe is a legacy of almost one thousand years old. In terms of
Islamic legacy it is much more older. In fact, not the criminal justice system occupies any

8
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2147385 last accessed on 22/10/2019
9
https://www.researchgate.net/publication/290428213_Justice_SystemAdversarial_and_Inquisitorial_Ways/link/
569761b208aea2d74374fc21/download last accessed on 22/10/2019

19 | P a g e
bigger place in Islamic jurisprudence; it is the administrative justice that controls the vast
majority of cases in the court of law. Any legal dispute has been taken as a matter of civil
disputes rather than going for incarceration of the offenders. Only a few crimes have been
regarded as an attack on the entire society or state. This lessons had been forgotten by the
Muslim jurists many centuries ago, and the English Law traditions brought too many issues
under the domain of the criminal law and criminal procedure. 10

The initial dichotomy: Inquisitorial–Accusatorial: the essence of both configurations

and a brief historical view.

Much has been written on the historical development of procedural systems and initially two
main systems are allowed when “designing” or “building” criminal procedures: the
accusatorial system and the inquisitorial system, whose most significant notes can be
summarized as follows: the accusatorial system is characterized by demanding a tripartite
process configuration, with a prosecutor, the defendant and a fair court in charge of judging,
aimed at ensuring fairness but which can also jeopardize the prosecution or at least be
subjected to variations as a result of using discretion. The inquisitorial system, meanwhile, can
concentrate the prosecution and the function of judging in one sole subject by eliminating the
need for the existence of an accuser to judge, and this role is conducted by the judging body.
The aim, in this case, is to ensure the prosecution of crimes at the cost of sacrificing fairness in
this setting. The so-called “formal accusatorial system or mixed system”, which combines
characteristic elements from the previous two by incorporating the prosecutor in the trial is,
however, fully justified to ensure prosecuting the crime and thus achieving the goal of criminal
law, first, and second, to ensure the separation of prosecution and judging functions. It is true
that in this direction the monopoly system allows greater control over exercising prosecution,
but it also raises serious doubts about impartiality in exercising the prosecution. Meanwhile the
accusatorial process owes its original conception to an almost total assimilation between
criminal law and civil law, in which the "compositio" took the place of punishment and became
a subjective right attributed to individuals11; and it is important to recall that this would not
look out of place today when compared to the adversarial system.

10
Ibid
11
In Greece where the system was truly accusatorial and citizens both conducted the trial and faced the duty to

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The following characteristic features are outstanding in this model: the judge cannot proceed
"ex officio" since a charge is needed for the trail to begin, the prosecutor investigates,
determines the facts and the subject, collects the evidence and consequently sets the limits on
the judge’s prosecuting powers (consistency), the process receives information based on the
principles of duality, discrepancy and equality, weighing up evidence is freely done without
aspiring to establish an objective concept of truth; and finally, the system is based on public
justice and therefore the single case prevails 12.

The validity of the aforementioned system in its original setting highlighted a number of defects
such as not ensuring equality when subjects belonged to different social and economic classes,
and a particularly major flaw which inevitably led to the lack of implementing an expansive
criminal law assuming the state would avoid the drawbacks of the single public prosecution13.
Paradoxically, a situation similar to that follows the current predominance of adversative trends
and could also occur as a result of the greater or lesser convergence of civil and criminal
procedures and the incorporation of mechanisms derived from bargaining in both, although in
criminal proceedings they are seen as a lesser evil against the system's inability to control
crime14. Faced with this situation and as criminal law passed from private to public, the state,
through the figure of the judge, assumed the function of prosecuting, thus incorporating one of
the main features of the inquisitorial system15. Others may be listed as follows: the state
automatically proceeds to start criminal proceedings without need for an individual to request
so, and this body carries out the dual function of prosecuting and judging (the concept of
citizen-prosecutor disappears); the judge himself investigates, defines the scope of what is to
be tried and marks the boundaries of its consistency, the process is not configured as being dual
or contradictory thus weakening the possibilities of defence when these are not eliminated,
while weighing up evidence is established by law and is directly aimed at seeking the truth;
finally, people’s courts disappear with the subsequent specializing of the function of judging;
establishing another court at a higher level16. Notwithstanding the fact that the resulting setting

investigate, while in Rome especially at the time of the Republic and later as implied by the reference made by
Tacitus to "compositio" (fine as a penalty or compensation) in chapter 21 of his book "Germania" Ambos
(2008), pp. 49-72.
12
Gómez-Orbaneja, (1947) pp. 163-165.
13
Garraud, (1907) p.164.
14
Skalinsky (2008), p. 1688.
15
And in Rome at the time of the Empire the trial could be initiated ex officio (cognitio) in cases of serious
crime(fire, theft, etc...). But significantly in the Germanic and canonical process from the twelfth century, a
lawsuit lodged by an individual was no longer essential, just the mere lodging of a complaint or an extended
rumour to start the "inquisitio" in order to ascertain the truth. Trusen, pp. 81, 87ss y 142.
16
Gómez-Orbaneja, (1947)pp. 165.

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fails to correspond to the traditional process as actus trium personarum, it does correspond to
a way of understanding the criminal justice system as a whole, as both organic, substantive and
procedural, and thus it becomes a procedural system17. It happens that the correct pair to be
contrasted is not an accusatorial-inquisitorial process but an adversarial-inquisitorial process.18

Convergence of the two systems, essential aspects beyond labels. There is no pure
system and convergence is inevitable.
So we must admit that there is neither a system in its purest form nor should achieving this be
an ideal and which nowadays, in short, is unsustainable 19. History shows an inevitable trend
towards incorporating features into both the systems that used to characterize the opposite 20,
as stated even in American literature regarding reforms in various countries in Europe during
the twentieth century21 as well as in Latin America, leading these American authors to wonder
about the appropriateness of the term "inquisitorial" rather than "mixed" to refer to trials in
Europe. And signs of convergence do not end there. The existence of international courts, such
as the ECHR, has led to a major effort to achieve not only legislative harmonization, but to
interpret and resolve seemingly different systems such as those in Britain, Spain, Italy and
Germany22. This interaction repeated in the International Criminal Court has raised major
distrust in the defenders of adversative orthodoxy who, unlike those who have a will to convert
and who abound in countries of mixed tradition, raise voices which end up concluding that the
transition towards "non-adversative" formulas would come up against almost insurmountable
and in any event unjustified difficulties, due to essentially unbalancing a system that, while
presenting undeniable defects, has found a sufficiently acceptable and at least consistent
formula in itself. 23In sum, problems that could arise from uncritical imports and the need to
reach meeting points between the aforementioned phenomena of growing internationalization

17
Montero Aroca (1997), p. 29.
18
Damaska (2000), pp.12ss.
19
Damaska (1999), (1986) & Bradley
20
Goldschmidt, Ferrajoli, Schünemann, Park, Sklansky (2008), Pizzi (2008), Jackson (2008), Armenta-Deu
(2008). Also in German, Aud dem Weg zu Einer Reform des Strafprozesses?- Unabdingbare Prinzipien und
kriminalpolitische Whalmöglichkeiten in “Festschrift für Claus Roxin”, Walter de Gruyter GmbH&Co, Berlin
(2001), ss. 1229-1243.
21
Merrymann. (1969).
22
Hellfer/Slaughter. (1970).
23
Taruffo, (1979), p. 245 & Sklansky (2008), p. 1683 y ss.

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have been detected, without defending at all costs the best feature of a system in absolute
terms. 24

The balancing game and the need for deliberation.

It is important to accept that different factors pull in different directions, not only between
different systems but in terms of rights, and often in many different or even conflicting
directions. Examples abound: the concern to strengthen the rights of the defendant requires us
to follow ways that slow the momentum of criminal proceedings and that can complicate the
search for truth; while pragmatic concerns require simplifying processes, demanding once
again that the best possible balance with other objectives is sought to guarantee fundamental
rights, without any disproportionate waiver that ultimately loses its basis and is likely to cause
adverse or at least undesirable effects. Regarding the above, just consider a combination of
speedy trials (which limit or exclude the investigation stage) with the implementation of
bargained solutions and a flight towards non-judicial methods, which are phenomena that,
although often associated with countries governed by the adversarial system, have today been
extended so that any assessment requires detaching oneself from this model. Any of these three
instruments treated separately or adopted in response to specific situations may be beneficial,
but when reforms are aimed only at the largest extent of such mechanisms, waiving the others
ends up affecting the whole trial, affecting a guarantee which, which we should mention, has
been painstakingly achieved over the centuries. The fact that books are published on the death
of the trial or the phenomenon of the vanishing trial should be food for thought.25

BeJs v. Brady26

“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

24
Damaska (1996) 134-8.
25
Burns.
26
316 U.S. 455, (1942)

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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. Alabama27

“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. Wainwright28

“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.

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.29
EviJs v. Lucey (1985)

27
287 U.S. 45(1932)
28
1963
29
www.cbl-international.com › docs › csu0714 › the-adversarial-vs-inquisito last accessed on 23/10/2019

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“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
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.

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.

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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.

The apex court has criticized the non-dynamic nature of adversarial adjudication on
many occasions. In Ram Chandra vs. State of Haryana,30 the Supreme Court opined:
“ there is an unfortunate tendency for a Judge presiding over a trial to assume the role
of referee or umpire 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 proceducure.

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.

30
AIR 1981 SC 1036

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 BIBLIOGRAPHY

Primary Source

 Book referred

The following textbooks have been referred

1. Rajendra kumar Sharma, ‘Criminology and penology’ Atlantic Publishers and

Distributers (p) Ltd, edn 2017.

 Statutes Referred

1. The Indian Penal Code, 1860

2. The Code of Criminal Procedure,1973
3. The Indian Evidence Act,1872

Secondary Sources

 Journal /Article referred

1. Prof Dr Teresa Armenta, Beyond Accusatorial or inquisitorial system : Matter of
deliberation and balance, Journal of Constitutional and Parliamentary Studies, Jan-
June 2008, Vol.42 p.79-88
2. Md. Maimul Ahsan Khan, ‘Justice system Accusatorial and Inquisitorial ways’ ,
Economic and Political Weekly, Vol. 37, no. 4, 2002, pp. 294-298

 Reports Referred
Malimath Committee Report

 Website referred
1. http://avalon.law.yale.edu
2. https://www.jstor.org/stable/23905393?seq=1#page_scan_tab_contents

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 3. https://www.google.com/search?q=accusatorial+and+inquisitorial+systems+of+criminal
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5. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=84742
6. https://www.jstor.org/stable/23905393?seq=1#page_scan_tab_contents
7. https://www.researchgate.net/publication/308405127_BEYOND_ACCUSATORIAL_OR_I
NQUISITORIAL_SYSTEMS_A_MATTER_OF_DELIBERATION_AND_BALANCE
8. https://www.lawctopus.com/academike/comparison-trial-procedure-indian-courts-
franch-courts/
9. https://law.jrank.org/pages/7663/Inquisitorial-System.html
10. https://tandfonline.com/doi/abs/10.1080/13642987.2016.1162408?src=recsys&journal
Code=fjhr20

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