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Adversarial and inquisitorial system of justice

 Adversarial and inquisitorial system of justice




Both the adversarial and inquisitorial system of justice is practiced by the judicial bodies of diverse and varied nations, both these systems pertain to administer criminal justice during trial. Both these systems are successfully applied but we need to decide out on the suitable system for equipping justice under Indian circumstances. 

An Inquisitorial system, preferably we normally characterise it as the  the police system, the probation system, alternate dispute resolution system all working  as a single machinery  on the  fundamental principles of law. An inquisitorial system of justice is one where the judiciary takes active charge of investigation and inquiry of the case it is dealing with. The judges here ask question to the plaintiff and defendant directly and there are rare chances for seeking appeal and re-trial as the judges themselves had investigated. The judge then makes a decision by measuring the evidences from his investigation of the case. The judge This system is followed by France and Germany. This type of system in my opinion will not be suitable for our country like ours as there is lack of transparency in the investigations, there could be biased tendencies from the judges part and the privacy of the appellants and accused are not respected entirely. In a democracy that advocates, right to privacy, right to information and rights to remain silent under right to speech and expression, should not entertain the inquisitorial system in its entirety. 

An adversarial system of justice is one where the court does not involve itself in the inquiry and investigation process, they depend on the prosecution and the  defence  for the facts of the case are only expected to hear and examine the arguments and evidence put forward by them , carefully analysing them and deciding a fair and impartial verdict for  the dispute in question. This system is followed in India and Canada. However India does not follow a strictly adversarial system of justice as there are hints of inquisitorial nature hinted by the courts. One fine  example of such is (Central Government Act) Section 165 of The Indian evidence Act, 1872  and section 311 of The Code of Criminal Procedure,1973.

In the case of Bal Krishna & Ors vs State of Jammu & Kashmir, the role of the courts is to be more than just as a safeguard of records or witnesses, but the relevant provisions at hand (Sec. 311 and Sec. 165) gives the court large powers so as to elicit every pertinent and necessary material. It is possible for the court to know which material is necessary is essential only when they are involved in the entire process of evidence collection and in monitoring the proceedings. Furthermore, if the court believes that there is something unusual about the prosecutor or they are not working in a manner which befits the office and the position they are at, then there can be an effective control over the proceedings by the court as well. It would be the fault of judiciary if they ignore or stay oblivious to any of the loopholes or dereliction of the duties of the officers in power. 

 The adversarial system is best suited to India as the the lawyers faithfully represent their clients in court, whole-heartedly gathering evidence and upholding their privacy. The court then decides unbiasedly after examining the evidences and witnesses presented by both the parties. However a hint of inquisitorial system should be applied to extreme Criminal cases that are of public importance if necessary only. Other than that India is doing better than most counties in terms of applying adversarial system to deliver justice. 
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