By Ambika Gupta*

Introduction

Seeking to make comprehensive changes in criminal laws to provide affordable and speedy justice and create a people-centric legal structure, the government has initiated the process to amend the Indian Penal Code of 1860, the Code of Criminal Procedure of 1973 and the Indian Evidence Act of 1872 in consultation with stakeholders. One of the reforms for which the government is attempting to determine the prospects is the adoption of the inquisitorial method of criminal justice or at least some elements of it. Interestingly, a switch from the adversarial to the inquisitorial approach was also advised in the 2003 Malimath Committee Report [hereinafter “Committee”]. The inquisitorial system’s judge-controlled process is anticipated to produce more convictions and expedite the resolution of cases than the adversarial system’s lawyer-led trials.

A change in the criminal justice system in a country like India may have implications beyond the courtroom; it has the potential to impact the popular perception of the legitimacy of the criminal law process. In wake of this, the article aims to examine whether implementing the inquisitorial approach would be a suitable remedy. India’s readiness to handle the effects of granting the judges additional authority, particularly for the rights of the parties concerned, is yet another crucial issue which has to be taken into account.

Adversarial Versus Inquisitorial System

As the term indicates, in an adversarial system, the trial is viewed as a battle between the prosecution, who represents the victim, and the defence, who attempt to prove their account of events as true with the aid of evidence. The prosecution must establish the accused’s guilt beyond a reasonable doubt. The judge’s position in this is constrained, and he is frequently compared to a passive, unbiased umpire. The adversarial system emphasizes on the live testimony of witnesses before the court and their cross-examinations by the opposite side. Thus, the adversarial system is based on the premise that “contested and oppositional presentation of facts best reveal the truth”.

A role reversal is evident when it comes to the inquisitorial system of criminal justice. Here, the judge actively participates in determining the truth. An extensive pre-trial inquiry is conducted before the trial under the direction of the “juge d’instruction”. As a result, the judiciary decides what data should be given at trial, not the parties.

Why is there a Demand to Change India’s Criminal Justice System from Adversarial to Inquisitorial?

The current suggestion by the Union Ministry to use an inquisitorial approach appears to be an attempt to solve the issue of the nation’s low conviction rate. The number of criminal cases still pending in court has risen to its highest level since the dawn of the 21st century, according to the NCRB data. The enormous percentage of convicts awaiting trial who are still being held in jails is another sign that cases are taking too long to be resolved.

The judge’s passive involvement in the adversarial system is one of its main criticisms. Instead of endeavouring to ascertain the truth, the system requires him to confine himself to the facts and evidence presented by the parties, however faulty or convoluted they may be. Since the trial is envisaged as a combat between the two parties, each of them puts forward only that evidence which favours them. Such an approach fails to give a complete presentation of facts and thwarts the discovery of truth. The high burden of proof needed to prove the guilt of an accused is another issue that the adversarial system in India frequently faces condemnation for. The Committee in its report observed that such a high standard of proof would make it difficult to secure the conviction of the accused on whom the burden is very little and who hires a very competent lawyer, while the prosecution, on whom the burden is high, is very often represented by persons of poor competence.

Is Inquisitorial System a Panacea to India’s Ailing Criminal Justice System?

One cannot help but notice that the Committee seems to place more importance on getting more convictions than on the rights of the accused. Without a doubt, the basic goal of every criminal law procedure is to determine guilt. Thoughts about securing a fair trial and protecting the rights of the parties should not be disregarded in the quest for this goal.

Regarding the freedom given to the judge to determine the truth for himself, the inquisitorial system is unquestionably recommendable to the adversarial system. His control over the entire process of trial and investigation helps to ensure that important evidence is not overlooked and that the trial process is not unduly delayed by the dilatory tactics adopted by the counsels. Regrettably, with an active judge leading the pack, there is also the risk of departure from the fairness and rationality that are anticipated by a judge. This is due to the judge’s difficulty in avoiding bias against the accused at the beginning of the trial when he serves in both the capacity of an investigator and a judge. In this regard, scholars like Prof. Lon L. Fuller have discussed that the inquisitorial method permits more room for bias.

Additionally, it is asserted that achieving procedural justice is better accomplished by an adversarial system. According to research by social psychologist Tom Tylor, the notion of “being treated fairly” or procedural justice involves the following: (i) the party was able to express their side of the story; (ii) the adjudicator demonstrated that they had been listened to; and (iii) the party was treated with decency during the proceedings. The judge-controlled inquisitorial system gives the parties little opportunity to construct their cases. The judge decides what information is relevant and written witness statements are preferred over the oral examination of witnesses. As a result, the parties feel completely cut off from the trial process. On the contrary, adversarial systems provide litigants with greater control in shaping the narrative through their lawyers. Witnesses are also examined live before the court and this gives them a chance to tell their story directly. Consequently, parties’ perception of procedural justice is said to be greater in an adversarial system.

A review of India’s readiness for the change to an inquisitorial paradigm is also necessary for determining whether India’s ailing criminal justice system can be cured by a complete shift to the inquisitorial mechanism. It is necessary to put safeguards in place to prevent judges from abusing their authority. It is exceedingly improbable that our current legal framework and institutional framework can support the shift to an inquisitorial system without compromising the rights of the plaintiffs.

The Way Ahead

Adopting an inquisitorial system won’t solve all the issues plaguing India’s criminal justice system at the moment. Instead, it might lead to fresh problems like courtroom abuse, encroachment on the rights of the accused, etc. Hence, a preferable strategy would be to improve the current system by reforming it and addressing problems such as lack of resources and manpower, ineffective police investigations, corrupt behaviour, etc.  Moreover, to guarantee that victims have enough faith in the legal system while safeguarding the rights of the accused, it is important not to forget the victims. Several actions can be taken to ensure that our criminal justice system lives up to victims’ expectations.

One is to set up a system that will allow victims to voice their displeasure with their prosecutor’s performance, like failure to present crucial evidence or to adequately represent their interest before the court. The victims rely on the prosecutor to prosecute their case with efficiency and to secure them justice. However, this may be negatively affected by prosecution lethargy resulting from an overload of cases, unsatisfactory remuneration and lack of competency. Additionally, the victims need to be given broader participation privileges. Many times, prosecutors fail to communicate the latest position of the case to their clients and the clients have to helplessly depend upon case diaries. In this regard, the findings of the Committee are noteworthy. It recommended giving victims the right to participate in the proceedings which include the right to advance arguments after the prosecutor, the right to know about the progress of the investigation and the right to move to the court to ask for further investigation.  Last but not least, the author advocates incorporating restorative justice ideas into criminal prosecution. Restorative justice essentially calls for restoring the parties, especially the victim, to the position occupied before the commission of the crime. While the usual sentencing practices may fulfil the state’s interest in creating deterrence, they may not alleviate the psychological impact of the crimes of the victim. Hence, instead of a shift to the inquisitorial system, there should be the reformation of the existing system so that it satisfactorily meets the ends of criminal justice.

*Ambika Gupta is a 5^th year law student pursuing BALLB at Vivekananda Institute of Professional Studies (VIPS), IP University. The author may be contacted via mail at email.ambika.gupta@gmail.com.