IS INDIA READY TO MOVE TO AN INQUISITORIAL SYSTEM OF JUSTICE? By Anu Manoj from NMIMS School of Law
India has inherited the adversarial system of justice from its colonial masters, the British. In this 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 judge acts like a mediator to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused.[i] The parties determine the scope of dispute and decide in a selective manner on the evidence that they present to the court. The trial is oral and confrontational.
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. While this 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.
As far as the inquisitorial system is concerned, the power to investigate offences rests primarily with the judicial police officers. They investigate and draw the documents on the basis of their investigation. The police are required to gather evidence for and against the accused in a neutral and objective manner as it is their duty to assist them.
The main problem in this component of criminal justice system is huge backlog of cases due to resource and manpower constraints. Due to this, there are enormous delays in the adjudication, increases in litigation costs, loss or diminished reliability of evidence by the time of trial, and unevenness and inconsistency in the verdicts that ultimately are reached at trial. Consequently, large numbers of under trials languish in jails while awaiting trial.[ii] In many cases, the detention under trial even exceeds beyond the maximum periods to which they could be sentenced if convicted. Justice delayed is of course justice denied. Such incapability of the judiciary in delivering justice on time has the danger of reduction of faith in the justice system among the people; low conviction rate has created a perception that crime is a ‘low-risk, high-profit business’.[iii]
The present Adversarial System is not only insensitive to the victims’ plight and rights, but also does not encourage the presiding judge to correct the aberrations in the investigation or in the matter of production of evidence before court. The judges in this system are more concerned with the proof.
The assumption that the shift from an adversarial to an inquisitorial system will render criminal justice more efficient also fails to address the deeper-rooted causes of the shortcomings of the criminal justice system in India. As has been reported by numerous human rights organizations, the Indian criminal justice system 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.[iv]
Recent movements in India like the concept of ‘plea bargaining’ are a deviation from the conventional Indian method. The power of the Magistrate to monitor the investigation as held by the Hon’ble Supreme Court in Sakiri Vasu case[v], the concept that the judge is not an Umpire, the broad interpretation of the power of the judge u/s. 165 of Evidence Act etc. are approaches towards an inquisitorial system. Anyhow, it is entirely different from the inquisitorial system of trial which is followed in France.[vi] The fact that even the Central Bureau of Investigation in India is not an independent agency for the time being is to be remembered in this context. Reforms in the Indian Judicial system that promote movement to find out the truth without prejudice to the right of the accused to a fair trial are to be welcomed.
[i]Malimath Committee on Reforms of Criminal Justice System;Report 1:http://www.498a.org/contents/general/malimath_criminal_justice_system.pdf
[ii]Ministry of Home Affairs (Government of India), Committee on Reforms of Criminal Justice System, Vol. 1, March 2003, para 1.3.
[iv] Amnesty International (op cit note 24), p 3
[v]Sakiri Vasu v.State of U. P., AIR 2008 SC 907
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