BALLB- Adversarial and Inquisitorial Systems of Law with their differences.

 INTRODUCTION

The purpose of any criminal justice system is to punish the offender and protect the innocent (society). State machinery is operative to prevent the crime and penalize the offender. There seem two models in general, as inquisitorial model and the adversarial model of justice. Both justice systems insist upon the right adjudication of the accused and protection of the innocent. But there are fundamental differences as to rules of procedures in each of these systems which has been mentioned below.

                                   

          

The Inquisitorial System:-(Civil law countries)

Inquisitorial system:- An inquisitorial system is a legal system where the court is actively involved in proof of facts by investigating of the case. This system resolves disputes and achieves justice for individuals and society.

l Judges enjoy more power and can act as activist judges in almost all cases.

l Aims to attain justice by the composite effort of the prosecutor, the police, the defence lawyer and the court.

l Procedure is not held vital

l Attorneys are more passive

l Legal representation is not indispensable

 

Advantages of Inquisitorial System

l Court plays a substantive role in trial to secure justice

l Minor error in the procedure is ignored

l All components of the criminal justice system must help to secure justice so the accused has no right to silence.

 

Disadvantages

l Court’s participation in the Inquisition may lead to a biased attitude

l Right to Privacy of the accused is denied

l The prosecutor or police may misuse the power as they have separate laws to deal with their conduct

l Supremacy of law and equal treatment is not entertained.

 

Adversarial system

The Adversarial System:- (Common Law Countries)

Court/ Judges are held in a neutral position like an umpire. Two or more parties gather evidence and present the evidence to a judge or a jury. The whole process is a contest between two parties.

l Legal representation is a compulsion

l Strict observance of criminal procedure

l Right to Silence of the accused is guaranteed

l The accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty

l Skill of the counsel is important

l The concept of cross-examination and presumption of innocence is entirely due to the adversarial system

 

Advantages

l Strict observance of the procedural law

l Court’s position like an umpire

l Lawyers – indispensable part

l Accused has the right to silence and cannot be compelled to be answerable when questioning during a trial

l Right to privacy is best preserved

 

Disadvantages

l Accused doesn't help the police

l Judge in the court as an umpire is a misleading conception

 l The investigation of the case is not as effective as in the inquisitorial system. In Govinda Mainali’s case due to lack of proper investigation, he had to remain in custody for 15 years until finally by retrial he was released after new evidence showed he was innocent of the crime.

 

The distinction between adversarial and inquisitorial systems.

 

The following table outline contains the fundamental differences between typical adversarial and inquisitorial systems-

Adversarial System	Inquisitorial System
The adversarial system aims to get the truth through the open competition between the prosecution and the defence.	The inquisitorial system generally aims to get the truth of the matter through extensive investigation and examination of all evidence.
In an adversarial system, all parties determine what witnesses they call and the nature of the evidence they give. The court oversees the process by which evidence is presented.	In an inquisitorial system, the conduct of the trial is in the hands of the court. The trial judge determines what witnesses to call & order in which they are to be heard.
In adversarial systems, previous decisions by higher courts are binding on lower courts.	There is little use of judicial precedent in inquisitorial systems. This means Judges are free to decide each case independently of previous decisions by applying the relevant statutes.
In an adversarial system, the role of lawyers is active.	In an inquisitorial system, the role of lawyers is passive.
The judges pronounce judgment depending on the hearing, evidence or on the basis of examination & cross-examination.	The judge plays an active role in questioning & hearing the parties directly.
Judges do not call witnesses except when there is a need for clarification.	The judge is expected to call witnesses.
The skill of counsel is essential.	The skill of counsel is not important as compared to the Adversarial system
In an adversarial system, all references are presented by the respective lawyers of both parties.	In an inquisitorial system, references are also presented by the judge & they play an active role.
Case management depends upon the lawyers of both parties & they get the opportunity for case management upon their own wishes.	Case management depends upon the judges and the judges fixes the term for the disposal of any case.
In an adversarial system, the hearing, evidence or examination & cross-examination done by the lawyer get priority.	In an inquisitorial system documents and information about the real facts get priority.
Case management is not effective under this system because the judges can not exchange views with the parties for making any decision. So no initiative can be taken for speedy disposal of any case.	Case management is effective under this system & the judges sit with the parties and can exchange views for making any decision for the speedy disposal of any case.
In an adversarial system, judges have discretionary power but that is not wide on the evidence.	In an inquisitorial system, judges have wide discretionary power.
Repeated time petition (common practice) is permitted at the time of continuance of the case & the lawyers take the opportunity of making time petition. So delay occurs in the disposal of any cases.	The main object of this system is to reduce the time for disposing of a case and to ensure speedy justice. The judge plays an active role in deciding the time petition & may honour or reject the time petition.

 

Conclusion

Both of these models of justice have their own advantages and disadvantages. Each system can serve the purpose of justice if it is aware of its disadvantages and has taken measures to minimize them. The government need to take action to inspect the current justice system of our country and needs to make huge reforms to it.