This article has been written by Srishti Singh, a 1st year BA LLB student from the Army Institute of Law, Mohali.
Introduction
Man is a social and political being with his own needs and desires. Man also possesses the animal instinct which if not brought under control can wreak havoc and destruct social order.
In Black’s Law Dictionary, crime is defined as, “an act committed or omitted, in violation of a public law, either forbidding or commanding it; a breach or violation of some public right or duty due to a whole community, considered as a community. In its social aggregate capacity, as distinguished from a civil injury.” Therefore, crime or criminal activities are such instances when man finds an opportunity to deviate from the social norms and cause destruction to person(s) and property.
Thus, there arises the need for the creation of a framework to regulate, investigate and enforce the laws to prevent and reduce the number of crimes committed in a society.
Need for Criminal Justice Systems
A criminal justice system is a foundation created for investigating and making offenders liable for the crimes they have committed. It follows a step-by-step procedure of arresting offenders, conducting inquiry for finding proof, filing of charges, forming of defenses, conducting trials and bestowing sentences on the accused, if found guilty or acquitting him of any charges, if proven innocent. Criminal offences are examined by exploring all the facts, circumstances and situations which may prove the guilt of the accused.
The investigation is conducted in a systematic manner, by paying close attention to all the details and analyzing and evaluating the material gathered to reach a proper conclusion to prosecute the accused who has committed the crime or to acquit the accused, in case of his not being guilty. A trial is simply the judicial examination of the matters brought before the court. Each and every piece of evidence is important to determine the guilt of the accused. To determine the outcome of every criminal case, the judge pays attention to the evidence presented and the legislation governing the same.
Objectives of Criminal Justice Systems
All criminal justice systems have been created with a set of objectives in mind. These include:
- Punishing the wrongdoers
- Preventing the further commission of crimes in society
- Regulating human behavior and conduct in society, especially of criminals
- Providing relief to the victims of crime
- Treatment of offenders and making provisions for their rehabilitation
- Creation of deterrence or fear in the minds of people to prevent them from indulging in any crimes
Types of criminal justice systems
Around the world, there are many types of criminal justice systems. The various types of criminal justice systems have evolved as per the special requirements of every country. All of these have the same objectives of regulating human behaviour and conduct and maintaining social order. The most common types of criminal justice systems are –
- Adversarial Criminal Justice System
An adversarial criminal justice system is a court system where an impartial judge or jury decides the case argued by the prosecutor, on behalf of the plaintiff and the defense attorney who defends his client, i.e., the defendant. The judge here, essentially plays the role of a referee – ensuring fairness to the accused and making the court follow the legal rules of the criminal procedure. In this system, the police and the defendant are liable for gathering evidence and the evaluation of the evidence gathered is done by an impartial judge.
The adversarial system can be found in England, Australia, Canada and other British dominions and colonies like India. It sets out a common procedure to be followed for all segments of society as it believes in the supremacy of law.
Here, the procedural safeguards are in favour of the accused. The accused has the right to be heard, the right to remain silent during examination and any doubt which may arise during inquiry shall benefit the accused. Other rights provided to him include the right to appeal, the right to legal aid and the right be free from unwarranted searches and arrest etc. This is why this system is frequently also described as a pro-accused system.
In the adversarial system, the parties have the right to select the evidence they wish to present before the court. This system increases the self-assurance of the people within the legal system as each party is given fair opportunities to challenge the evidence presented by the opposite party. Therefore, the lawyers chosen by the litigant have a responsibility to present the case in a manner which favours them. The only duty of the court here, is therefore, to deliver a hearing based on the ideal of justice and equity.
The procedure here, is outlined as follows –
- Framing of charges
- Recording of evidences presented by the prosecution
- The statement of the accused
- Consideration of the evidence provided by the defense
- Presenting closing and final arguments
- Judgement by the court
- Inquisitorial Criminal Justice System
The inquisitorial criminal justice system relates to the Roman Germanic system of law also known as the civil law legal system or the continental law system. It can be found in France, Germany, New Zealand, Italy, and Austria. Its primary feature is conducting extensive pre-trial investigation and interrogations with the objective to avoid bringing innocent people to trial. In the inquisitorial system, the main focus is on conducting the inquiry to ascertain the truth.
In this system, the judge has the power to himself investigate the matter brought to light and decide the case as per the investigation and inquiry. Here, the counsel from each side is present, but there is no provision for conducting cross-examination of the witnesses. This system is also less formal and the determination of justice does not depend on the advocates presenting the case, but the judge alone.
In this procedure, the state is involved at two different stages, firstly, when the prosecutor collects the facts of the case and submits a dossier containing the same to the judge, and secondly, when an unbiased and independent judge explores the facts and uncovers the truth. The power to examine in this system, therefore, primarily rests with the judicial police officers.
The judicial police are required to collect evidence in an indiscriminate and objective manner as it is their duty to help the investigation and prosecution in discovering the truth. The judge, here, has unlimited power when it comes to collecting and evaluating evidence. Therefore, in this system, the judge plays an active role in exploring the truth and also dominates the court proceedings for the same reason.
Here, the accused is presumed to be innocent until proven guilty by the judge. The witnesses have to provide statements which are duly recorded during investigation and are admissible while forming the idea for the prosecution case during trial. Here, the judge, the accused and the victim are entitled to participate in the hearing. The role of the parties, however, is restricted to making suggestions regarding the questions which should be put forth to the witnesses. As it is the judge who puts forward all the questions to the witnesses, there is no scope for cross-examination intrinsically.
In inquisitorial systems, the chances of a fair trial are low and also, the court’s participation in the investigation may lead to creation of biased attitudes while deciding the case. Also, here, the accused does not have the right to privacy, so he is forced to explain everything which he may not wish to express for thorough investigation of the matter.
The procedure here, consists of the following steps –
- Arraignment
- Bail hearing
- Preliminary inquiry and trial
- Judgement by the court
Comparative Analysis
| Adversarial Criminal Justice System | Inquisitorial Criminal Justice System |
| This system seeks to discover the truth through an open competition between the prosecution and the defence. | The inquisitorial system aims to discover the truth through extensive investigation and examination of all evidence gathered. |
| The parties have the power to decide which witnesses to call and the nature of evidence they present. | The conduct of the trial is in complete control of the court. So, the trial judge decides which witnesses are to be called and in which order they are to be heard. |
| The previous decisions given by the higher courts are binding on lower courts. | Judicial precedents have little role to play in inquisitorial systems. Therefore, here the judges have freedom to decide each case independently of the precedents set by the courts and through application of the relevant legislations. |
| The lawyers here, have to play an active role. | Here, the lawyers have a passive role to play. |
| The judges decide the case on the basis of the hearings, evidence presented or on the basis of examination and cross-examination. | The judge, here, plays an active role in investigation and examination. He does the questioning and hears the parties directly. |
| Here, the rule of the judges is passive in nature. | The rule of the judges in inquisitorial systems is very active. |
| The case management does not depend on the judges, so his contribution in the disposal of cases is very low. | The case management depends on the judges, so his contribution is very high for the disposal of any case. |
| The references are presented by the respective lawyers of both the parties. | Besides the lawyers, the judge also plays an active role in the presentation of references. |
| The lawyers of both the parties have the freedom to determine the case management on their own terms. | The case management depends on the judges and so does the term for the disposal of cases. |
| Here, evidence or examination and cross-examination by the lawyer is given priority. | The documents and the information collected about the real facts are given a priority here. |
| The case management is not as effective under this system because the judge does not play an active role and cannot present his views to the parties for taking any decisions. Therefore, no initiative can be taken to ensure speedy disposal of cases. | The case management here is far more effective as the judges discuss with the parties their views for making any decisions. This ensures speedy disposal of cases. |
| The judges have discretionary powers but, they are not as wide to be exerted over evidence. | The judges have discretionary powers which are wide in nature. |
| The repeated filing of time petitions is allowed at the time of the continuance of the case. So, speedy disposal of cases becomes a difficult ordeal. | This system seeks to reduce the time taken for disposal of cases and ensures speedy justice. So, the judge here has the power to decide whether a time petition should be accepted or rejected. |
Criticism
Both the types of criminal justice systems have their own sets of disadvantages. Scholars have criticized them on the following grounds –
Adversarial Criminal Justice System
- In adversarial criminal justice systems, the lawyers are obligated to act on behalf f their clients and in the best interest of their clients. So, he may have to nullify or exterminate any evidence which may pose a threat of prosecution to his client.
- Here, both the parties have to collect and present evidence in best interest of their clients, which may lead to slow disposal of cases.
- The accused in this system is always assumed to be innocent until proven guilty and is also, given the benefit of doubt in case any arises. Therefore, it is a pro-accused system, which may prove to be a not so beneficial feature of it.
- Here, as the parties have complete freedom in determining which evidence to present, they may develop an intention to deceive and skew the original facts to present them in their client’s favour.
- The police may prove to be incompetent in cases where not much evidence is present.
Inquisitorial Criminal Justice System
- As the judge or the magistrate is an active participant in the process of inquiry, the court may develop a biased attitude towards the accused and convict him of a crime which he may not even have committed solely, on the basis of the nature of the crime he has allegedly committed.
- In inquisitorial systems, the right to privacy of the accused is often violated.
- Here, the police and the investigating authorities may even misuse or abuse their power.
- As the parties have to summon their own experts during the trial, some of which may not be able to be present on time or may not be able to be present at all, it leads to delays and acts as a disadvantage for this system.
Conclusion
The adversarial system and the inquisitorial system mainly differ on the grounds of the techniques employed to discover the truth in any case. Both the systems have their own sets of strengths and weaknesses, and yet both remain in place and are meticulously followed in different countries. Therefore, the merits of both the systems should be fused together to create a system without any downfalls. This will ensure that justice, especially criminal cases is thoroughly and fairly served.
References
https://blog.ipleaders.in/criminal-justice-system-in-india/#Types_of_criminal_justice_systems
https://blog.ipleaders.in/a-comparison-between-civil-law-countries-and-common-law-countries/#:~:text=Civil%20law%20is%20founded%20on,tasked%20with%20establishing%20the%20law.