Final Draft Legal English

“ADVERSARIAL SYSTEM OF ADJUDCATION” FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILMENT OF THE COURSE TITLED

ENGLISH

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA - 800001 SUBMITTED TO: Dr. PRATYUSH KAUSHIK FACULTY OF ENGLISH

SUBMITTED BY: NAME: ABHISHEK TIWARI COURSE: B.A. LL. B (Hons.) ROLL NO: 2104 SEMESTER: 1st

Page | 1

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL. B (Hons.) Project Report entitled “ADVERSARIAL SYSTEM OF ADJUDICATION” submitted at Chanakya National Law University is an authentic record of my work carried out under the supervision of Dr. PRATYUSH KAUSHIK. I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the contents of my Project Report.

NAME OF CANDIDATE: ABHISHEK TIWARI CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

Page | 2

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. PRATYUSH KAUSHIK whose guidance helped me a lot with structuring my project. I owe the present accomplishment of my project to my friends, who helped me immensely with materials throughout the project and without whom I couldn’t have completed it in the present way. I would also like to extend my gratitude to my parents and all those unseen hands that helped me out at every stage of my project.

THANK YOU, NAME: ABHISHEK TIWARI COURSE: B.A., LL. B (Hons.) ROLL NO: 2104 SEMESTER: 1st

Page | 3

CERTIFICATE This is to certify that my Project Work entitled “Adversarial system of adjudication” submitted by Mr. ABHSIHEK TIWARI is the record of work carried out during semester-I of First Year B.A. LL.B. Course for the academic year 2019-2020 under my supervision and guidance in conformity with the syllabus prescribed by Chanakya National Law University.

Dr. Pratyush Kaushik (Faculty of Legal Language)

Page | 4

INDEX INTRODUCTION ………………………………………………………………………..6-7 *

AIMS AND OBJECTIVES

*

HYPOTHESIS

*

RESEARCH METHODOLOGY

*

SOURCES OF DATA 1. CHARACTERSTICS ………………………………………………….…….......10-12 2. ROLE OF JUDGES………………………………….…………………..……….12-14 3. CRITICISMS AND CRITICS POINT OF VIEW………………………...……..15-16 4. PROS AND CONS ……………………………………………………………...16-19 5. COMPARISON BETWEEN THE SYSTEM OF ADJUDICATION IN INDIA AND FRANCE…………………………………………………………………………20-22 6. COMPARISON WITH INQUISTORIAL SYSTEM……………………………23-25 7. CONCLUSION AND SUGGESTIONS…………………………………………25

BIBLIOGRAPHY………………………………………………………………………..26-27

Page | 5

Introduction In ancient time, in order to win more kingdoms or to rule more provinces, wars were common. Might is right was the rule. All the powerful people had their command over community. 1 But, with the passage of time, the concept of might is right was replaced by rule of law. Now, everything is structured and streamlined. Society is transformed. The Welfare State aims to bring peace and wherein criminals should be punished and people should be protected and tranquility shall be maintained. Society is a mixture of people. It comprises of all kinds of personalities and characters. There are millions of law-abiding people as well as law breaking people. Law is meant to protect law abiding people and to punish law breaking people. Law has an objective to maintain law and order, keep and thus the society in a clean and healthy environment. To gain this objective, control over bad element is indispensable. In order to control bad elements in society there is a need to control crime. The State maintains its own machinery to carry this duty. This machinery is a combination of police, advocates, Prosecutors, Judges, and probation officers. Malimath Committee Report, 20032 At the different level, Malimath Committee Report, 2003 is a product of constant research of committee members with Chairman Dr. Justice Malimath for complete study of criminal justice system in India. As a matter of research topic of this research, these members took great efforts to find out lacunae in the Indian Criminal Justice system with suitable references of principles of burden of proof and constitutional mandates. This Report also covers the steps to be taken on priority basis to repair the system. While comparing Indian Pattern, the Report insists on adopting a few of the adoptable steps and principles from Inquisitorial Model in our Adversarial criminal justice system. The report has made exhaustive study of basic principles under Evidence Act, 1872 e.g. protection to innocents, right to silence of accused, burden of proof, its extent, impact, and a like Criminal Justice System in India. And references are given of the criminal Justice System applicable in France. The committee in Report has made great efforts to differentiate between the criminal justice systems of India with the other Inquisitorial criminal justice systems. The committee appreciated in their report the pattern of coordination of Police with the Prosecutors which is followed in the Inquisitorial 1

Prof. K.S.N. Murthy and K.V.S. Sarma, Modern Criminal Law, Edition 2000, S. Gogia and Company, P. No. 1 Committee on Reform of Criminal Justice System, Government of India (2003) (Popularly Known as Malimath Committee Report) 2

Page | 6

criminal justice system for better law and order situation.Adversarial courts provide for the losewin situation, wherein third person is appointed by the state for this purpose who after hearing the parties to the suit adjudicate by his judicial prudence within the parameter of the complicated procedure or technocratic principles of statutory law. The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case. If you go down to a car dealership to pick out a used car, you probably don't want to make your decision based on the advice of the car salesman. You would want to have someone who has your interests in mind help you choose a car and negotiate the price. You would not just want someone who told you whether everything the salesman said was true, but someone who actively looked to see if any relevant information was not told to you. This kind of partial fact-finding is at the core of the adversarial system of justice. The adversarial system of justice is defined by its use of interested opposing parties debating over an issue in order to ensure the pursuit of justice. This theory of justice has been criticized for its value of winning over truth, but it is a system that looks to protect the rights of individuals on trial. The adversarial system of justice establishes that each side in a court proceeding should endeavor to win the proceeding within the limits of the law and rules of the court. This means that the plaintiff should work and present the best argument and best evidence that the defendant is guilty, and the defendant should work to present the best argument and evidence that it is unreasonable to find them guilty. The debate between prosecution and defense unfolds in the presence of a judge, who acts as a moderator of the proceedings and makes sure each side follows the rules, and a jury, who listens to both cases and then renders a verdict. This system is used in place of an inquisitorial system of justice, where the judge serves as the active fact-finder, and the officers of the court work in their capacities to help determine the truth of the charges made rather than take sides. This system is often touted as a better alternative to the adversarial system of justice as it emphasizes impartiality and truth-seeking over the value of winning in a court setting. 3

3

http://lawbrain.com/wiki/Adversary_System , Accessed on 06/09/2013 at 21:12 IST

Page | 7

Aims and objectives  The researcher aims to present a detailed study of adversarial system of adjudication in India.  The researcher tends to look after the jurisprudential aspect and present position of adversarial system.  To study two converse models of Criminal justice Deliverance System i.e. Adversarial and Inquisitorial and to understand its foundational principles and mode of governance.

Limitations if any Since the researcher is a student of law, he has access to a limited area. The researcher having read the content through various websites is able to understand the topic but its practical implementation would have been clearer if some more cases were referred. The researcher has limited time for the project. The historical need and background is also necessary for having a bird’s eye view of the particular topic and it gets developed only by effective and extended reading over a long period of time. But the required materials are not available in our library. But still researcher with his hard work will manage to take out the best possible work.

Research Questions What are the foundational principles and mode of Governance of Adversarial Criminal justice Deliverance System?

Sources of data The researcher will collect data mainly from secondary sources: 

The secondary sources are:  Magazine  Journals  Books

Page | 8

Research methodology Mostly doctrinal method and primary method of research was adopted in the making of this project. Few primary and secondary methods were used. Some literary works and books and articles were referred and the internet through various websites was used extensively for the collection of data which was required for the study needed for this research.

Page | 9

1. CHARACTERSTICS OF ADVERSARIAL SYSTEM As an accused is not compelled to give evidence in a criminal adversarial proceeding, they may not be questioned by a prosecutor or judge unless they choose to do so. However, should they decide to testify, they are subject to cross-examination and could be found guilty of perjury. As the election to maintain an accused person's right to silence prevents any examination or crossexamination of that person's position, it follows that the decision of counsel as to what evidence will be called is a crucial tactic in any case in the adversarial system and hence it might be said that it is a lawyer's manipulation of the truth. Certainly, it requires the skills of counsel on both sides to be fairly equally pitted and subjected to an impartial judge. By contrast, while defendants in most civil law systems can be compelled to give a statement, this statement is not subject to cross-examination by the prosecutor and not given under oath. This allows the defendant to explain his side of the case without being subject to crossexamination by a skilled opposition. However, this is mainly because it is not the prosecutor but the judges who question the defendant. The concept of "cross"-examination is entirely due to adversarial structure of the common law. Judges in an adversarial system are impartial in ensuring the fair play of due process, or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision, rendering obsolete the judicial process in question—rule of law being illicitly subordinated by rule of man under such discriminating circumstances. The rules of evidence are also developed based upon the system of objections of adversaries and on what basis it may tend to prejudice the trier of fact which may be the judge or the jury. In a way the rules of evidence can function to give a judge limited inquisitorial powers as the judge may exclude evidence, he/she believes is not trustworthy or irrelevant to the legal issue at hand. All evidence must be relevant and not hearsay evidence. Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced Page | 10

conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel. The name "adversarial system" may be misleading in that it implies it is only within this type of system in which there are opposing prosecution and defense. This is not the case, and both modern adversarial and inquisitorial systems have the powers of the state separated between a prosecutor and the judge and allow the defendant the right to counsel. Indeed, the European Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems of its signatory states. The right to counsel in criminal trials was initially not accepted in some adversarial systems. It was believed that the facts should speak for themselves, and that lawyers would just blur the matters. As a consequence, it was only in 1836 that England gave suspects of felonies the formal right to have legal counsel (the Prisoners' Counsel Act 1836), although in practice English courts routinely allowed defendants to be represented by counsel from the mid-18th century. During the second half of the 18th century advocates like Sir William Garrow and Thomas Erskine, 1st Baron Erskine helped usher in the adversarial court system used in most common law countries today. In the United States, however, personally retained counsel have had a right to appear in all federal criminal cases since the adoption of the Constitution and in state cases at least since the end of the Civil War, although nearly all provided this right in their state constitutions or laws much earlier. Appointment of counsel for indigent defendants was nearly universal in federal felony cases, though it varied considerably in state cases. It was not until 1963 that the U.S. Supreme Court declared that legal counsel must be provided at the expense of the state for indigent felony defendants, under the federal Sixth Amendment, in state courts. 4 One of the most significant differences between the adversarial system and the inquisitorial system occurs when a criminal defendant admits to the crime. In an adversarial system, there is no more controversy and the case proceeds to sentencing; though in many jurisdictions the defendant must have allocution of her or his crime; an obviously false confession will not be accepted even in common law courts. By contrast, in an inquisitorial system, the fact that the defendant has confessed is merely one more fact that is entered into evidence, and a confession

4

http://www.theplatform.co.ke/?p=395, Accessed on 06/09/2013 at 23:11 IST

Page | 11

by the defendant does not remove the requirement that the prosecution present a full case. This allows for plea bargaining in adversarial systems in a way that is difficult or impossible in inquisitional system, and many felony cases in the United States are handled without trial through such plea bargains. In some adversarial legislative systems, the court is permitted to make inferences on an accused's failure to face cross-examination or to answer a particular question. This obviously limits the usefulness of silence as a tactic by the defense. In England the Criminal Justice and Public Order Act 1994 allowed such inferences to be made for the first time in England and Wales (it was already possible in Scotland under the rule of criminative circumstances). This change was disparaged by critics as an end to the 'right to silence', though in fact an accused still has the right to remain silent and cannot be compelled to take the stand. The criticism reflects the idea that if the accused can be inferred to be guilty by exercising their right to silence, it no longer confers the protection intended by such a right. In the United States, the Fifth Amendment has been interpreted to prohibit a jury from drawing a negative inference based on the defendant's invocation of his right not to testify, and the jury must be so instructed if the defendant requests. Lord Devlin in The Judge said: "It can also be argued that two prejudiced searchers starting from opposite ends of the field will between them be less likely to miss anything than the impartial searcher starting at the middle.”5

2.ROLE OF JUDGES: Judges in an adversarial system are impartial in ensuring the fair play of due process or fundamental justice. Such judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted when there is a dispute; though in some common law jurisdictions judges play more of a role in deciding what evidence to admit into the record or reject. At worst, abusing judicial discretion would actually pave the way to a biased decision

5

http://lawbrain.com/wiki/Adversary_System, , Accessed on 06/09/2013 at 23:11 IST

Page | 12

rendering obsolete the judicial process in question- rule of law being illicitly subordinated by rule of man under such discriminating circumstances. 6 The Judge's role is to uphold principles of fairness and equality and to remain neutral until the very end when he gives judgment. This contrasts with the inquisitorial legal system which sees the Judge take a much more active role in preparing evidence, questioning witnesses and finding the truth. In an adversarial legal system, previous decisions made by higher Courts form a precedent which will bind the lower Courts. In contrast, Judges in an inquisitorial legal system tend to be free to make decisions on a case-by-case basis. The principle behind the adversarial legal system is to place distance between the investigation taking place and the person who ultimately decides the outcome. The system empowers the parties to the dispute to take control of their own case on the basis that they (as opposed to a judge) are better placed to present their best case. The parties to a dispute or their advocates square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. In his decision, the judge may take into consideration grounds, explanations and documents relied upon or produced by the parties only, if the parties had an opportunity to discuss them in an adversarial manner. He shall not base his decision on legal arguments that he has raised sua sponte without having first invited the parties to comment thereon. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the present Indian judicial system, the modem adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict. In an adversary system, the judge or jury is a neutral and passive fact finder, dispassionately examining the evidence presented by the parties with the objective of resolving the dispute between them. The fact finder

6

https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-lawconstitutional-law-essay.php

Page | 13

must remain uninvolved in the presentation of arguments so as to avoid reaching a premature decision. Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice – legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts. Many criminal cases – and almost all civil ones – are heard by a judge sitting without a jury. The judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty. Anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request a jury trial, and many defendants facing serious offences such as murder opt to have a jury hear their case. The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors. The jurors then retire to deliberate on a verdict. In criminal cases the jury’s verdict, either “Guilty” or “Not Guilty” must be unanimous. If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can range from a fine to a prison term depending on the severity of the offence. In civil cases the judge decides whether a claim is valid and assesses damages, grants an injunction or orders some other form of redress to the plaintiff, unless a jury has been empanelled to make these decisions. However, even though an English Judge may not decide what matters to investigate and how to do so, his role is by no means passive. Under the Civil Procedure Rules ("CPR") which came into force in 1999, the Court has very wide case management powers which are used to ensure that the dispute is resolved efficiently and in accordance with the CPR’s overriding objective of enabling the Court to deal with cases justly and at a proportionate cost. The Court will do so by Page | 14

excluding superfluous evidence, managing the parties' costs, and setting a strict timetable to Trial under threat of sanction should any of the dates be missed. There is, however, a perceived unfairness in the adversarial legal system in situations where the parties do not have 'equality of arms'; a better resourced party may be more able to gather evidence and present a stronger case to the Judge than their opposition. Furthermore, because the parties have near complete conduct of the case from start to judgment, they are able to choose what evidence they put before the Court. In comparison, in an inquisitorial system the Judge is involved throughout the process and actually steers the collation and preparation of evidence. He is therefore able to decide what evidence is admitted by both parties, before questioning the witnesses himself and going on to make an informed decision on the outcome. That said, given the importance placed on the investigative role of an inquisitorial Judge, the risk of bias is (arguably) greater in an inquisitorial system. As said by judge Megan L.A. Brown all evidence must be relevant and not hearsay evidence. Peter Murphy in his practical guide to evidence recounts an instructive example. A frustrated judge in an English (ADVERSARIAL) court finally asked a barrister after witnesses had produced conflicting accounts, ‘Am I never to hear the truth?’ ‘No, my lord, merely the evidence’, replied counsel.

3. CRITICISMS AND CRITICS POINT OF VIEW: Criticisms of the adversary system are that it is slow and cumbersome. The judge, acting as a neutral fact finder, can do little to accelerate a trial, and procedural and evidentiary rules further slow the process. Likewise, the wide availability of appellate review means that a final determination can take years. However, at least one study has shown that in courts where adversarial trials were discouraged and settlements actively encouraged, litigants still encountered substantial delays in resolution.7

7

http://study.com/academy/lesson/adversarial-system-of-justice-definition-advantages.html

Page | 15

The adversary system may no longer be the best method for our legal system to deal with all of the matters that come within its purview. If late twentieth century learning has taught us anything, it is that truth is illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and, most importantly, complex. In short, there may be more than just two sides to every story. The binary nature of the adversary system and its particular methods and tactics often may thwart some of the essential goals of any legal system. Critics argue that the adversary system is inadequate, indeed dangerous, for satisfying a number of important goals of any legal or dispute resolution system. They operate at several different levels of the adversary system: epistemological, structural, remedial, and behavioral. I suggest that we should rethink both the goals our legal system should serve and the methods we use to achieve those goals. For those who cleave to the adversary system, 8 I want to shift the burden of proof to them to convince us that the adversary system continues to do its job better than other methods we might use. Critics pose some disturbing questions about the adversary system: Is justice served by a process that is more concerned with resolving controversies than with finding the ultimate the truth? Is it possible for people for people with limited resources to enjoy the same access to legal services as do wealthy people? Does a system that puts a premium on winning encourage chicanery, manipulation, and deception?9

4. PROS AND CONS 

Adversarial System Pros:

 It is seen as fair and less prone to abuse. Those who support this system often argue that it is fairer and less prone to abuse than other legal systems, as it does not allow any room for the state to favour against the defendant. Instead, it allows private litigants to settle disputes in 8

ALAN M. DERSHOWITZ, THE BEST DEFENSE (1982) (defining the lawyer's goals in competitive terms, such as winning); MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM (1975) (exploring the impact of the conflict between moral obligations and duties to the client); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS (1990) (expressing a traditional view of the lawyer's role in the adversary system). 9

https://brightkite.com/essay-on/the-adversarial-system-1

Page | 16

amicable means through pre-trial and discovery settlements, where non-contested facts will be agreed upon to try not to deal with them in the litigation process.  It properly observes the rights of the defending and prosecuting parties. In this judicial system, an accused individual is given the right to remain silent, get a lawyer to help him state the case and remain innocent until proven guilty, which is a crucial aspect in the outcome of the case. As for the prosecution, they are also allowed to present facts as they interpret and understand them. Another thing is that the government is advised on all criminal matters.  It allows both sides to support their positions. The adversarial system allows both parties to present witnesses and evidence to support their positions, where they can cross examine witnesses, independently analyse evidence and challenge arguments. The objective here is to present all the facts for the benefit of the jury and the judge in deciding what really happened and who should be held responsible. Judge reserves comment until all evidence from both parties is heard which makes the judge appear more neutral.  It provides power to the police. In this approach, the police play an essential role in the path to justice, where they are the ones who will run the investigation while adhering to certain conditions, such as presenting a warrant. They cannot detain an accused individual without proper arrest.  It does not promote bias. The jury and the judge are expected to remain impartial—after all they are chosen using criteria that are designed to get rid of people who might be biased in a certain case. Basically, this system presents the contest to individuals who do not have interest in the outcome and can evaluate the facts objectively. However, this system can become complicated, where lawyers on both sides can use rhetorical, but legal, strategies to influence opinion that can affect the outcome of the trial.  It hears the stories from both sides. Generally, this system does not allow the Judge to comment until both sides are heard, making him less biased and lessening the possibility of public protest to the verdict.  The position of the court is independent regarded as that of an umpire. Both parties contest in the court. The court is to see whether the game being played before it is fair and conducive to justice or not by following the principles of natural justice. Each party to the suit has to be given equal opportunity to be heard. Page | 17

 It insists upon strict observance of procedural law. Due process of law is regarded as the most appropriate method to attain justice. Violation of procedure leads to injustice.

 Adversarial System Cons:  It obliges each side to contest with each other. The adversarial litigation approach is sometimes criticized for setting up a system where sides on a case are required to contest with each other. This is believed by critics to encourage deception and other questionable legal tactics, as the objective is to win at all costs, instead of evaluating the facts to learn the truth.  It might lead to injustice. Critics point out that a lot of cases in an adversarial system, especially in the US, are actually resolved by settlement or plea bargain, which means that they do not go to trial, leading to injustice especially when the accused is helped with an overworked or unskilled lawyer. Also, they argue that this type of system causes the participants to act in perverse ways, encouraging defendants to plead guilty even when they think otherwise and prosecutors to bring charges far beyond what is warranted.  It might result in judgments compelled by arguments, instead of evidence. In this system, the discovery with evidence rests upon the lawyers who work for each side, with the better one having better chances to win the case. But is the jury is involved, the final decision might be swayed by the most compelling arguments, instead of solid proof.  It has issues with accessibility. One criticism of an adversarial system that is very difficult to refute has something to do with accessibility. It cannot be plausibly argued that average defendants can enjoy the same access to legal representation as the wealthy and influential defendants, which is the same with the part of the plaintiffs. However, supporters explain that such unequal access resulted from social and economic conditions, not the structure of the judicial system, adding that altering the way of delivering legal services would do nothing in addressing the root causes of such a disparity.  It uses a tedious process. It is also said that the adversarial form of legal system is slow and cumbersome, where the judge—who acts as a neutral fact finder—could only do little to hasten the trial process, not to mention that the evidentiary and procedural rules can slow down the process further. In addition, the wide availability of appellate reviews would mean Page | 18

that a final decision can be made for years, though at least one research has shown that some courts discouraged holding adversarial trials and making active settlements. However, litigants in this approach are still encountering substantial delays in reaching a resolution. And while this disadvantage is true, supporters still argue that the slow methodical system is needed to protect individual rights.  Prosecution = Government. So, everyone and anyone who is a government employee or whose pay comes from taxes is basically bound to support the government, right or wrong. A prosecutor who tells the truth and that truth hurts the government’s case — again and again — will be fired. Police officers support prosecutors because they are both “on the same side”. Between them, they can and do manipulate, suppress, and destroy evidence, disbar witnesses, refuse to question witnesses who support the defense, and so on.  The adversarial system has only one purpose — to win. It doesn’t matter what happens to the victim(s), the person on trial, or to anyone else. One side must win — at any cost. There is no “draw”. There is no reason to learn the truth, use the truth, or even to disclose the truth. Everyone lies as much as possible because lies are more likely to produce victory than truth.  Conduct of trial of accused is the basic requirement of criminal justice system in which the accused is presumed to be innocent and guilt of accused is proved beyond reasonable doubt by prosecution. Hence trial can be delayed, prolonged, and likely to be costly. These flaws are further aggravated because the procedures of court are too lengthy and too detail from the issuance of summons to till passing of the judgment. e) In adversarial system the courts are strictly adhered to the rules and regulation of procedural law. For every matter in the court the parties are required to submit the application under respective rules which is rigid and cumbersome. Therefore, the court’s main focus is on how to settle the dispute rather than settling the dispute.

Page | 19

5. COMPARISON WITH INQUISTORIAL SYSTEM  The adversarial system aims to get the truth through the open competition between the prosecution and the defense while the inquisitorial system is 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 overseeing the process by which evidence is given but 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 rule of lawyers is active. In an inquisitorial system the rule 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 rule for questioning & hearing the parties directly.

 In an adversarial system the rule of the judges is merely passive in nature. In an inquisitorial system the rule of the judges is very active.

 The case management does not depend upon the judges so the judge’s contribution is very low for the disposal of any case. The case management depends upon the judges so the judge’s contribution is very high for the disposal of any case. 10

 In an adversarial system all references are presented by the respective lawyers of both the parties. In an inquisitorial system references also presented by the judge & they play’s an active rule.

 The case management depends upon the lawyers of both the parties & they get unfettered opportunity for the case management upon their own wishes. The case management depends upon the judges and the judges fixes the term for the disposal of any case.

10

http://study.com/academy/lesson/adversarial-system-of-justice-definition-advantages.html

Page | 20

 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 cannot exchange views with the parties for taking any decision. So, no initiative can be taken for speedy disposal of any case. Case management is effective under this system & the judges sits with the parties and can exchange views for taking any decision for speedy disposal of any case.

 In an adversarial system judges have discretionary power but that is not wide by 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 lawyer’s take the opportunity of making time petition. So delay occurs in disposal of any cases. The main object of this system is to reduce the time for disposing a case and to ensure speedy justice. Judge plays an active role in deciding time petition & may honored or reject time petition.11 In Adversarial mode, all kinds of evidences are not permitted and on the other hand in inquisitorial mode it is not that particular while accepting the evidences. The accused enjoys right to silence in Adversarial mode. This is not so in the inquisitorial model which is being followed in France, where Prosecutor gets support from both the police and also from the investigating Magistrates. Hence, he can lead his case more effectively and fruitfully. On the other hand, in India normally the Prosecutors keep distance from investigation process. Less harmonization with the police and Judges leads to the grant of benefit of doubts to the accused in the adversarial model. That indirectly increases crimes and criminals. For better administration of justice, the Adversarial Model is cumbersome and needs to reframe the principles considering better future of the effective prosecution. In order to determine the guilt of the accused, there are two basic models of administration of criminal justice in the world. One is Adversarial or Accusatorial system. The modus operendi, role of the police, Prosecutors and the Judges changes according to the model of criminal justice system. Indian Criminal Justice model is based on the Adversarial or 11

http://www.lawyersclubindia.com/articles/Adversarial-system-of-justice--5312.asp

Page | 21

Accusatorial Justice System. All the procedural laws are based on this Model and the ultimate aim of the trial is Fair Trial.256 The trial is conducted in front of the competent, impartial and independent Judges. The Judge never interferes in the investigation nor does he assist the Prosecutors for prosecution of the case. The police investigate the case; Prosecutor brings before the Judge all the relevant facts. The Prosecution proves the guilt of the accused beyond reasonable doubt. On failure of the prosecution, the 'benefit of doubt' is given to the accused. The accused is never questioned during the trial and he is presumed to be innocent till found guilty. All the principles of natural justice are rigorously followed in the Adversarial Model. The isolation of Prosecutor and police and Judges leads to slow pace. The Prosecutors become helpless if the police have not cared to investigate meticulously. Heavy burden on prosecution often leads to failure to prove the cases beyond reasonable doubt. Ultimately it leads to acquittals which are fatal for crime control in society. If there is no respect for law and order in the society, the criminal tendencies in the society get encouraged. Inquisitorial Model is altogether different which is followed in France and also in the most of the European Nations. The ultimate aim of trial is to make a search for truth. Judges actively participate in the investigation. The police, Prosecutors and the Judges collectively work in the pre- trail phase in order to strengthen the prosecution case. The accused is presumed innocent and prosecution needs to prove the case this way or that way. However, the quantum of proof of the guilt is not beyond reasonable doubt as it is expected under the adversarial model. All kinds of evidence is accepted to prove the cases. This favorable atmosphere leads French Prosecutors to discharge their functions effectively. It leads to better conviction rate which is a must to effectively control crime in society.

Page | 22

6. COMPARISON BETWEEN THE SYSTEM OF ADJUDICATION IN INDIA AND FRANCE: i)

Framing of Charges: -

In India, the Charges are framed by Prosecutors and approved by the Judge. The document showing the outline of the entire case is known as Charge sheet. On the other hand, the charges are solely prepared by the Prosecutors in France without approval of the Judges. The entire document is known as dossier. ii)

Preparation of the List of Witnesses to be Examined: -

In India and France, the list of Prosecution Witnesses is prepared by the Prosecutors on the basis of the whole case, and in both the countries list of defense witnesses is prepared by defense Counsel. The Judicial Officers approve the list of witnesses. iii) Examination of Witnesses in India: Examination of witnesses commences as per Section 137 of the Indian Evidence Act, 1872. As per the sequence, the Prosecutor conducts the Examination in Chief. Then the defense party conducts cross examination of witnesses and if required, upon approval of the court, cross examination of the witnesses is conducted by Prosecutors if the prosecution witness/ witnesses do not support the prosecution. The accused in India enjoys the right to silence. If the prosecution proves the case beyond reasonable doubt, then only the guilt can be determined. All kinds of evidences are not permissible while examination of the witnesses. Indian Evidence Act does not allow the Hearsay Evidence. Only the best possible evidence or the direct evidences are permitted. Almost all kinds of evidences are permitted before the courts. The hearsay evidence is also permitted before the courts. The Prosecutors need not prove the cases beyond reasonable doubt as is expected in Indian law / courts. The Prosecutors need to bring before the courts the preponderance of probabilities. The accused is presumed innocent till proved guilty in both the Nations. In India, the victim of the crime is not empowered to dictate the Prosecutors about the mode of examination of witnesses. The victim of the cases is disentitled to guide the Prosecutors about the questions to be asked during examination of witnesses. However, on the other hand in France, the prosecution witnesses are allowed to interfere and suggest the questions to be asked Page | 23

to the witnesses through Prosecutors. Closure Report of the examination of witnesses is 144 given by the Prosecutors in France as well as in India upon completion of examination of witnesses in the respective courts. iv)

Argument and Judgment

Argument of the prosecution case is conducted by the Prosecutor (Orally as well as in written form) in India as well as in France. Argument of the defense Counsel follows the Argument of Prosecution. On the basis of all the material brought before the courts, the court delivers judgment. The prosecution is an indispensable branch of any criminal justice administration. Hence, being responsible officers in the administration of justice, much care is needed in the recruitment process. Power of appointment of Prosecutors vests with the Government in both the countries. In India the Ministry of Law and Judiciary of the State Government deals with the appointment. On the other hand, in France Prosecutors are appointed through Ministry of Justice at the federal level. In both the Nations candidates willing to become Prosecutors shall be French citizens and shall be Law Graduate. i)

Role of District Magistrates and the Sessions Judge/ High Court Judge

In India, District Magistrate prepares a list of interested candidates who aspire to become Prosecutors. Upon approval by the Sessions Judge, the list is sent to the State Government. The Government selects the names from the approved list on ad hoc basis and thus the Public Prosecutors and the Additional Public Prosecutors at the District Level are recruited. In France, the Prosecutors are appointed through Ministry of Justice. French Prosecutors enjoy the same status as Judges. Hence both of them are considered to be at par. French Prosecutors have their full-time career in the Prosecutorial function. Ministry of Justice conducts examination of the candidates who are law Graduates. Successful candidates need to undergo internship at the Bar for the next two years. At the end of rigorous training and experience, candidates are appointed as Prosecutors.

Page | 24

ii)

Experience of Practice

Indian candidates need to have experience of legal practice of a specified duration before they become eligible for selection as Prosecutors. E.g. For Public 149 Prosecutor or Additional Public Prosecutor at the Session court or the High Court minimum seven years’ experience in the Sessions court is required. For the post of Special Public Prosecutors, the candidate needs to hold at least 10 years practice at the Sessions Courts. However, in order to be an Assistant Prosecutor at the Magistrate courts, the candidate needs to practice for minimum tenure of three years. On the other hand, for any class of Prosecutors in France minimum two years of practice at the Bar is needed. However, the candidate needs to undergo the compulsory training. iii)

Tenure of Job

Under Indian Legal System, the Public Prosecutors and Additional Public Prosecutors are appointed on ad hoc / contract basis. They are temporary employees of the States. Their jobs are for a specific period as decided by the State Govts. There is hardly any job security for their services. However, the Asst Prosecutors at the Magistrates Courts are full time employees of the respective States and their jobs are secured by retention. On the other hand, the job of the French Prosecutors is fully secured since they enjoy lifetime career. They are treated like the judicial officers. Once they are recruited as Prosecutors, they need not do private practice. Fixed tenure of job attracts the skillful and quality candidates in the French Criminal Justice system. iv)

Pay Scales, Perks and Other Employment Benefits

The Indian Prosecutors are paid nominal remuneration depending upon the complexity of the case they handle. On the basis of the case the Prosecutors handles the remuneration is paid to the Prosecutors. On the other hand, the Prosecutors in France get handsome remuneration as good as the Judges. French Prosecutors are considered to be at par with French Judges. Due to better pay scales, better candidates join Prosecutorial jobs in France.

Page | 25

7. CONCLUSION AND SUGGESTIONS The Indian Adversarial and French Inquisitorial Model of Justice have elaborated the role of the Prosecutors in the respective legislative frameworks. The foundational approach and rationale of both the models is different. The principles behind governance of the Adversarial mode are to ensure Fair Trial. And on the other hand, the principles behind inquisitorial criminal justice pattern is finding of truth. In the light of natural justice, both the models of justice are for the protection of the innocent. In both, the criminal trial, the burden of proof lies on the prosecution. However, the extent of burden is much heavier in Adversarial Model compared to the Inquisitorial Model of Trial. Sometimes it leads to undue advantage to the accused. Under the protective shield of presumption of innocence, the accused can be over 184 protected. Unreasonable burden of proof on prosecution leads to unease for the prosecution to lead the cases effectively with enthusiastic approach. On failure of prosecution to prove the cases beyond reasonable doubt the accused gets benefit of doubt. This benefit of doubt is harmful for the future of law abiding and law respecting society as upon acquittal the same culprit can indulge in criminal acts. It may affect the peace in society. Hence, the demand made for heavy burden of proof is fatal for the future administration of justice. Defenders of the adversary system are quick to refute each criticism lobbed at it. They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury. They point out that lawyers, although as susceptible to corruption as any other group, are governed by a code of ethical conduct that, when enforced, deals effectively with instances of overreaching. And, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse.

BIBLIOGRAPHY WEBSITES: 1. www.legallyservicesindia.com 2. www.quora.com Page | 26

3. www.study.com 4. www.brightkite.com 5. www.lawteacher.net

Page | 27