Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. Jennison v. Baker

India is a country which holds a rich history of criminal jurisprudence. Dating back to the time of Manu, till advent of western jurisprudence, India has witnessed tremendous changes in methods of administration of justice. As a gift of common law, India adopted an adversarial approach to deliver justice which continues even today. But with change of time, the criminal justice system in India has lost its charm, the lacunae have erupted, people have started to lose their confidence on it and thus arises a need to revive the true spirit of criminal justice system.

A country’s criminal justice system is a system of law enforcement which directly involves in apprehending, prosecuting, defending, sentencing and punishing those who are guilty of criminal offences. A state’s primary duty is to maintain law and order in the society and to protect the life and liberty of citizens. In India, we have an adversarial approach of criminal justice system which has its roots in common law. In such system, the burden of proof lies totally on the prosecution and unless it is proved there is always a presumption of innocence of the accused. Not only this, the accused holds right to remain silent. Any decision would be concluded on the basis of facts established and evidences produced, and judge can make no additional inferences. Thus in such a system there is no positive duty on judge to find the truth and he plays a passive role. As a matter of fact, the judge in his anxiety to be neutral takes no initiative of his own to discover the truth and even if there are aberrations and lacunae in investigation, he doesn’t correct them. This method of justice delivery has several loopholes. Mostly the accused escapes the conviction because of faulty investigation, failure of prosecution to prove guilt beyond reasonable doubt or inordinate delay and the plight of the victims remains unnoticed. Because of several maladies the confidence of people on the Indian justice system has eroded tremendously.

The other form of criminal justice administration is inquisitorial approach which prevails in France, Germany, Italy, etc. Such system gives power to the judge to deliver a fair decision. Here the evidence against the accused is gathered in a neutral manner. The judicial police officers investigate and draw documents. An important feature of the Inquisitorial System is that in respect of serious and complex offences investigation is done under the supervision of an independent judicial officer and the Judge of Instructions who for the purpose of discovering truth collects evidence for and against the accused. They properly investigate the case, issue warrants, direct search, examine witness, arrest accused etc. The trial judges are inquisitors who actively take part in fact finding inquiry. They question the defence, prosecution and witnesses. They even order the examination of evidences. This system has been widely appreciated throughout the world because unlike adversarial form, there are higher conviction rates. There is a provision in the Criminal procedure code under section 311 which provides that judge of trial court is empowered to summon any person, at any stage, in any proceeding, if his evidence appears to be essential for just decision of case. Though just like in inquisitorial system, it gives power to judge to initiate an action on his own but in true spirit this provision remains a dead letter.  Rarely any judge or magistrate summons on his own and ultimately it depends on the prosecution to prove the guilt of accused. If he fails, the accused is acquitted regardless of his guilt.

In Nellore v. Intna Ramana Reddy the court opined that ‘every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. In India, truth is a cherished ethos since ages immemorial. It is that pillar of criminal justice system which must always stand high. For common man truth and justice are used synonymously and if truth fails then justice automatically fails. But can we say that truth is kept at highest pedestal in our criminal justice system? With this form of judicial administration, the answer cannot be assertive. Dr.R.Venkataraman, Former President of India had observed that, “the adversarial system is the opposite of our ancient ethos. In the Panchayat justice, they were seeking the truth, while in adversarial procedure, the judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”. Adversarial system is a narrow view to the role of trial judges. Law should speak through judges. But if the judges themselves remain silent, can justice truly prevail? A law ministry paper on strengthening the criminal justice system says pending serious criminal cases have increased from 2.1million in 2009 to 2.8 million in 2014, and in 58% cases tried in 2014, the accused was either discharged or acquitted. The measure which may be taken to curb this includes assignment of “more pro-active role to the judges to give directions to the investigation officers and prosecution agencies and leading evidence with the object of seeking the truth and focusing on justice to victim”. The judicial officers must be trained to appreciate the nuances of the law.

Ascribing to our current system, judges must become active truth seekers. The quality of investigations will improve if there is someone to oversee its correctness. The judicial procedures shall be simplified further by bringing in a synergy between the vital units- the police, prosecution and judges/magistrates. With this our system would become more efficient, faster and people friendly. Our country needs a radical change in criminal justice system. The adversarial system cannot sustain individually and it’s not possible for India to make a complete transition into inquisitorial system, hence the features of both the systems can be clubbed together. This as a result would bring a sound, effective and efficient system. It is the duty of state to ensure that that the guilty is punished and innocent is protected and to uphold this golden rule, a reform in Indian criminal justice system is the need of the hour.

Jhankruti Badani

Student, LL.M., M.N.L.U.