Dr. Justice V.S. Malimath Report First pages - Ministry of Home Affairs

23
ADVERSARIAL SYSTEM _
2.1. The primary responsibility of the State is to maintain law and order
so that citizens can enjoy peace and security. Life and personal liberty being
very precious rights, their protection is guaranteed to the citizens as a
fundamental right under Article 21 of our Constitution. This right is
internationally recognised as a Human Right. Right to property which once had
the status of a fundamental right in our Constitution is now relegated to a
constitutional right under Article 300A of the Constitution. Many times
deprivation of right to property
leads to invasion of personal
liberty. The State discharges the
obligation to protect life, liberty
and property of the citizens by
taking suitable preventive and
punitive measures which also
serve the object of preventing
private retribution so essential for
maintenance of peace and law and
The State discharges the obligation to
protect life, liberty and property of the
citizens by taking suitable preventive
and punitive measures which also serve
the object of preventing private
retribution so essential for maintenance
of peace and law and order in the
society.
order in the society. Substantive penal laws are enacted prescribing punishment
for the invasion of the rights. When there is an invasion of these rights of the
citizens it becomes the duty of the State to apprehend the person guilty for such
invasion, subject him to fair trial and if found guilty to punish him. Substantive
penal laws can be effective only when the procedural laws for enforcing them
are efficient. This in essence is the function of the criminal justice system.
2.2. The system followed in India for dispensation of criminal justice is
the adversarial system of common law inherited from the British Colonial
Rulers. 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. In the adversarial system truth is supposed to emerge from the
respective versions of the facts presented by the prosecution and the defence
before a neutral judge. The judge acts like an umpire to see
whether the prosecution has been able to prove the case beyond reasonable