Adversarial System

mThe adversarial system in India: Assessing challenges and alternatives

Index: 1. 2. 3. 4. 5. 6. 7. 8. 9. Introduction: India and the Adversarial System Understanding Criminal Justice Processes Adversarial system - Preliminary concerns The Supreme Court’s criticism of adversarial by-products Justice Malimath Committee Report on the adversarial system Problems external to adversarial by-products A problem-solution mismatch An empirical sample comparison of the two systems Conclusion

Introduction: India and the Adversarial System: For the process of criminal justice, the Criminal Procedure Code1 prescribes to the adversarial system based on accusatorial method. The responsibility for the production of evidence is placed on the party that seeks to establish guilt with the judge acting as a neutral referee between the opposing parties, both of which are allowed to introduce evidence and crossexamine witnesses. By contrast, in an inquisitorial trial system responsibility for the production of evidence at trial is the job of the trial judge and it is the trial judge who decides upon the relevance and preference of probable witnesses and permissions to both parties to ask questions to the witnesses. This system of criminal trial assumes that the state, on one hand, by using its investigative agencies and government counsels will prosecute the wrongdoer who will have equal opportunity also take recourse to challenge and counter the evidences of the prosecution.2 However, India’s criminal justice system is not strictly adversarial. Some provisions in the Criminal Procedure Code discount the adherence of the adversarial trial system in the interest of justice. Inquisitorial elements:

1 2

Hereinafter also referred to as ‘the Code.’ th K.N.C. Pillai (ed.), R.V. Kelkar’s Criminal Procedure, at 336 (5 edn.).

Electronic copy available at: http://ssrn.com/abstract=2147385

While the adversarial system requires the magistrate to remain an observer of the trial, it...