Inquisitorial vs. Adversarial: Debating India’s Criminal Justice Framework

India’s criminal justice system processes millions of cases every year, yet over 3.3 crore cases remain pending in its courts. At the heart of the reform debate lies a fundamental question: is the adversarial system – the one India inherited from British colonial rule – still the best framework for delivering justice? Or should India borrow elements from the inquisitorial model used across continental Europe? This is not an abstract academic argument. It shapes how the accused are treated, how victims participate, whether truth gets uncovered, and ultimately, whether justice is truly served.

Two systems, two philosophies 🔗

The adversarial and inquisitorial systems represent two distinct approaches to the same goal: determining truth and delivering justice. Understanding what separates them is essential before evaluating which works better for India.

The adversarial system 🔗

The adversarial system (also called the accusatorial system) is the model followed in all common law countries, including India, the UK, the US, and Australia. In this model, justice is pursued as a contest between two opposing parties – the prosecution and the defence – before a neutral judge. The judge acts as an umpire, not an investigator. The prosecution bears the burden of proving guilt beyond reasonable doubt, and the accused is presumed innocent until that burden is discharged. The accused also has the right to silence, a protection guaranteed under Article 20(3) of the Constitution of India.

The core assumption is that truth will emerge naturally from the clash of two well-prepared sides. Each party selects the evidence it wants to present, examines and cross-examines witnesses, and argues its case – all before a judge who adjudicates rather than investigates.

The inquisitorial system 🔗

The inquisitorial system is the model followed in civil law countries like France, Germany, Italy, and several other continental European nations. Here, the judge takes a far more active role. The judge leads the investigation, questions witnesses, gathers evidence, and bears the responsibility of uncovering the truth – rather than leaving it to the parties. The process resembles an inquiry more than a contest. The underlying principle is that truth is too important to be left to the strategic interests of opposing lawyers.

Where the adversarial system is party-oriented, the inquisitorial system is judge-oriented. The difference is not just procedural – it reflects a deeper philosophical divide about what criminal justice is for: protecting rights, or finding truth.

India’s adversarial roots – and their limits 🔗

India adopted the adversarial system as part of its British colonial inheritance. The Indian Penal Code, the Code of Criminal Procedure (CrPC), and the Indian Evidence Act all built their foundations on adversarial principles. The system has real strengths: it protects the accused from state overreach, enforces rigorous standards of proof, and provides procedural safeguards that are essential in a democracy.

But these strengths come with well-documented weaknesses. The adversarial system is frequently criticised for prioritising “winning” over justice – where lawyers are incentivised to secure acquittals or convictions rather than uncover what actually happened. Hostile witnesses and witness intimidation consistently undermine truth-finding. The victim, paradoxically, is often reduced to a mere witness in a contest between the accused and the State. And the system’s procedural complexity contributes significantly to the massive backlog that clogs Indian courts.

As former President of India Dr. R. Venkataraman observed, the adversarial system stands opposed to India’s ancient ethos – where panchayat justice actively sought truth, unlike a system where the judge is concerned only with proof, not truth.

Inquisitorial elements that already exist in Indian law 🔗

India’s adversarial system is not a rigid one. Even within the existing framework, there are provisions that borrow from inquisitorial thinking – and courts have used them meaningfully.

Section 311 of the CrPC allowed a court to summon or re-examine any witness at any stage of proceedings. Section 165 of the Indian Evidence Act went further – giving a judge the power to ask any question, to any party or witness, at any stage, for the purpose of discovering truth. These two provisions worked together as complementary inquisitorial tools within an otherwise adversarial framework.

The Supreme Court has reinforced this approach in multiple judgments. In Suresh Chandra Jana v. State of W.B., the Court held that a court should not treat minor gaps in investigation as grounds to acquit the accused when that would obstruct truth. In Ram Chandra v. State of Haryana, the Supreme Court similarly stressed the duty of courts to discover actual facts. These judgments signal a judicial willingness to embrace truth-seeking – an inquisitorial value – even within adversarial proceedings.

The Malimath Committee: a call for balance 🔗

The most significant formal examination of this debate came from the Committee on Reforms of Criminal Justice System (2003), chaired by Justice V.S. Malimath. The Malimath Committee studied India’s adversarial system in depth and concluded that while it better protects the rights of the accused, it falls short in truth-seeking and victim protection.

The Committee did not recommend abandoning the adversarial system. It recognised that a fully inquisitorial model carries its own risks – particularly the danger of judicial bias, where the same judge who investigates also decides. Empirical research has shown that a completely inquisitorial system is susceptible to prejudice and bias, particularly when investigative and adjudicatory roles merge in one person.

Instead, the Committee made several key recommendations for integrating inquisitorial elements into the existing framework:

• Enhanced judicial powers: Courts should be able to independently summon evidence and witnesses.
• Duty to seek truth: Explicitly recognising truth-finding as a primary judicial responsibility, not an incidental one.
• Admissibility of police statements: Making statements to police officers admissible under defined safeguards.
• Pre-trial disclosure: Requiring the defence to disclose evidence before trial, preventing surprise tactics that obstruct justice.
• Victim participation: Giving victims a more meaningful role beyond appearing as a witness for the prosecution.
• Expanded plea bargaining: Using negotiated disposals to reduce the staggering case backlog.

What the new criminal laws say 🔗

In 2023, India enacted a sweeping overhaul of its criminal law framework. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaced the CrPC and came into force on July 1, 2024, alongside the Bharatiya Nyaya Sanhita (replacing the IPC) and the Bharatiya Sakshya Adhiniyam (replacing the Evidence Act).

Several features of the BNSS reflect a move toward greater efficiency and transparency that echo inquisitorial concerns – even if the system remains fundamentally adversarial. The BNSS mandates forensic investigation for offences punishable with seven years or more, with forensic experts required to visit crime scenes and record the process. Specific timelines have been set for investigation and trial. Audio-video recording of search and seizure is now mandatory. Trials may be conducted in electronic mode. These changes push for a more structured, evidence-centred process – addressing some of the adversarial system’s weaknesses around evidentiary reliability and delay.

However, critics note that several high-level committee recommendations – including codifying rights of the accused and reforming sentencing guidelines – were not incorporated in the BNSS, indicating that reform remains selective and incomplete.

What a hybrid model could look like for India 🔗

The debate in India is not really about choosing one system and discarding the other. It is about identifying which inquisitorial features can improve what the adversarial system currently does poorly – without sacrificing the constitutional protections that define fair trial rights.

Several countries offer instructive models. Italy transitioned from a purely inquisitorial system to a hybrid model in 1989, retaining judicial oversight while introducing adversarial trial elements. Japan combines adversarial trial procedures with inquisitorial pre-trial investigations. These examples suggest that different phases of a criminal proceeding can follow different principles – inquisitorial fact-finding during investigation, adversarial protections during trial.

For India specifically, a workable hybrid approach might include: giving courts a more proactive case-management role in pre-trial proceedings; appointing court-designated expert witnesses rather than relying on competing partisan experts; strengthening the judge’s power to direct evidence production where parties fall short; and expanding victim participation so that justice is not only a contest between the state and the accused.

Crucially, any such reform must be designed with India’s socio-economic realities in mind. A largely under-resourced judiciary, vast rural populations with unequal legal access, and deep power imbalances between the state and individual accused all mean that expanding judicial powers without adequate safeguards could harm the very people reforms are meant to protect.

The core tension that remains 🔗

At its heart, the inquisitorial vs. adversarial debate forces Indian criminal justice to confront a difficult trade-off. The inquisitorial system prioritises the search for truth, sometimes at the expense of the accused’s rights, while the adversarial system places more emphasis on the rights of the accused, including the presumption of innocence and the right to silence. Neither system delivers perfect justice. Both carry the risk of wrongful conviction or acquittal – just through different mechanisms.

What India needs is not a wholesale transplant of one system into another, but a thoughtful, evidence-based integration of the best elements of both – preserving the constitutional protections that make a fair trial meaningful, while giving courts the tools and authority to ensure that truth is not buried under procedural technicality or strategic obstruction.

What do you think? Should Indian courts be given more active, inquisitorial-style powers to summon evidence and question witnesses independently – or does expanding judicial authority risk compromising the fairness and impartiality that the adversarial system is designed to protect? And given India’s pending caseload and resource constraints, is a gradual hybrid approach realistic, or does it risk creating a system that does justice to neither model?

References

1. https://www.indialawjournal.org/the-power-of-judge-to-put-questions-an-exception-to-adversarial-justice-system.php
2. https://lawbhoomi.com/adversaria-system/
3. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023
4. https://www.ejusticeindia.com/adversarial-and-inquistorial-criminal-justice-system-a-compairtive-analysis/
5. https://www.ijlra.com/details/drift-or-shift-from-adversarial-to-inquisitorial-system-of-criminal-justice-in-india-by-charu-atri-
6. https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf
7. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-second-sanhita-2023
8. https://www.researchgate.net/publication/256034414_The_Adversarial_System_in_India_Assessing_Challenges_and_Alternatives