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This Article is written by Harmanjot Kaur and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders) and Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). 


“No one can be guilty unless proved beyond a reasonable doubt.”

This is the cliché legal maxims at the start of law school or even CLAT preparation; and ends up only when we fly to a big corporate law firm, where all we do is merger and acquisition, or other IPR related jobs. In litigation, this is one of the most persuasive lines, which governs all the laws related to the Evidence Act and Criminal Justice.

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The former President of India, Dr R.Venkataraman also observed the present system[7]:

“The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in the 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”.

However, it is worth noting that there are two types of criminal justice systems; namely: an adversarial or an inquisitorial system of criminal justice. The Doha Convention lays some of the key features about this. In the following heads, we will discuss which system has India adopted and why we made such a choice. 

Which countries follow the inquisitorial system of criminal justice?

Countries such as France and Italy, as opposed to common law systems. They believe in the rigorous procedure of the inquisitorial system of criminal justice.

What are the crime rates in countries which adopt the adversarial system of criminal justice?

In the adversarial system, the jury acts as an independent referee, who would hear both the sides of the victim and offender and present his judgement through analytical legal reasoning. Afghanistan, India, Pakistan, South Africa, Wales, England, Australia and the United States of America have an adversarial system of criminal justice.

What are the crime rates in countries that follow the inquisitorial system of criminal justice?

Inquisitorial or accusatory system the judge is in a position to hold an enquiry about all the related offences. Here the judge himself investigates everything with the aid of the investigation team beyond reasonable doubts, to make the accused liable for the offence. It is more prevalent in France and other European countries like Germany, New Zealand, Italy and Austria.

Provisions regarding Article 20(3) in Indian Constitution

Article 20(3) talks about the system of self-incrimination. This means that no one can be made liable or asked to give any evidence against one’s own self. However, we see this in complete contrast with what plea-bargaining is. It is admitting that you were wrong by a criminal.

In the case of Selvi v. State of Karnataka, the court said that the NARCO analysis is inadmissible in the court of law. In the case of Amrit Singh v. the State of Punjab, the question was whether the accused who has committed rape was asked to take the hair string for the DNA analysis, amount to self-incrimination? The court held that in a narrower sense it may not be seen as a violation of Article 20(3). This can be compared to a hair string found nearby with other twigs or present near dried leaves of the crime scene. However, if a similar hair string has been taken from the hair scalp without the permission of the accused, by force, it may amount to self-incrimination.

Therefore, we see that the variation of the term ‘self-incrimination’ varies from case to case. It is a question of the facts and circumstances related to a particular case.

However, we see that there is a right to remain silent also present in the wider context of Article 20(3). There are areas where the accused has the right to remain silent and not admit his crime. Here, the police can investigate the crime scene. Later, the findings as evidence can help the courts to judge whether a person is convicted or not. 

Also, free legal aid and timely presentation before the courts is also crucial to secure the rights of 

the accused. Here, the landmark judgement of Joginder Singh vs the State of UP comes into play. Also, the reasonable period and reason for the conviction should be clearly mentioned. Furthermore, the aid and support from friends, family and legal support is the right of the accused which cannot be denied. The presentation of the case before the nearest magistrate is a necessity so that justice should prevail. This was held in the case of Babalal Desai vs the State Of Maharashtra.

Pros of the adversarial system of criminal justice?

Can encourage speaking truth

In the case of plea bargaining, there are chances that due credits are awarded to those who actually dare to speak the truth. Here there are chances where the term of the sentence can be reduced in one way or the other. This is dependent on the areas such as whether the person has a strong ethical background related to the need to speak the truth. 

In accordance with the traditional ethos of our culture

Indian society traditionally follows the pattern where speaking of truth is encouraged. Also, keeping an eye on the increased population in the Indian society, we see it as a viable option to speak the truth rather than to shy away from it.

Speedy way as compared to the inquisitorial system

The system is speedy as compared to the other counterpart. This is because of the fact that India has a very high population rate. This is true even after looking at the previous trends of the growing population and various surveys conducted worldwide.

Keeping an eye on the population of India, it was suitable

Looking at the comparative trend of the adversarial and inquisitorial system of justice, we see that the population of India is increasing at a tremendous rate. It is not feasible to actually go and think of the ways through which we can devise ways to incorporate the inquisitorial system and at the same time ignoring the area of India’s increasing population. Just trying to incorporate the new techniques won’t guarantee success. Similarly, it is necessary to see socio-cultural and economic backgrounds before finalizing a strategy.

Can put the parties into a position of negotiation

There are various ways such as compounding of offence, increase or the decrease in the cost of the fine or damages along the way. We should appreciate that the provision of plea bargaining does help the courts to speed up the process and decide whether a person is convicted or not. This puts the parties in a position to compromise the damages. 

Furthermore, the areas such as application of bail provisions, applying for it also becomes handy if the convict accepts his defeat. Here is also the most important provision of negotiation with anyone.

Also later, the convict can readily apply for pardoning, commutation and such related areas so that the president can grant them some relief for their truthfulness.

Position of Plea Bargain in an adversarial system of criminal justice

Plea bargaining was a special provision added on July, 5th 2008 in the Chapter XXIA of CrPC, 1973. This is a kind of pretrial negotiation between the accused and the prosecution. This is an alternative manner to deal with criminal cases. On one hand, where it prevents the rigorous process of trial and collecting evidence, on the other hand, it increases the speed of the justice system.

Limitations to the Plea Bargaining

Not applicable to conditions related to socio-economic offences of the country

Nitin Nagindas Hundiwala And And vs The State Of Maharashtra, 2019 states that plea bargaining is not applicable to the conditions which threaten socio-economic conditions of the country.

If the offence threatens the sovereignty of the constitution, unity and integrity of the people or creates communal violence; then such an act would be outside the purview of plea-bargaining. Similarly, in the case of sedition, crime against the Union of India such as hate speech promoting Naxalism, Terrorism etc.; plea-bargaining is not applicable.

It does not apply to the offences against women

If the crime committed is against a woman or a child under the age of 14 years, in that case, the provision of plea bargaining is not applicable.

It is not applicable in case the convict was previously accused of a crime

Under S.265B of CrPC Amendment 2005, an explicit provision is laid down, which states that this provision is not applicable in case when the accused was previously convicted of an offence.

It is not applicable against a habitual offender

In the case of State of Gujarat vs Natwar Harchandji Thakur, 2005 it was held that plea bargaining is not applicable in the case of a habitual offender.

It is not applicable against juvenile offenders

In the case of Girraj Prashad Meena vs the State of Rajasthan, 2014 it was held that Section 265L explicitly says that the provision of plea bargaining is not applicable in the case of juvenile offences as defined in Juvenile Justice Act, 2000.

Limitations of Plea Bargaining

However, merely the fact of mutually set dispositions, and in-camera proceedings as explained by Judicial First Class vs By Advs.Sri.Abu Mathew, 2016 is still a grey area as there is a scope of self-incrimination as explained by Article 20(3) of the constitution. Similarly, in the case of Joseph v. the State of Kerala, 2015 and Bala Dandapani v. The State of Kerala, 2016 it was observed that there were no formal in-camera proceedings related to the offence of Section 138 of Negotiable Instrument Act. This is a clear violation of Article 20(3) by using pressure tactics to admit the offence. Moreover, instances of false conviction and coercion related to death threats to the accused and the family can be observed, if not treated with due care and diligence. The scope of satisfactory disposition’ varies from case to case.

Which system is better: The inquisitorial or Adversarial system?

According to the strengths and weaknesses of the above systems, the data presented by International data on Crime and Justice, we see that there is an increased crime rate in the case of countries with adversarial systems. The world population review shows that in 2021 the top ten countries with high criminal activities are actually from Africa, the US, Oceania and Latin America. And all these States have these things in common.

  • A colonial past.
  • Adversarial System of Justice.
  • The increased population as compared to the EU and the countries with the inquisitorial system.
  • Materialistic and Goal-oriented lifestyle.

Which system was adopted by India post-independence for criminal justice

India adopted the adversarial system of criminal justice. This is due to its economical unsound position in the post-colonial era. Furthermore, with the increase in the population and speedy justice, it was a viable option to adopt the adversarial system. Also, the traditions of India talks about truth, non-violence, ahimsa. So, due to philosophical reasons, this system gives a chance to the offender to admit when he was wrong and seek mercy for the wrong deeds. Additionally, India is a land of diversity. There are instances where the Jainism philosophy of ahimsa was so stringent that they even sieve water before drinking. In Hindu philosophy, the idea of integral yoga by Aurobindo Gosh, which aims at the moksha of the entire community collectively was propagated. On the contrary, Sharia law advocates the philosophy of “an eye for an eye” which punishes the offender rigorously.

However, there are cases where India is quite stringent and even impose the death penalty. These are the crimes related to women, rape cases and offences against the sovereignty of the country.

The law is a form of ‘Social Contract’ among the people and the sovereign to govern them in a specific way. Hence, due to socio-cultural traditions and philosophy, India was more inclined towards the adversarial system of criminal justice.

How did India decide a way forward

India has experienced a long history of colonial past. However, looking at the thesis and antithesis of both the systems, India in this case also adopted a hybrid system of legislation. This is on the similar lines of the ‘Quasi-federal’ system as adopted by India as explained by KC Wheare. This can be termed as ‘Adquisitorial System‘ as some of the provisions allow plea bargaining and others are explicitly forbidden, keeping an eye on the integrity and sovereignty of the country. After all, it is truly said by J.N. Bhatt, J.: “A civilisation is judged by the way it treats its criminals.” 

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