A comparative study on Indian and French Prosecution System

By B.Pandey, LLB (Student at Amity University), 3 July, 2020, 09:52 PM


When it comes to comparing and understanding two different sets of law systems then it is very important for us to understand the guiding principles and rationale behind those law systems. An insight into these guiding principles/codes would not only enable us in better understanding the differences between the two different sets of justice systems but also appreciate the advantages of certain provisions of one law system over the other. The French criminal justice is based on the French criminal code which is “Code de procédure pénale” and the highest court i.e. the Supreme Court is “Cour de cassation” and their criminal justice system follows inquisitorial procedure for justice delivery. Our comparative analysis of the two distinct criminal prosecution systems is based on the study of types of justice systems. Broadly speaking there are two types of justice systems i.e. adversarial justice system and inquisitorial justice system. When we closely look into the differences between these two different countries and their justice delivery systems then we can easily come to a conclusion that the actual difference between two of them is based on the type of justice system being followed in these two different beautiful nations.  To continue from where we begin let us just discuss about the types of justice systems.


Types of criminal justice systems

As already discussed in our introduction there are mainly two types of justice systems i.e. Adversarial Justice System and Inquisitorial Justice System. There are however other types of justice systems as well like the retributive system, but, we are limiting ourselves to the study of these two system only because of the subject matter in question relates to only these two. Our study is confined to the comparative analysis of justice systems of France and India, so in order to not digress from the concerned topic we are confining our study to these two systems only. According to “The Doha Declaration” of the United Nations Office on Drugs and Crime an adversarial system is system in which “the prosecution and the defense compete against each other and the judge acts as a referee between the two, and the legal rules of procedure followed”. According to Britannica in an adversary procedure it is required that the opposing parties bring out the important facts which are pertinent and also examine and cross examine the witnesses.  All the Common law countries follow the adversarial system for their justice delivery or adjudicatory process. Now, if we look into the nature of an inquisitorial system then we’ll notice a contrasting difference between the two. An inquisitorial system is typical of a country which bases its justice system mainly on civil or the Roman law. In an inquisitorial system the indictment is under the control of the judge and prior to the beginning of trial. Procedure for pretrial hearing is only to ensure if the person so framed for a crime as an accused is prima facie an accused or not before the charges are framed against him. It is done in order to protect an innocent person from falsely being framed as an accused in a criminal matter. Moving further let us just look at our justice systems in question within the framework of the above discussed procedures i.e. adversarial justice system and the inquisitorial justice system. Without the understanding of the two probably we would not be able to appreciate the differences and the advantages of the one over the other. The differences between adversarial and inquisitorial will also be discussed critically in the later part after we have understood the differences in prosecution system of both of these geographically separated countries in our very next section.


Indian Prosecution System

Indian penal system is primarily based on three set of laws i.e. The Indian Penal Code, 1860, The Code of Criminal Procedure, 1973, and The Indian Evidence Act, 1872 popularly known as IPC, CrPC and IEA respectively (and used as such hereinafter). If we look into the common features of them all then we would come to a conclusion that each one of them has something in common which are also complementary to the provisions of the other two Codes. Each of them has following as common feature i.e. giving of a notice or framing of charges, recording prosecution’s evidence, statement of the person accused, evidence from the side of defense, a final argument and lastly the judgment itself. Now, as to the question whether the Indian system is inquisitorial or an adversarial is concerned, then there is no doubt that it is mainly an adversarial system but it also has features of inquisitorial procedure. For the same reason it is also sometimes termed as hybrid. To understand how inquisitorial system is also a part of this adversarial system we have a very nice example of Section-205 of the CrPC wherein the discretion has been handed over by the Code to the Magistrates to dispense with the personal attendance of the accused if “he has the reason to do so”.  In other words a Magistrate can rely on his good conscience in dispensing with the personal attendance of the accused. However the same cannot be done in strictly adversarial system. Although inquisitorial system leaves a window to deny justice in some cases but it largely gives confidence to the citizenry that no one would be accused without a sufficient cause. In simple words inquisitorial system is flexible and gives more discretion to the judges in reaching their judgments and that too without limiting them to follow stricter rules of that of an adversarial system.  Section-211 of CrPC is another such example which reflects the adversarial nature of the Indian criminal prosecution system. It states that “every charge under this code shall state the offence” which not only wants the prosecutor to strictly adhere to the procedure but also no such word is used in this section so that it is not misunderstood for granting any discretionary power while during the formation of the charges. Similarly the term “reason to believe” as defined under Section-26 of the Indian Penal Code, 1860 has been used in various Sections of the entire code to signify the flexible nature of the criminal justice system. Although at the very first look the Indian Penal Code, 1860 gives an impression of an stricter Code like that of an adversarial procedure found in Common law, but by using terms like “reason to believe” it has made itself more of a hybrid procedure i.e. a synthesis of both stricter and a liberal procedure all thanks to the vision of Lord T.B. Macaulay and other successors in his position. So if we have to conclude into answering the question regarding type of Indian prosecution system then we can safely say that Indian criminal justice system is mainly adversarial but is also a blend of both adversarial and inquisitorial procedures.


French Prosecution System

To understand the type of criminal justice system existing in France we first need to understand several features of the criminal trial in France. To start with we have procedures like arraignment wherein the charges are read out to the defendant and he is asked whether he wants to plead guilty or not guilty. If the defendant pleads guilty then the judge sentences him as done in any adversarial system. But if he/she pleads not guilty then the judge has to decide the date for the next step. Now, if we see the release conditions in the French justice system, the defendant after the arraignment has to be released if there is no objection from the prosecutor. Also the objection has to be reasonable and failing it would only mean that the defendant will be released. This is so because the French also give preference to the principle “innocent unless proven guilty”. Also the proceedings starts only if during the preliminary inquiry there is sufficient evidence to believe that the crime has been committed by the defendant. The trial does not even start in French courts if there is no sufficient reasoning which establishes the guilt of the defendant.  There are two important components here which result into a trial. Firstly there should be enough evidence against defendant. Secondly, it must be proved that the defendant’s guilt is beyond reasonable doubt. As against the Indian justice system if during the preliminary inquiry the prosecution fails to satisfy the judge with these two conditions then there cannot be any charges framed against the defendant. The charges are dropped in such a scenario at the preliminary inquiry. However, during the trial if the evidences are insufficient then the accused is acquitted and the judgment is delivered. However, it is again to be noticed that even before sentencing and passing the judgment the judge may ask for presentencing report if he deems fit or else he will proceed and award the sentence without any presentencing report.


Critical Analysis of Adversarial & Inquisitorial Procedure

In an adversarial system there are several shortfalls like “innocent unless proven guilty”, “benefit of doubt”, and “individual rights” on account of which criminals get away. Also the lawyers are required to fight for their clients and it becomes responsibility of the lawyers to protect his client by any means. In doing so lawyers more often than not try to downsize the evidences going against their clients, the other times they also seek to destroy all the unfavorable evidences against their clients which ultimately leads to false or wrong interpretation which goes in favor of a criminal. Not only this but to delay all the procedures for gaining favorable evidences parties take too long intentionally in presenting themselves. In an adversarial system another drawback is that the decision maker is completely dependent on the parties and has to take the evidences into account which are presented only by the parties. This leaves a limited scope for the decision maker to deviate from the rule books. Again the police administration also sometimes cannot find the sufficient evidences against the accused and in such a scenario the criminal is released free of any charge. So we can imagine how an adversarial procedure sometimes stands as hurdle in a larger goal that is the prevalence of truth and justice.

       In an inquisitorial system things are much different but still there are certain shortfalls in this system as well. No system is perfect in itself in this world and an inquisitorial system is no different. The shortfall here is the “courts’ power to interrogate and inquire” at the very initial stage. During this initial stage the court can develop favorable or unfavorable biases with respect to the parties which are not desired in a system which wants to deliver on the part of “justice” as a value. The immense discretionary power given to judges and the magistrates at the initial stage is unnecessary. Let us just imagine a system wherein the magistrates and judges have enough power to dismiss the case even before the trial has started. Such is the case with an inquisitorial system. The judge has enough discretion to dismiss the matter even before it has actually started which by any means cannot be justified. This scenario in a developing nation like India particularly would not just prove disastrous at large but would also undermine the values of natural justice. To reach such type of an outcome with respect to India is easy because for India the social disparity and income differences between the masses is huge and the rich would only abuse law in such a scenario. Contrastingly this system has worked out well in the French society as there is not that much of social disparity in France when compared to India. What India needs to do is to adopt the inquisitorial system partially that too cautiously and there have been repeated requests by the bodies like Bar Council of Delhi with respect to the same. As a complementary procedure to the already existing adversarial procedure it would not just help in achieving our higher goal of justice delivery but would also make the justice delivery system more efficient which would in turn save a lot of time caused by unnecessary delays in the process of getting justice.



If the purpose of justice delivery is that the case needs be decided in favor of one party or the other then any of the abovementioned systems would let us do so. But the pursuit for achieving justice as a goal is much higher. A step by step procedure must be followed so that crime must not go unpunished. It is for the system to deliver upon the aspirations of the victims in order to protect them and increase the confidence of other citizens in the justice delivery system of their nation. The pursuit of both these system is for the ‘fair trial’ and whereas on one hand they are heavily criticized for their distinct characteristics, on the other they are still prevalent forms which are being followed widely in pursuit of these higher goals by different nations.

        In an adversarial system the crime is considered to be against the State and the matter ultimately becomes the State vs. The Party. In an inquisitorial system the victim is also considered to be a party. So, it is clear that adversarial system has sufficient amount of edge over inquisitorial system. Some basic principles like “right to be heard” are denied to the defendant in an inquisitorial system at the preliminary inquiry as a matter of fact. This is not so in the case of an adversarial system wherein the accused during the trial is considered as an “accused” during the trial and he is presumed innocent unless his guilt has been proven beyond reasonable doubt by the prosecutor.

        So to conclude we can give preference to the procedures of one system over the other but the truth of the matter is that no system is perfect by itself and intellectual exchanges should definitely take place between different systems. Keeping our system in a cocoon and not letting it grow with the adoption of new methods and procedures would only deprive us of achieving higher ends of justice. The best thing to do is to introduce the best practices of one system in the already existing system of ours and give meaning to justice delivery system in some substantial and real sense. In the end of it a hybrid procedure is always a wiser option to adopt which is nothing but a culmination of best practices of all the procedural systems. On one hand it gives a positive feedback loop which enables the lawmakers to better understand the shortfalls and loopholes in the existing system so that they can promptly correct it. On the other hand it serves the purpose of getting justice delivered right in time and when it is needed the most.


European Judicial Network, France, Info about national systems, https://www.ejn-crimjust.europa.eu/ejn/EJN_InfoAbout/EN/273  

UNODC, Adversarial versus inquisitorial legal systems, Organized Crime, https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-systems.html

Adam Augustyn et al., Adversary procedure, Politics, Law & Government, https://www.britannica.com/topic/adversary-procedure

Adam Augustyn et al., Inquisitorial procedure, Politics, Law & Government, https://www.britannica.com/topic/inquisitorial-procedure

Ashish Bhan and Mohit Rohatgi, Legal System in India: overview, Thomson Reuters, https://uk.practicallaw.thomsonreuters.com/w-017-5278?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_anchor_a525960   

The Code of Criminal Procedure, 1973, No. 2, Act of Parliament, 1974 (India).

The Indian Penal Code, 1860, No. 45, Act of Parliament, 1860 (India).

Nirnimesh Kumar, Need inquisitorial system of trial in sexual assault cases, The Hindu (Jan. 26, 2020, 00:31 AM) https://www.thehindu.com/news/cities/Delhi/need-inquisitorial-system-of-trial-in-sexual-assault-cases/article30654907.ece