The adversarial system is based on the opposing sides acting as adversaries who compete to

convince the judge and jury that their version of the facts is the most convincing. The lawyers
are given free choice in terms of which issues are presented, what evidence to adduce in
support of their submissions and what witnesses to call. The judge presides over the trial and
rules on disputed issues of procedure and evidence, asking questions of the witness only to
clarify evidence, and concludes the trial by summing-up the facts for the jury and advising
them of the relevant law. It is not open to the judge in an adversarial system to enquire
beyond the facts and evidence that are presented by the opposing lawyers; his role is largely
passive; he is an impartial referee who advises the jury on matters of law.

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 all reasonable doubt that he is guilty. The accused also
enjoys the right to silence and cannot be compelled to reply. This right is guaranteed by Constitution
of India in the form of fundamental right1 and also a universally recognised right of the accused
under Art. 14 of the International Convention on Civil and Political rights.

In the adversarial system, the parties use cross-examination of witnesses to undermine the opposing
case and to discover information and other side has not brought out. Hence we can say that, parties
in the adversarial system enjoy a high degree of freedom of proof, which largely extends to the
manner in which witnesses are cross-examined. As the adversarial system does not impose a
positive duty on the judge to discover truth he plays a passive role. The judge neither takes part in
investigation nor gives any instructions to prosecution.

In the adversarial system truth is supposed to emerge from the respective versions of 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 doubt. The trial
is oral, continuous and confrontational. At the heart of the trial lies the principle of orality, which
provides that evidence should generally be received through the live, oral testimony of witnesses in
court.

The main feature of this system is that the accused is presumed to be innocent and it is the
responsibility of the judge to discover the truth.The statements of witnesses recorded during
investigation are admissible and form the basis for the prosecution case during final trial.

Advantages of Adversarial System :

1. It is seen as fair and less prone to abuse.

Those who support this system often argue that it is fairer and less prone to abuse than other
legal systems, as it does not allow any room for the state to favor against the defendant.
Instead, it allows private litigants to settle disputes in amicable means through pre-trial and
discovery settlements, where non-contested facts will be agreed upon to try not to deal with
them in the litigation process.
2. It properly observes the rights of the defending and prosecuting parties.

In this judicial system, an accused individual is given the right to remain silent, get a lawyer
to help him state the case and remain innocent until proven guilty, which is a crucial aspect in
the outcome of the case. As for the prosecution, they are also allowed to present facts as they
interpret and understand them. Another thing is that the government is advised on all criminal
matters.

3. It allows both sides to support their positions.

The adversarial system allows both parties to present witnesses and evidence to support their
positions, where they can cross examine witnesses, independently analyze evidence and
challenge arguments. The objective here is to present all the facts for the benefit of the jury
and the judge in deciding what really happened and who should be held responsible.

4. It provides power to the police.

In this approach, the police play an essential role in the path to justice, where they are the
ones who will run the investigation while adhering to certain conditions, such as presenting a
warrant. They cannot detain an accused individual without proper arrest.

5. It does not promote bias.

The jury and the judge are expected to remain impartial—after all they are chosen using
criteria that are designed to get rid of people who might be biased in a certain case. Basically,
this system presents the contest to individuals who do not have interest in the outcome and
can evaluate the facts objectively. However, this system can become complicated, where
lawyers on both sides can use rhetorical, but legal, strategies to influence opinion that can
affect the outcome of the trial.

6. It hears the stories from both sides.

Generally, this system does not allow the Judge to comment until both sides are heard,
making him less biased and lessening the possibility of public protest to the verdict.

Disadvantages of Adversarial System

1. It obliges each side to contest with each other.

The adversarial litigation approach is sometimes criticized for setting up a system where
sides on a case are required to contest with each other. This is believed by critics to
encourage deception and other questionable legal tactics, as the objective is to win at all
costs, instead of evaluating the facts to learn the truth.

2. It might lead to injustice.

Critics point out that a lot of cases in an adversarial system, especially in the US, are actually
resolved by settlement or plea bargain, which means that they do not go to trial, leading to
injustice especially when the accused is helped with an overworked or unskilled lawyer.
Also, they argue that this type of system causes the participants to act in perverse ways,
encouraging defendants to plead guilty even when they think otherwise and prosecutors to
bring charges far beyond what is warranted.

3. It might result in judgments compelled by arguments, instead of evidence.

In this system, the discovery with evidence rests upon the lawyers who work for each side,
with the better one having better chances to win the case. But is the jury is involved, the final
decision might be swayed by the most compelling arguments, instead of solid proof.

4. It has issues with accessibility.

One criticism of an adversarial system that is very difficult to refute has something to do with
accessibility. It cannot be plausibly argued that average defendants can enjoy the same access
to legal representation as the wealthy and influential defendants, which is the same with the
part of the plaintiffs. However, supporters explain that such unequal access resulted from
social and economic conditions, not the structure of the judicial system, adding that altering
the way of delivering legal services would do nothing in addressing the root causes of such a
disparity.

5. It uses a tedious process.

It is also said that the adversarial form of legal system is slow and cumbersome, where the
judge—who acts as a neutral fact finder—could only do little to hasten the trial process, not
to mention that the evidentiary and procedural rules can slow down the process further. In
addition, the wide availability of appellate reviews would mean that a final decision can be
made for years, though at least one research has shown that some courts discouraged holding
adversarial trials and making active settlements. However, litigants in this approach are still
encountering substantial delays in reaching a resolution. And while this disadvantage is true,
supporters still argue that the slow methodical system is needed to protect individual rights.