Public prosecution - in need of reform

The work of human rights activists within the criminal justice system generally tends to be simplified into that of protecting the rights and interests of the accused. While that is true in a large number of cases, such a simplification does not take into account the role human right activists play in ending impunity and seeking justice. Thus, while on the one hand the activist may be involved in defending an accused person in one case (E.g. Gilani trial, Godhra accused, etc.), s/he may be seeking justice and assisting in the prosecution of the accused in other cases (Bilkis, Best Bakery etc).

This is not a contradiction, but the result of the manner in which power operates within the justice system. Often where influential persons are the accused, there is little interest within the system in prosecuting those cases. However where the victims are powerful and the accused belong to marginalised communities of caste, class, sexual orientation, economic status etc, the prosecution of cases is a given. This situation ensures that the relationship between the prosecutor and the human rights activist is of dual nature, although almost always troubled and strained.

The role of the public prosecutor

The present criminal justice system is based on the principle that any crime committed by an individual is a crime against the societal order. The prosecution and punishment for the crime is therefore the responsibility of the state, and not that of the victim of the crime. It has been argued that this responsibility - where the state acts on behalf of the victims - limits the scope for vengeance and revenge. Such prosecution, on behalf of the state (and therefore society) is performed by a public prosecutor (PP) appointed by the State. The PP is required to play an impartial and neutral role and prosecute all persons who have been charge-sheeted by the police. However given the power-play discussed previously, and the vast political and economic forces that influence the government, it is obvious that the PP faces tremendous pressure, not only from the state but also powerful elites who attempt to influence the prosecution.

Although the PP is appointed by the State, the prosecutor's sole aim is not seek a conviction. A number of court judgements have emphasised that the PP is a 'minister of justice' who should place before the court all evidence in the PP's possession, whether in favour of or against the accused. This is seen as proper prosecution, as opposed to single-minded persecution in seeking a conviction regardless of the evidence.

The prosecution system in India

With 'law and justice' being a State subject, there is no uniformity in the structure of public prosecution in India. In a large number of States the boundary between the investigation agency and the prosecution is blurred. This adversely affects the impartiality of the PP since the police could control the prosecution. In a few States where the prosecution is headed by a senior police officer, the boundary completely collapses. This system continues presently in Uttar Pradesh and Tamilnadu, despite doubts about its legality in light of a number of Supreme Court rulings as also the upcoming CrPC Amendments, 2005.

Although the Law Commission in 1958 had recommended the setting up of a directorate of prosecution (DOP) with its own cadre such a recommendation was not adopted in the Criminal Procedure Code of 1973. Therefore while some States have created the DOP, others have not (Arunachal Pradesh, Mizoram and Gujarat). Furthermore, in States which have DOPs too, there are differences. In Goa, the DOP covers the High Court, Sessions Courts and the Magistrate's Courts. In Delhi, Karnataka, Himachal Pradesh and Orissa, the DOP excludes the High Courts. In a number of other States including Andhra Pradesh, Tamilnadu, Uttar Pradesh and Uttaranchal, the DOP extends only to Magistrate's Courts and Session and High Courts are excluded and prosecutors are appointed on tenure.

The impartiality of the PP is directly dependent upon who controls the prosecution agency (DOP or otherwise). For instance, in Arunachal Pradesh and Mizoram the prosecutors function directly under the police. In some other States the DOP is headed by a Police officer. In a large number of States the DOP is controlled by the Home Department (which also controls the police) while in Goa and Karnataka; it is the Law Department which controls the DOP. The appointment of prosecutors is also important, as this is an area where the executive can exercise its influence over the justice system. Although there are a number of rules and requirements for the appointment of PPs, these are often overridden by the executive who would much rather have their preferred choice as 'ad-hoc' appointees.

Prosecution and the Police

Various courts have held that the prosecution and the police are completely different agencies and neither should control the other. Simply put, the prosecution cannot be part of the investigation and the police cannot direct or be part of the prosecution. During the investigation stage, and till the filing of charge-sheet, the investigating agency is in control of the proceedings. Once the charge-sheet has been filed in the court, the PP takes over. However given that both are to play complementary roles in the justice system, it is clear that there needs to be an effective and efficient working relationship between the two agencies, e.g. the advice of the PP can and should be sought by the police before filing the charge-sheet. This working relationship, however, cannot be an argument for control of the prosecution by the police - a situation that existed till 1973 when the Criminal Procedure Code was amended.

Prior to independence there was no requirement for the PP to be a lawyer, and the posts were generally held by police officers. This system worked in a colonial state where the prosecutors were crucial in suppressing and criminalising the struggle for independence. Various reports of the Law Commission in 1958 and 1969 recommended the setting up of an independent prosecution agency. While this was not completely heeded by the Government, in the new CrPC w.e.f April 1974, the PP was required to be an advocate with a minimum of seven years practice.

The end of the practice of police-prosecutors also led to a landmark judgement by the Allahabad High Court in Jai Pal Singh Naresh v. State of Uttar Pradesh (1976 CrLJ 32). In this case the Court quashed a UP government order placing the Assistant PPs under the administrative and disciplinary control of the Superintendent of Police and the Inspector General of Police. The Court observed that the very aim of creating prosecutors outside the police was to ensure independence and this could not be achieved if the police retained such control of the prosecutors. This was subsequently endorsed by the Supreme Court in SB Shahane v. State of Maharashtra (AIR 1995 SC 1628).

Not all, however, were happy with the changes brought about. A number of reports of the state Police Commissions and the fourth National Police Commission argued that independence of the prosecution reduced the power of the police and led to a decline of convictions. Similar arguments have also been made by recent reports on the prosecution system in Orissa and West Bengal. The infamous Malimath Committee, set up by the NDA government to overhaul the justice system, also recommended that the DOP be headed by a senior police official.

Prosecutors themselves, on the other hand, do not appear to support moves to place the agency under the control of the police. It is clear that there is a need for more effective co-ordination between the two agencies for the smooth functioning of the justice system. However the blurring of the line between coordination and control, while convenient for the police, is harmful to the functioning of the justice system in general.

Prosecution and the Executive

The prosecution agency also faces pressure from the executive in a number of ways. An extreme case is Arunachal Pradesh, where the question of autonomy and independence of the prosecution is redundant as there is not even the constitutionally required separation between the executive and the judiciary. For instance the Deputy Commissioner is also the Ex Officio District and Sessions Judge.

In other States where the judiciary and executive are independent of each other, appointment, security of posts and tenure are methods by which the executive seeks to control the prosecution. Even where the appointments made are not 'ad-hoc', there are a number of ways in which the executive can ensure that the prosecution is reliant on it. Vigilance on administrative issues relating to appointment and security of posts as also the nature of the posts - tenure or cadre, is therefore a crucial tool in protecting the autonomy and independence of the prosecution.

The relationship between the investigation, prosecution and the executive received the Supreme Court's attention in the Jain Hawala case (Vineet Narrain v. Union of India, 1998 (1) SCC 226). In this case the bureaucrat-politician-criminal nexus had used all means necessary to thwart the investigation and prosecution of corruption cases by the Central Bureau of Investigation. The Court monitored the progress of these cases and passed detailed directions on the functioning of various agencies involved and even warned the minister in charge to avoid interfering with the investigation and prosecution.

Political interference can also take a more direct form - ensuring withdrawal of cases. Under Section 321 CrPC the public prosecutor has the power to withdraw a case at any time before the judgement is pronounced. There is no clear indication in the CrPC however as to how this power is to be exercised. Case law has indicated that while the power to withdraw can be exercised by the PP only on the request of the State government or complainant, the decision whether to withdraw or not is only that of the PP and cannot be delegated to any other - including the State government.

Prosecutors, police officers and defence lawyers however insist that in reality, the PP has no role in deciding on withdrawal of the case and it is the executive that decides on the withdrawal. Given the control of the executive over the security of the posts, it is obvious that the PP has little defence against the executive. An excellent example is the withdrawal of criminal charges in the Bhopal gas leak case. In that instance the Union of India arrived at a settlement with the Union Carbide Corporation under the aegis of the Chief Justice of India. It is unlikely that there was any independent 'application of mind' by the PP in charge of the criminal case before withdrawal from the prosecution.

The role played by the executive in thwarting prosecution following communal violence situations too has raised concern. For instance, after the 1984 anti-sikh carnage in Delhi, the Congress government was unwilling to appoint lawyers with integrity and experience to prosecute those cases. The role of the Shiv Sena-BJP government after the 1992-93 Bombay riots too is damning. Only cases registered against Muslim rioters proceeded at great speed with no witnesses turning hostile. In almost all other cases, especially those where policemen were charged, there was no interest amongst the prosecution and the executive. In one case where the former Commissioner of Police of Mumbai was the accused, the Magistrate pulled up the prosecutor on the ground that he was representing the prosecution and the accused at the same time.

Any doubt of executive interference was removed after cases relating to the 2002 genocide in Gujarat came up in courts in the State. While the Supreme Court has taken notice of some of the blatant irregularities in some of the cases, other cases from Gujarat are languishing. In the prominent Best Bakery case, the Supreme Court unprecedentedly ordered a retrial in Maharashtra virtually indicting the BJP government in Gujarat for interference in cases.

Another area where the executive exerts influence on the PP is in filing appeals and revisions. Here again the PP is supposed to take direction from the executive and then apply an independent mind. However in practice the decision is taken completely by the executive with the PP only playing a forwarding role.

Special Public Prosecutors

Section 25(8) of the CrPC provides that the Central or State government may appoint a special public prosecutor (SPP) for any case or class of cases. Provisions for appointment of SPPs are also found in special legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The appointment of a special public prosecutor is a vexatious issue. It is often said that because of this provision the executive has little interest in reforming and improving the prosecution system as a whole. In politically sensitive and important cases where the executive needs a conviction to take place, it appoints a leading lawyer as SPP, instead of relying on the poorly paid and often leaky prosecution that it has created. Thus it is no surprise that regular prosecutors - whether cadre or tenure, display considerable resentment against appointment of SPPs. They argue that if the prosecution was given proper facilities, training and incentives there would be no need to hire lawyers from outside the prosecution agency.

While the system of appointment of SPPs plays a negative role for the development of prosecution agencies of the whole, in the present position SPPs also offer a small space for human rights activists to lobby. Thus in important cases of communal violence etc. activists have sought the appointment of progressive lawyers as SPPs. Similarly in cases where violations have been carried out by police or other security personnel or where the accused are close to the state machinery, the appointment of SPPs has been a consistent demand from the human rights community.

The need for change

Given that prosecution of crimes in conducted by the state on behalf of victims, it is astonishing that the justice system provides little space for the victim. At present the victim's role is recognised only to the extent that s/he is a prosecution witness. Even here the large number of victim-witnesses turning hostile is testament to the harassment and intimidation they face within the system. Another space where victims can form part of the prosecution process is by appointing a lawyer to assist the prosecution. While the victim's lawyer has a wider role in the Magistrate's Courts, this is far reduced in the Sessions Courts where s/he must act under the direction of the public prosecutor.

One much-needed change is the need for a Victim and Witness service (VWS). This service would allow the PP to maintain autonomy and integrity and yet provide a direct bridge to the victim-complainant through such a paralegal service. Given that trials continue over a long time, the delays caused create problems with witnesses' memory failing. The involvement of prosecutors at this stage often leads to accusations of tutoring. The presence of an independent VWS could also play this vital role in ensuring fair trials.

The prosecution service is part of a legal system that faces pressure not only from the fascist and communal forces that have grown in the last two decades, but also the dictates of globalisation and structural adjustment. Notions of 'public good', 'national security' are constantly being redefined, marginalising more groups of people than ever before. Even outside of these circumstances, class, caste, patriarchy and other biases affect the functioning of the legal system, the criminal justice system, and the prosecution.

Where the accused are part of the state machinery or in collaboration with it, these issues get further magnified. The role of the prosecution in the future will be tested particularly in how it deals with such cases under pressure from the executive. There is no doubt however that a number of steps need to be taken before that to ensure that the prosecution service can even attempt to resist this pressure. This includes providing adequate facilities, fair appointments and ensuring job security. This, with greater autonomy from both the police and the executive will allow the prosecution to be more successful. This success must not however be measured in terms of convictions, but instead by observing whether an independent and autonomous prosecution can act to facilitate a culture of rights by ending impunity and initiating action against powerful sections of state and society that violate the law.