While there is no let up to the controversy on the appointments of Special Public Prosecutors by the Delhi Police versus the Government of National Capital Territory, we will focus on the larger systemic issues that plague prosecution in India.
Prior to the Criminal Procedure Code (CrPC) of 1973, which made a clear distinction between the powers and functions of judicial and executive magistrates, crimes were prosecuted by prosecutors under the control of the Superintendent of Police. Remember what Lewis Carrol wrote in Alice in Wonderland?
‘I’ll be judge, I’ll be jury,’ said cunning old Fury!
This arrangement was fine for a colonial State – but an enigma in a democratic polity, where it was felt that the prosecution function had to be independent of the investigation agency. The Law Commission reports of 1958 and 1969 recommended the establishment of an independent prosecution agency. As a first step in this direction, Section 25 of CrPC provided that the state government shall appoint Public Prosecutors from a panel of names recommended by the District Magistrate and the District Judge.
But all was not well.
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How to hire public prosecutors
Progress across states was not uniform. In some states, notably Uttar Pradesh, the consultation with the District Judge was dispensed with altogether. Public prosecutors were on contract and paid a pittance per case compared to defence lawyers, even as their professional growth trajectory remained unclear. Many of them were taken on account of local political patronage. The conviction rate plummeted under the new arrangements—no one was in direct control—although technically, the prosecution function was added to the long charter of the overworked District Magistrates.
Earlier, in 1976, the UP government had been pulled up by the Allahabad High Court: ‘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 This view was endorsed by the Supreme Court in 1995.
In 2003, the Justice Malimath Commission was appointed to look into the entire gamut of criminal justice administration. It recommended a competitive examination for a regular cadre of prosecutors, and the creation of a Directorate of Prosecution in every State to facilitate effective coordination between the investigating and prosecuting officers. This led to an amendment of the CrPC in 2005, empowering the states to implement the recommendations. The idea was that in the long run, the practice of hiring public prosecutors on contract should give way to selection of prosecutors (as well as District Attorneys on the civil side) from competitive examinations.
In 2007, eminent jurist and founder of the National Judicial Academy, Madhav Menon recommended the establishment of a National Academy for Prosecution, where all entrants were trained – both at the time of induction, as well as for their mid-career progression and specialisation. The prosecution academy has yet to see the light of the day.
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Caesar’s wife is suspect!
Meanwhile, many state governments made amendments to Section 24(6) of the CrPC to appoint public prosecutors (PPs) and special public prosecutors (SPPs) in addition to those appointed by the state governments through the Public Service Commissions (PSCs) in gross violation of the spirit of the 2005 amendment.
As Chitrakshi Jain and Aditya Ranjan, researchers with Vidhi Centre for Legal Policy, point out, “APPs who practise in Magistrate’s courts are selected by the Public Service Commissions, PPs in the Sessions Court can also be taken from a panel recommended by DM and the DJ. However, what takes the cake is the appointment of SPPs in high profile cases at such terms as the government may decide” The provision of appointing SPPs under sub section 8 of Section 24 of CrPC was in the nature of an exception, but many state governments use this to circumvent the normative procedure. Even if the ends of justice are met, in public view, they appear to be performing a partisan function. Caesar’s wife is certainly suspect!
In letter, but not in spirit
Although a Directorate of Prosecution has been set up in states, there are no clear norms about the hierarchy as well as the professional autonomy and budgets. In this context, an extract from the European Union’s Resolution on Public Prosecution is pertinent: “the organisation of most prosecution services is based on a hierarchical structure. Relationships between the different layers of the hierarchy should be governed by clear, unambiguous and well-balanced regulations. Prosecution services should be enabled to estimate their needs, negotiate their budgets and decide how to use the allocated funds in a transparent manner, in order to achieve their objectives in a speedy and qualified way.”
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Ear to the ground
Over the last few weeks, I have discussed this issue with serving judicial officers in three states besides police officers and prosecutors in another four from across India. The report from the ground is that while conviction rate is dismal, the blame is unfairly placed on prosecutors who are just one link in the chain. Their voice is muted by the police, administration, and judiciary as well as the political leadership, which is looking only at ‘conviction rates’. In fact, the attempt to force prosecutors to vet ‘charge sheets’ is neither ethical, nor practical.
What, then, is the solution? First, as per the recommendations of the Prakash Singh Committee, the investigation function should be independent of the law-and-order commitments of the police. Training of police officers also needs to move from the physical to the cerebral, because in the day and age of cybercrime, police officers and their supervising officers must be well acquainted with both technical and legal aspects.
Second, the practice of appointing special public prosecutors without reference to any panel, or even public prosecutors from a panel comprising the District Magistrate and District Judge, should have a sunset clause, say the 75th year of the Republic, by which time states should conduct a competitive examination and those who are recruited as assistant public prosecutors should be promoted as PPs, SPPs and finally as directors of prosecution.
Last, but not the least, the time has come to recognise the right of victims to be compensated for their physical, emotional, and financial suffering, besides their right to implead themselves in the prosecution. These are elements of the ‘people centric’ review of India’s criminal laws (IPC, IEA and CrPC), based on which Union Home Minister Amit Shah sought the views of state governments, High Courts, Bar Councils and universities on 31 December 2021. One hopes that we can move towards a bipartisan consensus on these issues that are so fundamental to making India a rule-based society.
Sanjeev Chopra is a historian and Festival Director of Valley of Words. Till recently, he was the Director of the Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.
This article is the fourth part of the ‘State of the State‘ series that analyses policy, civil services, and governance in India.
(Edited by Neera Majumdar)