When the exception to a rule becomes the norm, the problem is indeed acute.
Fast-track courts are meant to be the exception. But when they are increasingly applied to categories of cases that have caused public outrage — such as POCSO cases and recruitment/examination scams — it shows that something is indeed amiss.
A related point is that targets can be met only when they are established. Whether it is the coverage under Kisan Credit Cards, which is monitored by NABARD, or the measurement of learning outcomes through the ASER report, periodic reviews give an idea of whether progress is on expected lines or if there is a need for mid-course correction.
Under the Centre’s Fast Track Special Courts scheme for rape and POCSO cases, each court is expected to dispose of at least 165 cases a year. But for cases in the regular court system, there is neither a timeline nor any milestones, nor a discussion on how the backlog will ever be cleared.
The tripod of criminal justice rests on three legs — investigation, prosecution and trial. The CBI and the police, with its specialised wings such as the CID and vigilance directorates, constitute the investigation wing. They usually have the resources, infrastructure, clout and limelight, as well as a regular system of review by the respective DGP and Home Department.
Likewise, in the case of district and chief judicial magistrate (CJM) courts, the High Courts monitor case disposal and conduct sample checks on the quality of judgments. There is an annual register of inspection by High Court judges, and they also interact with members of the Bar Association to get general feedback on the professional conduct of the presiding officers.
However, compared to the investigation and the trial wings, the prosecution wing is often left in limbo.
Also Read: IAS & IPS officers have repeatedly been caught in exam scams. Tougher laws alone won’t work
Prosecution as the forgotten farrier
Neither the media, nor the mandarins of civil society, nor think tanks connected with governance and police reforms, nor the manifestoes of political parties have looked into this critical link between investigation and trial.
It is true that the principle of separation of the prosecution wing from the police has been reinforced by two Supreme Court judgments — SB Shahane v. State of Maharashtra (1995) and R Sarala v. T.S. Velu (2000). These deal with the distinct roles, independence and separation of powers between the police (investigation) and the prosecution (trial).
In SB Shahane, the court held that prosecutors cannot be subordinates or functionaries of the police department; they require administrative and structural independence to ensure unbiased trials. In R Sarala, the court held that the police cannot be compelled by courts to treat prosecutors as co-investigators or seek their vetting prior to concluding an investigation and submitting a police report.
However, we are now left with a situation in which the prosecution set-up in most states is bereft of political direction, administrative oversight, cadre management, career progression, essential infrastructure and financial contingency.
Let me recall a medieval aphorism:
‘The wise tell us that a nail keeps a shoe, a shoe keeps a horse, a horse keeps a knight, and a knight, who can fight, keeps a castle.’
It means that it is not just the handsome knight and valorous cavalryman, but also the humble farrier (the ironsmith who keeps the horseshoe in shape) that determines the outcome of a battle. In other words, every element in the ecosystem must be in fine fettle — for bravery without armour and strategic direction is often mired in sub-optimality.
Here, the judiciary is the handsome knight, the police is the cavalryman, and the prosecutor is the farrier — least paid and often ignored till the horse starts to limp, and sometimes not even then.
We see this overlooking of the prosecution wing in the Constitution itself.
While Articles 214 to 231 deal with the High Courts, the organisation and functioning of subordinate courts fall under Articles 233 to 237. The All India Services — of which the IPS provides leadership to state police forces and the CBI — are covered under Article 312. The issue of separation of the judiciary from the executive was widely debated in the Constituent Assembly and ultimately found reference in Article 50, a Directive Principle of State Policy.
However, provisions relating to the appointment of prosecutors are found only in the CrPC (now the BNSS).
The First Administrative Reforms Commission (ARC) did not comment on this except in general terms. The issue was, however, examined by several Law Commission reports, the National Police Commission and, more specifically, the Second ARC— about two decades ago, it recommended a District Attorney system to strengthen prosecution and improve coordination between investigation and prosecution.
Additionally, the 2005 amendment to the CrPC provided for the establishment of a Directorate of Prosecution under the state Home Department.
The woes of public prosecutors
As things stand today, most states have established a prosecution directorate. But Assistant Public Prosecutors (APPs) and Public Prosecutors (PPs) at the district level do not feel any real connect with the labyrinthine Home Department, which is so focused on the urgent that the important is often relegated to the sidelines.
They are an aggrieved lot for while cadre prosecutors conduct cases up to the level of CJM, the prosecutors for district courts are from a contractual panel. In several states —notably UP, MP, Bihar — only lawyers aligned to the ruling dispensation are said to be preferred. This was precisely the reason for which a regular cadre was proposed. The states which have taken effective steps on this include HP, Kerala and Delhi.
The state home secretaries must review the functioning of the district prosecutors and interact with them to understand the ground realities.
In the course of writing this column, the cross section of APPs/PPs I spoke with confirmed what I knew anecdotally — they are dependent on the police SHO for practically everything: office stationery, photocopying, travel and miscellaneous expenses on interaction with witnesses. Let the prosecutors have a contingency fund, and let the Prosecution Director’s name be included in the list of invitees to government functions.
Also Read: India’s paper leak laws have a long history. So do tardy probes & indifferent prosecution
A cue from the CBI
Before closing this series, let me compliment the CBI, the special courts tasked with their cases and their in-house prosecution wing for a much better track record. We have to ask — what does the CBI have in its DNA which the state police does not?
For one, they deal only with investigation, and they have their own prosecution wing. On the other hand, the Investigating Officer in a typical police station deals with a plethora of tasks — from VVIP visits, protocol duties, law and order, verifications, and of course investigation of crime.
The Supreme Court’s directions in the 2006 Prakash Singh v. Union of India case on the separation of law-and-order and investigation functions at the police-station level have yet to be implemented.
To improve the quality of investigations, it may be advisable to shift the focus of training of police officers from the physical to the cerebral. Last but not the least, why not increase the intake of law graduates in the police to ensure that the case diary, forensic reports and evidence on record is in alignment, and the prosecutor gets adequate material to present in the court? After all, the presiding officer is bound to decide the case on the basis of the evidence, cross examination and the relevant sections of law.
One hopes that the interest generated in fast-track courts in the context of recruitment scams leads to the long overdue structural reforms in the criminal justice administration of our country. For, as they say, every dark cloud has a silver lining.
This is the final instalment of a series on recruitment scams and why laws and special courts have failed to curb them. Read the other articles here.
Sanjeev Chopra is a Senior Fellow at the Centre for Contemporary Studies, Prime Ministers Museum and Library (PMML), New Delhi, where his Fellowship topic is Borders, Boundaries and Bluewaters of Bharat. Views are personal.
(Edited by Asavari Singh)