by Smriti Parsheera
The criminal justice system consists of four main components - police, prosecution, prisons and courts. These agencies are collectively responsible for apprehending, prosecuting and sentencing offenders, keeping in view the interests of the accused, the victims and the society at large.
The little data that is available about the workings of the system in India, at present, paints a grim picture. At the end of 2012 there were 18.82 million criminal cases pending before subordinate courts. Disposals and institution of new cases during the year led to a marginal decline in the figure to 18.56 million in 2013. Data from the Crime Records Bureau shows that there were 9.7 million serious criminal cases pending under the Indian Penal Code in that year out of which the trial was concluded in 1.2 million cases with a conviction rate of 40.2 per cent. Only a small fraction of the pending criminal cases are geting decided each year. Of the ones that do get decided, a majority of the verdicts in serious criminal cases do not support a conviction. A combination of factors contribute to this situation - defects in investigation techniques, inefficiency of court processes, poor quality of prosecution, delay tactics used by the parties, insufficient coordination between the agencies and absence of a framework to protect victims and witnesses, which often results in them turning hostile.
The performance of the prosecutorial wing has a direct bearing on the pace as well as quality of justice being rendered by courts. Often referred to 'ministers of justice' and 'gatekeepers of the criminal justice process' (197th report), public prosecutors (PPs) represent the interests of the state before the courts. Under Indian law, the prosecutor's role comes into play after completion of the investigation and once the matter has been admitted before the court. A lot has been legitimately said about the responsibilities of PPs and their duty to act in an impartial, truthful and fair manner. But these expectations need to be weighed against the ground realities in which the prosecution system operates. Problems in the selection and training of PPs, their poor service conditions and lack of independence and supervision have all led to prosecution being branded as the "weakest link of the criminal justice system".
The subject of prosecution falls under the concurrent list of the Constitution. This has induced difficulties in consistent nationwide reforms. States have used their authority to formulate rules for the appointment, conduct and remuneration of PPs. Recent developments include the introduction of an e-Prosecution system in Madhya Pradesh to streamline and manage the workflow of PPs in the state, and a slew of changes announced by Maharashtra to boost their conviction rates. These include a number of positive steps such as measures for securing greater independence for the Directorate of Prosecution (DoP) and evolving a court monitoring system for better coordination between the prosecutor, the investigator and witnesses. There is also a suggestion of allowing the police to have a direct say in the appointment of PPs, which goes against the well established principle of independence of the prosecution from police control.
This is, hence, a good time to think about and debate fundamental questions about the independence and accountability of prosecutors and their relationship with the other state agencies. Better knowledge can help shape and strengthen the reforms of Madhya Pradesh and Maharashtra, and help other states better navigate their own reforms of prosecution.
Structure and independence of prosecutors
The Code of Criminal Procedure (CrPC) speaks of four categories of prosecutors - PPs and additional PPs; assistant PPs for magisterial courts and special PPs who may be appointed under exceptional circumstances. Appointment of PPs and additional PPs at the district level can be done in two ways - 1) on tenure basis from a panel prepared by the district magistrate in consultation with the sessions judge; or 2) from a regular cadre of prosecutors maintained by the state.
Both methods have their pros and cons. The former makes it possible to attract the best talent from the bar while allowing judicial officers who have direct insights on the competence of those lawyers to have a prominent say in the matter. However, the extent to which this happens in practice is suspect, given the vast difference between the earnings of a successful defence counsel and a PP. Panel appointments are also criticised for lack of accountability as appointments are for a fixed tenure, generally three years, and tend to be more susceptible to political interference. The CrPC was amended in 1978 to address these issues by introducing the concept of cadre appointments. States that maintained a "regular cadre of prosecuting officers" were required by the law to treat that as the only source for appointment of PPs. The idea was that a new breed of salaried PPs would replace all empanelled prosecutors. This would improve accountability and create promotion opportunities for prosecutors in the permanent staff.
The proposal for exclusive cadre appointments, however, turned out to be a non starter. First, the Supreme Court interpreted the term "regular cadre of prosecuting officers" to mean a permanent prosecution cadre encompassing all levels, starting from assistant PPs and going up to the PP at the top. This is not the case in most states - cadre appointments are generally restricted to the level of assistant PPs. Second, a number of states passed local amendments to dilute the requirement of mandatory cadre appointments. Some of them have also done away with the need for consultation with the sessions judge for panel appointments thus giving full control to the executive. In 2006, the Prime Minister's office raised concerns about these developments and their consequent scope for arbitrariness. The Law Commission responded by indicating its preference for a combined appointment process - 50:50 split between Bar members and assistant PPs selected from the regular cadre. The Malimath Committee had also expressed the same view. A decade has passed since these recommendations, and implementation has not taken place.
The appointment process of assistant PPs for magisterial courts is more straightforward. It is generally done through a direct recruitment exercise conducted by the state public service commission. Before the enactment of the CrPC in 1973, prosecutors working at this level used to function under the control of the police.
In many cases, police officers themselves used to act as prosecutors. This blurring of lines between the prosecution and police was problematic on may counts. It was observed by the Law Commission that the police had a tendency to focus on securing convictions, which made it difficult for them to exhibit the degree of detachment found necessary for the role of a prosecutor. In the words of the Law Commission: “In undertaking the prosecution the State is not actuated by any motives of revenge but seeks only to protect the community. There should therefore be an unseemly eagerness for, or grasping at a conviction. A public prosecutor should be personally indifferent to the result of the case. His duty should consist only of placing all available evidence irrespective of the fact whether it goes against the accused or helps him, in order to aid the court in discovering the truth.”
Section 25 of the CrPC fixed this by explicitly stating that police officers would not be not eligible for appointment as assistant PPs. In doing this, the legislature recognised the importance of independence of the prosecution from the investigative arm of the state, a demarcation that has also been emphasized by the courts.
Sometimes the complexity or gravity of a case may justify a more experienced lawyer to handle the prosecution. Section 24(8) of the CrPC recognizes this possibility by empowering the government to appoint a special public prosecutor (SPP) for a specific case or a class of cases. The appointment of a SPP amounts to a deviation from the general norm (of using PPs) and is therefore resorted to only under special circumstances and only and only when public interest so demands. Many times, the request for appointment of a SPP may come from the victim of the crime, but the law as laid down by the Supreme Court makes it clear that such requests cannot be granted on a routine basis. The application for appointment of a SPP has to be properly examined by the government - in most cases through the Remembrancer of Legal Affairs in the state - and should be granted only after being satisfied that the material on record justifies the need for a SPP. It has also been clarified that even though the request may have been initiated by the complainant the costs of the SPP are to be borne by the government.
Relationship with the government
PPs are appointed by the government, but the duty cast upon them is to represent the interests of the State and not the government of the day. Prosecutors who are wholly dependent on the executive for their tenure and appointments may find it hard to maintain this distinction. This is illustrated by the reshuffling of posts which seems to happen with every change in government. The problem becomes all the more stark in cases involving corruption, violence by state agencies or other instances where people close to the government find themselves on the wrong side of the law. For instance, while ordering a retrial in the Best Bakery case the Supreme Court noted that no credibility could be attached to an acquittal that is based on tainted evidence, tailored investigation, unprincipled prosecution and perfunctory trial. The court found that through selective examination of witnesses and mishandling of evidence, the PP had "acted more as a defence counsel than one whose duty was to present the truth before the Court".
Section 321 of the CrPC gives the PP the power to withdraw any case from prosecution with the consent of the court. This leads to the discharge/acquittal of the accused. The wording of the law and its interpretation by the Supreme Court makes it clear that the discretion to withdraw from prosecution is that of the PP and none else. The Government may suggest a withdrawal to the PP but cannot compel her to do so. It is the duty of the court to consider if the PP has applied her mind "as a free agent, uninfluenced by irrelevant and extraneous considerations". Yet it is often reported that prosecutors act on the directions of the government. This again raises concerns about the lack of independence from the executive.
One way of addressing this is to entrust the appointment and monitoring of PPs at all levels to an independent DoP. Most states have already set up their own DoPs but these bodies are not really independent. For instance, the head of the DoP does not have a statutorily prescribed term of appointment that would allow her to function freely from the government. DoPs are also not entrusted with control over the appointment process of PPs. The vision and organisation design of DoPs varies across states. To take an example, the DoP manual for Delhi speaks of the duty of the prosecution to secure justice for victims of crimes, and to extend support to the state in maintaining law and order. The guiding policy in Maharashtra is "To secure maximum conviction in criminal cases in all courts", which explains the nature of changes being adopted by the state. Practices also differ on where the DoP is placed - under the home department or the law department; who heads it - judicial officer, bureaucrat (Haryana), prosecutor (Delhi) or police officer (Tamil Nadu) and the scope of the DoP's powers. In a feeble effort to streamline these systems, the CrPC was amended in 2005 to say that the state governments may establish a DoP to be headed by an experienced advocate who should function under the administrative control of the state's home department. The benign wording of the provision, and the concurrent nature of the subject, have ensured that states continue to exercise their discretion on whether or not to have a DoP and what form it should take.
International practice
Unlike the Indian system where the prosecutor has little or no say till a case has been filed before the court, most other jurisdictions regard the decision on whether or not to prosecute as one of the core responsibilities of a prosecutor. In addition, prosecutors also tend to have some role to play in the investigation stage although the scope of their intervention varies across jurisdictions. The United States is an example of a country where the prosecution plays a dominant role in the working of the criminal justice system. At the federal level, a set of US Attorneys working under the US Attorney General are responsible for trial in criminal and civil cases before federal courts. They initiate prosecutions in cases and also have the authority to request investigative agencies to conduct investigations in suspected violations. In fact the attorneys can also use the grand jury process to conduct an investigation on their own.
In addition, each US state has its own State Attorney General who is in most cases an elected representative. All the State Attorneys are members of the National Association of Attorney Generals, a coordinating agency that facilitates inter-state cooperation and conducts policy research and training programs for attorneys and their staff.
This presents a useful model that can be emulated in India. The heads of the DoP or whichever body is in-charge of prosecutors in each state can be members of a body created as a forum for regular exchange of ideas among prosecutors. This will help in articulating the issues faced by them which are often common across states and finding appropriate solutions. It can also be used to create a mechanism for specialised training of PPs from across the country.
In England the Crown Prosecution Service (CPS) serves as the principal prosecuting agency. The CPS is a statutory body headed by a Director of Public Prosecutions, who works under the overall superintendence of the Attorney General. Their role is to advise the investigation authorities, decide on which cases are to be prosecuted, and to frame the charges in more serious cases. To facilitate better cooperation with other government agencies, the CPS has entered into comprehensive agreements with the police association and the prison authorities that set out their respective responsibilities for appropriate handling of crimes. Accountability and transparency in the functioning of the office is maintained through the publication of detailed annual reports, business plans and evaluation reports.
The way forward
Independence, both from the police and the government, is essential for the efficient discharge of the prosecutor's functions. This calls for the creation of a strong DoP in every state that is both operationally and financially independent. Some of the ways to do this are by statutorily providing for a transparent appointment process for the head of the DoP, a fixed term of service and clear process of removal for cause. The functions of the DoP should also be clearly articulated in the law to cover the appointment, evaluation and training of PPs and allocation of work to them. In addition, improvements of remuneration and working conditions are required so as to improve the talent pool.
The legislature should act on the recommendation of having 50:50 tenure and cadre appointments for PPs and additional PPs. The DoPs can then be tasked with the duty of evolving the evaluation criteria for the empanelment and selection of PPs from the bar and the regular cadre. In doing so, the DoPs must look at performance measures that go beyond mere conviction rates. Some of indicators that may be considered include time taken in the completion of trials; role in causing any delays in the process; conduct in plea bargaining cases; feedback of victims and witnesses; and participation in professional training programmes. In order to achieve all of this, states need to give the DoP the capacity to operate independently and the budgetary capacity to deliver on these promises. Corresponding accountability measures are required, to assess the performance of the DoP and ensure proper utilisation of resources.
There is a pressing need for better coordination between the investigation and prosecution wings. The DOPs can manage this interface with the police through a formal coordination mechanism that will enable the police to seek legal advice from the prosecution prior to the framing of charges even though they are not statutorily bound to do so. The prosecution will also benefit from police assistance in the production of witnesses and evidence before the court. The goal should be to strike a fine balance between the independence and interdependence of the two agencies.
Acknowledgements
I thank Nandkumar Saravade, Pradnya Saravade and Raja Thakare for valuable discussions.