(I am delighted to present what will hopefully be a series of posts by Mr. Divyang Thakur. Mr. Thakur has been working as a Public Prosecutor for three years in Delhi, and was practising law across trial courts in Delhi before that. The views expressed here are entirely personal.)
Previously, I introduced you to the role of prosecutors in the Indian criminal justice system. This post takes the conversation forward, and it offers my take on the structure of Prosecution Departments and the reality of a prosecutor’s everyday work in the trial court. Please note that I can only speak from the vantage point of my experience working in the National Capital Territory of Delhi, and it may well be that some of what I say is inapplicable for other parts of the country.
The Department of Prosecutions
The structure of prosecution departments underwent dramatic change with amendments in 2005 to the Criminal Procedure Code 1973 (Cr.P.C.). As a result of these changes, each State has today a hierarchy of lawyers which broadly goes like this:
Director of Prosecution → Chief Prosecutor → Public Prosecutor / Additional Public Prosecutor / Assistant Public Prosecutor.
However, unlike, say, a law firm or a corporation, this hierarchy exists mostly for administrative purposes. Thus, a Chief Prosecutor cannot direct an Assistant Public Prosecutor to prosecute a case in any particular manner. For instance, he cannot direct the Assistant Public Prosecutor to file an application for leading additional witnesses (Section 311 Cr.P.C.). In this hierarchy, only Public Prosecutors need to be trained and licensed lawyers, and it is not uncommon for State Governments to appoint non-lawyers to senior posts in the Prosecution Department.
My experience is of someone who has worked at the lowest level of this latter, and these officers are the ones going to court. The main work in trial courts is conducted by Assistant Public Prosecutors (APP) and Public Prosecutors (PP). The only difference between them is that while an APP prosecutes cases in the Courts of Metropolitan Magistrates (for the sake of convenience any reference to the Metropolitan Magistrate includes Judicial Magistrate First Class), a PP prosecutes cases in the Court of Sessions — the latter court takes up more serious crimes only, while the former is the court where all kinds of cases take place. But while a PP can appear and prosecute cases in the Court of the Metropolitan Magistrate, the APP cannot appear before a Court of Session, not even as a substitute. Note, though, that not all prosecutors are given the charge of a specific Court; many are appointed to give legal advice on a variety of issues and do not appear in court at all.
Before moving on, a mention must be made of the “Naib Court”. This name is used for an official, generally a Constable rank Police Officer, who works as a Subordinate to assist prosecutors in Court. Assistance here means everything that a junior advocate might be expected to do for his senior – handing him the files, briefing him on the witnesses etc.
The Setting in which Prosecutors Work
Lack of adequate physical infrastructure has been a problem that has plagued the work of prosecutors for decades. Today, even in the NCT of Delhi, some prosecutors are working without the following essentials: (1) A proper workspace (called a “chamber” in legal parlance); (2) A library, let alone a well-stocked one; (3) Stationery.
Thankfully, in recent years due to the intervention of the Hon’ble Delhi High Court, several welcome steps have been taken in the right direction within the NCT of Delhi, and hopefully, these problems will soon go the way of the dinosaur. Even as I write this, steps are being taken to provide a decent sitting and working space as well as a decently stocked library. I, for one, can say that proper research tools, case law databases, laptop and internet are being provided to prosecutors free of cost. However, it is my understanding that Delhi is the exception instead of being the norm in this regard.
We keep hearing about states failing to hire judges to deal with cases, but surprisingly little mention is made of the poor facilities for prosecutors, as if they are irrelevant to this conversation. Such notions are incorrect and extremely unfortunate, because in our system of justice we need prosecutors to prove a case, and by not providing them the basic tools is equal to an expectation that they can do so with one hand tied behind their back. The next time you read about low conviction rates or about the poor quality of prosecution work in India, do take a moment to think about this.
The Prosecutor’s Work in a Trial Court
In my previous post, I had argued that a prosecutor is not a “Sarkaari Vakil” in the actual sense of the word, because he is an officer of the court and not sworn to defend the government’s interests. That goes to how the prosecutor must discharge his duties. But what are these duties? These are, mostly, similar to the kinds of duties any lawyer would have towards a client in a civil or criminal case.
A reasonably reliable guide to identifying the different tasks of a prosecutor is looking at the daily list of business for a court, which we call a “Cause-List”. The Cause-List for a Metropolitan Magistrate’s Court will have at least around thirty items on any day, which are divided into different heads. A prosecutor will be involved in all of the cases filed by the State, which is roughly around 90% of the List. Now, this Cause-List is only reflective of work to be done in the pre-lunch session of the day. In most courts, a second Cause-List is prepared for the work to be done post-lunch, which also requires prosecutors as it involves things such as bail hearings and applications for release of property.
So, on a single day, what all does a prosecutor need to take care of?
- Miscellaneous Appearance: This involves cases that do not fit into any of the other headings. Usually, cases that are at the stage of cognizance, or have been listed for any compliance with procedural requirements are posted here.
- Bail: Cases deciding whether or not a person, arrested and currently in custody, should be released.
- Charge: Cases deciding whether a case should proceed to a trial and recording of evidence or not.
- Prosecution Evidence / Defence Evidence: Recording of evidence in a trial.
- Final Arguments: The stage after all evidence is recorded, where parties convince a court to give a verdict in their favour.
- Judgment and Sentencing: The verdict of acquittal or conviction. If a person is convicted, then a separate hearing takes place to decide the appropriate punishment
- Work After Lunch: Senior Prosecutors often joke that this is when the real work of a prosecutor begins. After lunch, prosecutors start scrutinising the chargesheets that the police are proposing to file and holding discussions with the concerned Investigating Police Officer. Other than that, the Prosecutor has to prepare reports of the cases in which the accused has been acquitted / convicted / discharged, or cognizance has been declined and make the decision of whether to appeal or not, and prepare the necessary memorandum of appeals / revision etc.
Unfortunately, beyond the difficulties posed by inadequate physical infrastructure, human error etc., the context in which prosecutors operate also makes it very difficult for them to discharge their duties. Why? Out of the many different tasks identified above, around 80% of the prosecutors’ time is invested in recording of evidence (see also, this). Naturally, this results in a lack of time to discharge other duties and affects the quality of the work done. But what makes things worse is the inefficiency surrounding the process of recording evidence, which means that even though prosecutors invest 80% of their time towards this, the output is far from satisfactory. To understand why, let us spend some time understanding the process of recording evidence in Indian criminal courts.
During investigation, the police records statements of persons to prove different facts. Several years later, these persons are summoned as witnesses at trial. On an average day, in any Court, around 15-20 witnesses will be summoned for different cases. Many are lay persons and have probably never entered a courtroom before and are in unfamiliar surroundings. Since prior interaction with witnesses is not permitted in our system, it means that these persons remain disconnected from the case for years and suddenly, one day, are served with a summons to appear. They come to court, apprehensive and suspicious of their surroundings, no longer vividly remembering what happened and what they had said earlier. A harried Naib Court shows them what the police had earlier recorded as being their statement, often in an indecipherable Hindi scrawl, and commands them to be prepared with their statement.
Then comes the actual recording of evidence, which is not done in the Legal Drama style (be it Indian or Western). The Cr.P.C. requires that the Judge records evidence, which makes for a system where lawyers ask questions, witnesses reply, and then the Judge dictates this exchange for the stenographer to record (either as a narrative or in the style of a Q&A). Now, having seen the Cause-List, we know that judges and prosecutors have a lot of other work to do, and they must do it quickly because of the countless edicts to conduct Speedy Trials. This means that evidence is recorded at the same time as other tasks are happening, with the court managing other tasks while prosecutors take charge of the evidence recording. Thus, witnesses are placed in the hands of the same officials they are suspicious of, which makes for a real ham-fisted setting. As a result, even though 80% of a prosecutor’s time goes into recording evidence, the quality of output is much below-par.
Besides affecting the quality of evidence, this balancing-act where courts end up recording evidence while doing other work also affects the effort that prosecutors can invest in the other work being done in court. Concerned with recording evidence and freeing the witness, which is a reasonable goal, the prosecutor cannot engage with the arguments of an accused to make an effective rebuttal and assist the court. The fact that our system places an irrational amount of importance on oral arguments as opposed to written briefs worsens this problem.
All this brings us to our present reality, in which prosecutors end up shouldering much of the burden to process cases, but thoughts about their welfare are still seemingly irrelevant to conversations about improving the health of our criminal justice system.
Conclusion and Next Post
In this post, I have raised many issues that prosecutors face in trial courts and how the context in which they operate affects the discharge of their duties. Flowing from this, the next post will be dedicated to address one issue which I think lies at the heart of many others, and can make or break the criminal justice system of this country and by implication our Constitution: Who should decide whether to prosecute or not prosecute a case?
We know that the police decides to file the chargesheet. But in the next post, I will argue that it is the prosecution department which must be entrusted with this task and have the last word in filing the chargesheet. I will further argue that in fact it is essential that the prosecutor is involved in the investigation prior to the final preparation of the chargesheet, and propose that it is high time that our country decided on standards to be met before deciding to arraign a person as an accused. The recent experience in Prashant Kanojia’s case reflects the seriousness of the problem facing us. If a person can be arrested and remanded to custody in such a manner, then something fundamentally broken, and we must fix it.
(PS: I would like to thank Abhinav for his edits and inputs on this post)