(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.)
The Supreme Court of India has said that the Public Prosecutor is a “minister of justice” To say that such epithets are inadequate as guidance to a prosecutor who actually wishes to understand his place in our Criminal Justice System, is to understate it. This is an introduction to what I hope will become a series of entries exploring the Criminal Justice System from the viewpoint of a Public Prosecutor in India.
A few disclaimers: I cannot claim to speak for all the prosecutors of this country, and do not claim to know the conditions of the Criminal Justice System in general and conditions of prosecutors outside of the National Capital Territory of Delhi. India is such a diverse country that there are variations in the manner of working within the various districts of Delhi itself. I can only hope to strike a chord with a prosecutor in, say, Kerala, and find some common ground with the judiciary, police, the Bar, and most importantly, the people of this country; for whom this system is purportedly in place.
Some Common Misconceptions
So, without further ado – what is the role of a Public Prosecutor? Or, who is a Public Prosecutor? Most citizens are unsure (including lawyers). The most common refrain I hear is that the prosecutor is a “Sarkari Vakil” (Government Lawyer). This definition, is not only inaccurate, it is wholly incorrect.
A Public Prosecutor is, and I cannot stress enough how empathically I say this, not a Government Lawyer in any sense of that term. He is not a Standing Counsel, not an Additional Advocate General. He does not represent the Government of the State which employs him. A Prosecutor, who is selected in the permanent cadre, cannot be dismissed from his position on the changing of government. He is a public servant to whom the Central Civil Service Rules apply, in toto. He is subject to the Prevention of Corruption Act, 1988.
One can also say even more empathically, that a Public Prosecutor is not a Police Lawyer. This is another common misconception among litigants, that the Prosecutor is representing the local Thana (Police Station). This misconception is entirely understandable. Before the 2005 amendment to the Code of Criminal Procedure (CrPC), there was no “Directorate of Prosecution”. The Prosecution Department was intertwined with the Police Department. I cannot comment on what the state of the prosecution was in those times, except to say that I find it difficult to imagine why it took so long for this development to occur. A Prosecutor working under the directions of a police officer would be unimaginable in most civilised countries which have some sort of a “due process” in place. In fact, in the USA, it is the direct opposite (Why that could be problematic is a topic for another day). From the stories I have heard from Public Prosecutors in the CBI and NIA, the Pre-2005 amendment position still stands true for those institutions, and hopefully I can come back to this in future posts.
A Public Prosecutor, also, does not represent the victim nor the accused. Needless to add, but in the actual trial court environs, something that is forgotten by the judiciary and the Bar, is that, he is not there to provide support functions such as translation of the vernacular into English. He does not frame charges. He is not there to record statements under 313 CrPC (he can assist by suggesting questions to the Presiding Officer, of course). He is not there to dictate evidence to the stenographer.
Understanding the Role of a Public Prosecutor – The Traditional View
The traditional understanding (at least from where I stand) is that a Public Prosecutor is interested in ensuring that (i) no person is unlawfully detained, (ii) no person is kept in custody and deprived of his liberty longer than absolutely necessary before the judgment is pronounced, (iii) that the trial is completed as quickly as possible, and in a fair manner, (iv) that the best evidence is placed on record, (v) that witnesses are not intimidated or subject to an unfair cross examination; (vi) that victims are compensated by the State for being unable to protect them from crime (the supposed reason for the origin of the Leviathan, after all). All the above said aspects are also the values sought to be upheld by the judiciary. So, is the Public Prosecutor one more check and balance in the system – an additional layer of security to zealously guard Article 21, that cornerstone of a humane society? Yes, and an important one at that.
A Public Prosecutor is a statutory authority under the CrPC. This much is certain. The Supreme Court says he is an officer of the Court. This is again, true, but inadequate, because so is every lawyer at the bar. Is not the defence counsel, an officer of the court, sworn to uphold the law? The truth, as is usual, is simple, but complicated. At various stages of the criminal justice system, a Public Prosecutor acts in the interests (as opposed to “represent”) of the (i) accused; (ii) the victim; (iii) the witness (because not all witnesses are necessarily victims of the crime as understood in law); and at all times he acts in the interest of (iv) fairness and justice. This last term is fraught with uncertainty and potholes, but they are unavoidable.
Let us consider that last one, justice. What is justice? Or rather, what do I, as a Public Prosecutor, mean when I use that notoriously loose term? I would say there are three main aspects that I have focused on in my career as a Prosecutor:— (i) ensuring a fair trial to the accused; (ii) presenting the best admissible evidence in court; (iii) grievance redressal and compensation to victims of crime; (iv) ensuring that no charge sheet is filed which would result in invoking the criminal process against someone who would in all likelihood be acquitted after trial. Out of all, this last one is fraught with a great deal of controversy today.
Prosecutorial Oversight — Taking the Best Cases to Court
The present system (at least in the Govt of NCT of Delhi) amounts to a policy of "have your cake and eat it too". Judgments delivered by the Supreme Court and Delhi High Court have only muddled the issue of prosecutorial oversight before the filing of the charge sheet. No one can seem to agree upon the extent of the prosecutors' power of oversight over the police at the stage of investigation and more importantly, over the decision to file a charge sheet in Court. I argue in favour of a clearer stance that manifests a greater role for prosecutions in the stages leading to the decision to prosecute or not.
A prosecutor should be able to ensure that no one is prosecuted who, in his wide-ranging experience, would in all likelihood be acquitted for want of sufficient evidence i.e. inability to meet the “beyond reasonable doubt” standard. This stems from my firm belief that avoiding a trial which results in acquittal is preferable to charging someone with a crime and dragging him through trial. It might seem novel in India, but in jurisdictions like the USA, prosecutors have always had control over who they wish to prosecute. And if a prosecutor thinks that there is a good chance that he might not be successful at trial then more often than not, such cases don’t go to trial.
I would argue that such a system has advantages over our present system, where any charge sheet with a pulse finds it way to our over stuffed court system. Sticking to a system where criminal cases are a matter of course and not exceptions also diminishes the importance of the presumption of innocence. And since weak / frivolous charge sheets ultimately end up in acquittals, it leaves victims disheartened and accused persons disgruntled. Ultimately, such a system of prosecutions erodes the faith of the common man in democracy and the Constitution.
What role am I imagining for the prosecutor? A much more involved one. A Prosecutor should have the power to point out the direction in which an investigation should take, and be aware of the ways in which an investigation can be mismanaged or wilfully obfuscated. The Prosecutor is not there merely to support a case against a particular person or to ensure that the charge sheet meets the required standards of proof, but also to ensure that no frivolous case is filed. He must understand the importance of conserving scant public resources against crime. A Public Prosecutor must establish strict standards that a charge sheet must meet before he signs off on it. And, this is crucial, he should be the one who must sign off on it. Thus, Prosecutors should be able to decide which cases to prosecute (developing on the discretion under Section 321 CrPC).
Conclusion
A Public Prosecutor is entrusted with the task of preserving the sanctity of the rule of law in the criminal process. To do this, the Prosecutor is expected to be an independent voice unaffected by the interests of the victims, the accused, the police, any considerations of expediency on part of the judiciary, and of course societal expectations. This is not to say that he does not or is not supposed to act to secure the interests of the various stakeholders, but that he decides the significance and extent of such interests and tries to realise his commitment to fairness and justice while keeping in mind the same.
In this post, I focused on one aspect of how this dynamic — the decision to prosecute. I argued that a system which ives primacy to the Prosecutor’s decision over a charge sheet and sufficient oversight at the stage of investigation would help secure the disappearing presumption of innocence. This is because the police, in my view, seems to be filing as many charge sheets as possible against as many people as possible and in that process seeks to keep an accused in custody as long as possible. Such a perspective might have been apt for colonial India, but is starkly out of place under our constitutional regime.
There are tremendous structural obstacles of various kinds to achieve this vision of an independent Public Prosecutor. In this series, by picking up some of the aspects I have touched upon, I will seek to delineate the practical problems faced by Public Prosecutors and outline some solutions that I think can be useful. Before picking up specific issues, it is important to note the reality in which Public Prosecutors function: What is the structure? What infrastructure has been provided? What is the reality of the trial court? This will be the subject of the next post in the series.
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