Guest Post: The Vexed Issue of the Appointment of Special Public Prosecutors

(This is a guest post by Mr. Divyang Thakur. Views are Personal. His earlier posts on the Blog can be accessed here)

Disclaimer: I have no personal knowledge of any of the facts/charge sheet/investigation conducted in any of the cases mentioned by virtue of my post. This article is written from a purely academic perspective based on facts in the public domain.

INTRODUCTION

In February 2020, riots broke out in New Delhi. There was significant loss of life and property. Multiple FIR’s were registered under various sections. Investigation was conducted by the Delhi Police (Investigating Authority) and multiple persons were arraigned as accused and taken into custody.

Over the past few months, a tussle has emerged between the Central Government and the State Government with respect to the appointment of Special Public Prosecutors in the cases which are now colloquially known as “Delhi Riots Cases”. Multiple orders have been passed by the Hon’ble Delhi High Court in this relation. I do not propose to analyse the statements made by various functionaries involved, nor discuss the orders passed in this relation by the Delhi High Court.

However, at the outset I would like to humbly submit that (i) there is no doubt at all about the legal proposition that it is only the Government of National Capital Territory of Delhi which can appoint a Special Public Prosecutor for offences committed within its jurisdiction and being tried by the Courts in Delhi; (ii) it is also no more in doubt that the Lieutenant Governor of Delhi cannot differ from the recommendations made by the Council of Ministers in all but the rarest of rare cases where it is imperative to uphold the Constitution. The authority for the first statement of law is the decision of the Delhi High Court, and for the latter is the decision of the Supreme Court. In that respect, though much has been made of the so called “tussle”, the position from a legal point of view is well established. 

Rather, in continuation of my previous posts, I wish to highlight the issues in respect to the State’s prerogative to appoint Special Public Prosecutors in cases of its choosing. I will lay down briefly the basic argument that the State can only do so in limited and rare cases, where there is an actual conflict of interest, and not for any other reason. Any other view, especially one which supports the State’s unfettered prerogative to appoint a Special Public Prosecutor as per its whims and fancies undermines the rule of law. 

WHY MAINTAIN A PERMANENT CADRE OF PUBLIC PROSECUTORS?

We have to go back to the basics first, and consider the rationale behind having a permanent cadre of Public Prosecutors appointed by the State.

The position (for which my earlier posts can be seen) can be summarised thus: A Public Prosecutor is a Public Office. The raison d'etre of the existence of this Office is (i) Impartiality and (ii) Independence – at the very least. A Public Office is a repository of the faith of the public that the State will treat them fairly and equitably, especially in matters of criminal justice. 

A Public Prosecutor is to be differentiated from a Standing Counsel appointed by a State Government or the Central Government to argue its brief. Though Public Prosecutors are appointed by the State Government, this will not mean that they are to take instructions from the appointing authority with respect to the conduct of the case. This is an extremely crucial difference and I invite the reader to mull this over.

As a sidebar, and in response to the above noted ongoing “tussle”, it is necessary to note that the Investigating Agency, i.e. the Delhi Police, cannot field a lawyer to assist the Prosecution, or even worse, act as a Prosecutor. This is for the reason that the Investigation Agency has a prima facie conflict of interest – in fact this is the reason that the Police and Prosecution have been separated in the first place by removing the Prosecution from the subordination of the Police. The argument that the “Delhi Police has an interest in the outcome of the case” is ridiculous because this so called “interest” is precisely why the prosecution is supposed to be conducted by the Public Prosecutor, so he may take into account facts which may even lead to the acquittal of the accused and can also lead to an unfavourable observation against the Investigating Agency. Moreover, even if we assume that the lawyer fielded by the Delhi Police would be dispassionate and impartial, such arguments violate what I like to call a first principle of the law – Justice shall not only be done but seen to be done. 

In fact, it is this very maxim of law that is the genesis of the office of the Public Prosecutor, so that the State is not seen to be appointing officials whose employment and standing are at the mercy of the said State, but rather officials who have permanency in tenure, and cannot be removed for placing the true facts of the case before the Court which might not be to the liking of the Investigative Agencies. Therefore, in the State of Delhi, a regular cadre of Public Prosecutors is maintained, who are selected in open competition by the Union Public Service Commission. They are not selected keeping a specific cause or case in mind. This is another crucial point – and another aspect in which the basic maxim of law noted above is upheld – Public Prosecutors are selected on the basis of their qualifications, experience and performance in the exam and not solicited for a specific trial. An argument could be made that the selection procedure could be bettered – but that is not my point at the present. The public faith in the system is kept secure by ensuring that persons to a public office are selected by an impartial agency which is what the function of the UPSC is – even if the Investigation Agency wants a particular result, there is supposedly a Public Prosecutor appointed through an open competition, handling all cases of that particular district/Police Station/area in an impartial and unbiased manner.

REASONS FOR APPOINTING AN SPP: SPECIAL CASES, HEINOUS CRIMES, EXPERIENCE, CAPABILITY AND OTHER REASONS CITED IN FAVOUR OF APPOINTMENT OF SPECIAL PUBLIC PROSECUTORS IN DELHI RIOTS CASES

To my understanding and experience the only occasion that a Special Public Prosecutor should be appointed in place of the Regular Prosecutor appointed to a certain Court is if there is a conflict of interest – which can arise in my experience in the following situations – (a) The Public Prosecutor acted as a Defence Counsel in the said matter; (b) The Public Prosecutor has relations to the IO or the accused or the informant or the victim; (c) The Public Prosecutor is related to/has personal relations with the Presiding Judicial Officer. I can think of no other situation that would necessitate the appointment of a Special Public Prosecutor and that too someone who is not already working in the permanent cadre of Prosecutors. As a thought experiment, I invite readers to point out any other valid reasons for the appointment of a Special Public Prosecutor. 

The arguments put forward by the Government (Central and State, though I don’t see how the Central Government can have a role to play in the first place) are that the Delhi Riots Cases are heinous in nature, consist of peculiar facts and circumstances and require expertise of a higher level and also that the regular cadre of Prosecutors are not equipped to handle such cases. This argument is flawed because – (a) it’s not clear why the Delhi Riots Cases are more heinous in nature as compared to offences/cases which are tried regularly in the Courts of Metropolitan Magistrates and Sessions Court; (b) there is no reason to believe that there is an expertise required for the Delhi Riots cases which is not required for the other “not-so-special” cases which are regularly handled by the regular cadre of Public Prosecutors; (c) in any case the Governments (State and Centre) have not given any reasons for the appointment of the particular lawyers who have been appointed as Special Public Prosecutors – on what standards has their performance been evaluated? How many cases have they handled as Prosecutors?

A perusal of the reasons for the appointment of Special Public Prosecutors will clearly show that there is no yardstick for why the Delhi Riots Cases are more special- and there should be, because the appointment of a Special Public Prosecutor is a significant departure from the norm. Imagine, for a moment, if you will, if the State started to use these arguments to appoint persons who are not part of the Delhi Judicial Services or Delhi Higher Judicial Services as Judges in “special” cases. It is unthinkable. The judiciary has insulated itself, comparatively, from such high-handed adventurism. Then why are Special Public Prosecutors being appointed in a routine manner, for insufficient and clearly extraneous reasons? In my humble opinion, a departure from the norm should be justified on the basis of valid reasons. The State has not met such a standard in the Delhi Riots cases.

CONCLUSION

The outcome of the prosecution in the Delhi Riots Cases remains to be seen, but the principles of law have already been undermined by the appointment of Special Public Prosecutors who are not part of the permanent cadre in these cases. I have already explained why, when it comes to the appointment of a Prosecutor, the State should not be seen as having the unfettered right to appoint who they wish to, as compared to the State’s right to appoint a Standing Counsel to argue its brief where the State is a party. Though all criminal matters are titled as “State of ABC v. XYZ” but the State is not a party in the same sense in criminal cases as it might be in a writ petition filed against it. If the above statement is not true then how come the State cannot instruct the Prosecutor to make a certain argument or move a certain application as compared to a Standing Counsel?

Guest Post: Prosecutorial Control over Investigations — A New Paradigm for the Criminal Justice System in India

(I am delighted to present a post 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 traditional view and status quo, at least in Delhi NCR, on the role played by prosecutors during the investigation process is as follows: An FIR gets registered, the police conducts investigation, and upon finishing the investigation, the Investigating Officer ["IO"] prepares a Chargsheet / Cancellation Report [under Section 173 Cr.P.C.], as the case may be. If the IO thinks a person should be tried for a crime, that Chargesheet is submitted with the area Prosecutor for comments. The Prosecutor raises objections (a sort of Due Diligence), and the file goes back to the IO. After this, the matter is out of the Prosecutor's hands: The IO may or may not choose to address the concerns of the Prosecutor, and then forward the file for this to eventually go before court. 

It is evident that, currently, a Prosecutor plays a minimal role during the investigation; his objections are like non-binding directives, his views on sufficiency of material on record to secure a conviction mere observations, which have no impact on either how the investigation proceeds or how it ends. 

Through this post, I will argue that we need to move away from this status quo, towards a model where prosecutors are more involved with the investigation. Such a model, I think, stands a much better chance of doing justice to all stakeholders in the Criminal Justice System. 

The Goals of a Criminal Justice System 

When I argue that my model will help secure justice, what do I mean? I mean that such a model will help ensure four broad goals are fulfilled more regularly: 

• First, prosecutions are launched carefully to ensure that persons face trial only when there is a reasonable shot at conviction, thus avoiding unnecessary prosecutions, for the process is often the punishment. This also ensures that victims are not left short-changed, when the seemingly “open and shut” cases end up in acquittals. 
• Second, ensuring that no person is deprived of liberty unless essential. 
• Third, completing investigations in a time-bound manner, as having your life under the cloud of a criminal investigation can be a traumatic experience—for both an accused and the victim. 
• Fourth, and flowing from these goals, is the idea of lessening the number of trials themselves, to ensure that our judges are not tasked with gargantuan dockets and can apply their mind to cases rather than simply treat them as an issue of processing files. 

Currently, India’s Criminal Justice System is far from achieving any these goals. We need to change this status quo. 

The Classical Approach to Prosecutorial Involvement 

The standard legal position on the role of Prosecutors was discussed in an earlier essay on the Blog, and so I need only mention the Supreme Court’s decision in R. Sarala v. T.S. Velu & Ors [(2000) 4 SCC 459), “Sarala”], where the Court discussed the issue of Prosecutors being involved in the decision to file a Chargesheet. The Supreme Court said that they cannot be so involved, for the Prosecutor’s role was triggered only after a case reached court. The possible benefit of nipping unfair prosecutions in the bud was seemingly met through the power of prosecutors to withdraw cases under Section 321 Cr.P.C is what the Supreme Court held. 

This logic of limited involvement can also be seen in the Standing Orders of the Delhi Police [See the order dated 25.10.2010], which outlines the process that I described at the start of this post, where the Prosecutor’s role is somewhat similar to that of the President in our electoral democracy. The Chargesheet goes to the prosecutor for comments, who can send it back pointing out gaps. Regardless of the police agreeing or disagreeing, the Chargesheet can then be sent to court directly, and “should ordinarily not be sent to the prosecutor” again. 

When the Delhi High Court tried to pull away from this view of limited involvement of prosecutors in Court on its Own Motion v. State [Writ Petition (Criminal) 1352/2015, order dated 05.04.2018], the weight of the views in Sarala forced the Court to beat a hasty retreat, for by an order dated 28.05.2018 it stayed its observations that had mandated prosecutorial approval before a case goes to court, and that is where matters stand today as the case is still pending. 

Kishanbhai’s Case: A New Paradigm 

It would be apropos to now cite the following lengthy excerpt from the Supreme Court's decision in State of Gujarat v. Kishanbhai [(2014) 5 SCC 108, “Kishanbhai”]. The observations were made by the Court in a case where investigative lapses and poor prosecution led to an acquittal. Presumably under its extraordinary powers, the Court stated: 

The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigours of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

The further directions given by the Court are too long to extract here but well worth a read. 

The Supreme Court in Sarala had observed that any consultation with “legal experts” was optional. But after reading Kishanbhai, it seems as if the Court has taken a U-Turn. Kishanbhai suggests that consultation and opinion of the prosecution has been made mandatory after the completion of the investigation. Moreover, the prosecuting agency may require further investigation [not to be confused with the statutory provision of Section 173(8) Cr.P.C.] to be made to rectify deficiencies in the charge sheet. 

I would argue that Kishanbhai must become the lodestar for future discussions on the issue of a Prosecutor’s role in the Criminal Justice System. Following this, we must shift the status quo to a model where Prosecutors are associated with a case from its inception, can assist the IO during the investigation to help avoid gaps and errors, and must have a say on whether the case should go to trial or be closed. 

Below, I cull out some instances of how prosecutorial involvement at the investigation stage can help make a difference: 

1. Loss of Relevant Evidence: In law, today, an IO is required to appreciate nuances of evidence law surrounding the material gathered during an investigation. But is it reasonable to leave such a determination to only an IO? By the time that a Chargesheet is prepared, an innocent man may be known as an accused, avenues of investigation might go unexplored forever, valuable evidence might be lost and the prosecution might not be able to meet the required standard of proof. I would argue that the involvement of Prosecutors can help streamline this process and avoid errors, by creating a system of checks and balances and taking away the sole authority of police. And, arguably, a more effective method than burdening courts with taking "action taken reports" in sealed covers. In my own experience, countless times I have asked an IO to investigate, where possible, for CCTV footage, and countless times the reply received is that the footage even if initially available, has since been deleted as 15 days have elapsed. By the time a court acquits on the ground that the best evidence has not been placed on record, the proverbial "open and shut" case is lost, and justice remains elusive. 
2. Setting Standards and Boundaries to create an Institutional Check and Balance: A very simple example will speak volumes. In our criminal jurisprudence the Courts generally acquit for offences like Section 33 of the Delhi Excise Act 2009 (possession of illicit liquor), Section 25 Arms Act 1959  (possessing firearm without a valid licence) and Section 411 IPC (dishonestly retaining stolen property) on the ground that public persons were not made witnesses to the recovery despite their availability. As a Prosecutor, I know that there is a slim chance that such recoveries will be proved and an accused convicted. However, I must allow cases to continue, as there is a prima facie case and police witnesses cannot be doubted beforehand. In a system, where the Prosecutor is involved in the decision of whom to prosecute, I would never bring such a case to trial unless the police convince me that no public person was available (recovery was in a remote region etc.) or that those public persons who refused to join were sent a notice for their non-cooperation and that action was taken. The effect of my refusal to act on such a recovery as a Prosecutor is what I call the setting of standards and boundaries. It is a precedent which sends a message to the Institution as a whole – though I personally might believe that the police officers did recover contraband, however, the Prosecutor as an institution sets standards for how an investigation is conducted or a recovery / raid completed. The Police scarcely care that the end result of an investigation is a perfunctory acquittal. However, stopping the Police from incarcerating (however temporarily) and filing a Chargesheet against a person on basis of a recovery that the court ultimately does not rely on might have a cascading effect and lead to the creation of a more transparent culture. 
3. Enforcing Public Policy: Another example is appropriate. One of my colleagues encountered a case where a firefighter was driving a truck in a narrow lane where a building had caught fire. He hit one man near the building, causing him grievous injuries. The firefighter was charged for the offences u/s 279/338 IPC. Consequently, he lost his government job and was suspended without pay for many years before the matter came up in court for arguments on charge. I did not ask about the fate of the case, but considering the facts as a whole, my colleague and dear friend did not feel that it was a particularly egregious case of rashness or negligence, in fact the police did not even cite anything in the charge sheet to show that state of mind. The firefighter argued that he could not even see properly, it was dark and a narrow lane had to be navigated to reach the building which was on fire. Now, is it not a case where a Prosecutor at the very outset could and should have decided not to file a charge sheet against the firefighter as a matter of policy? Of course, the prosecution can be withdrawn, but it is already too late — the firefighter is now an accused, and his colleagues have been delivered with a message that they too could be prosecuted for an accident while on duty. And so by the time help comes from the courts or the Prosecution, it is too late to avoid mental agony. If we have to become a mature economy and country, we have to move towards a policy of mindful prosecution keeping the larger picture in mind, rather than the mindless chargesheeting as displayed in the example above. We must at least start the discussion on going through the rigours of a cost-benefit analysis of non-prosecution where it might have an unintended chilling effect on a certain group of persons and activity etc. 
4. The Relationship between the Prosecutors and Witnesses: I related in my previous post that witnesses are often bewildered when they arrive for the first time to depose before courts. A Prosecutor can be invaluable in giving psychological and logistical support to a witness and in counselling them on the future course. We have the beginnings of a Witness Protection Scheme and considerable jurisprudence and legislation has already amassed with respect to the Victim Compensation Scheme. A Prosecutor could provide valuable input for implementing both these schemes in letter and spirit. But this requires the Prosecutor and witness to interact during the initial stage itself, at the time the crime has taken place. Moreover, it could help the Prosecutor in deciding on the credibility of the witness and in advising the IO to run background checks so that he is not surprised by the defence if the matter goes to trial. Most importantly, talking with the witness can help a Prosecutor decide the manner of the examination in chief, rather than having to improvise and, even worse, declaring a witness hostile based on minor technicalities. I find it amusing and sad that a Prosecutor, in whose hands the trial lies, is the one most surprised by the turn of events when the trial starts. Witnesses often state that the police never took their statement or that they never joined the investigation. The sad truth is that this is often true, and when a witness states on the stand that the police officer merely noted his address and name and never read out their statement, I believe them. 
5. Due Diligence: No company invests without a detailed due diligence by well-paid lawyers who painstakingly go over each and every document, prepare requisition lists and ask the questions that need to be asked of an investee. Should then a person be charged with a crime, lose his reputation in society and be called upon to answer to a charge of a crime at the drop of a hat? Chargesheets are shoddily prepared, with documents hither thither, without any explanation for why a particular document is placed on record, its relevance and value, link to the crime, how it shall be exhibited if a photocopy, its admissibility, what part of the same needs to be proved and by whom — these and many other questions remain unanswered even at the stage of trial. IO’s seem to have bigger fish to fry and are either transferred, or have retired / resigned from service by the time of trial, and so have no accountability or stake in the outcome. So, does the system have trained lawyers who can do the necessary checks and direct how the brief can be presented in Court? You know the answer already.

Conclusion 

The Prosecution Department must be seen as an accountable institution, separate from others like the Police and Judiciary. The Prosecutor, if he prosecutes, must have no qualms about the innocence of the accused at the outset itself. I firmly believe in this. Of course, anything may change during trial. But at the outset, the Prosecutor must be sure of the evidence, the quantity and quality thereof, and then take the decision to prosecute. The decision to prosecute or not could always be communicated to the victim, concerned parties and of course, the public at large. This is by no means infeasible in today’s day and age. Moreover, it is important that a decision to prosecute is not made by the Investigating Authority or Government of the Day, but a separate, independent institution, insulated from interference. Such a setup promotes institutional complacency, corruption and inequity in a vast number of cases.

A decision to prosecute affects the life and liberty of the accused and his family. It irrevocably leaves an imprint on their lives. Moreover, it affects institutions and their cultures, and the society at large. On the other hand, a crime darkens the life of the victim. A faulty investigation which lets the guilty party scot-free is a blot on the system, as much as the prosecution of an innocent. It is essential that no single institution is granted this exceptional power to affect lives without sufficient and timely checks and balances. As I have argued, the Prosecution Department, is best placed to address the current iniquities prevailing at the stage of the investigation. Moreover, a decision to prosecute can only be taken by the Prosecutor after having being involved during the course of investigation, being sure that no other explanation is available, that no avenue unexplored. 

For all these reasons, I argue that the system needs change, and needs it immediately.

Guest Post: Structure and Functioning of Prosecutors

(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)

Guest Post: Understanding the Position of a Prosecutor in the Indian Criminal Justice System

(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.

India Needs to Rethink how we Prosecute Crime

In December 2017, the special court appointed to hear the 2-G Spectrum cases delivered a verdict - each of the defendants was acquitted. Not because of some arcane technicality, but because the court examined the evidence, and at the end of a nearly 1600 page long decision said that where the world was being asked to see a huge scandal, there was none. Little has been said about the verdicts: I doubt many people except criminal lawyers are ever going to actually finish 1600 pages, and then, the entire episode seems like it happened so long ago making it not very newsworthy. In the few days immediately after the verdict though some websites were carrying excerpts out of the decision which contained a stinging rebuke to the manner in which the prosecution was conducted (I am referring to paragraphs 1810-1812 for those interested). The court lamented the disjointed stand put up by those in the government's corner; the Special Public Prosecutor appointed by the Supreme Court, the Senior Public Prosecutor who normally works in court, and the CBI Inspector who had handled the case.

This raises an important question, albeit indirectly: how do the prosecutors and investigators work together in the Indian criminal justice system and whether this is the best way to run things? Speaking to those outside the court system, I found it interesting that not many people knew how things worked to begin with, which gave this post some purpose.

Prosecutors and investigators do not normally work together. Investigations are usually entirely in the hands of the police and once a chargesheet is filed in court, the prosecutor comes in the picture and functions as the voice of the government's case. The police takes a backseat and moves on to the next case while the prosecutor takes charge, and the investigating police officer comes whenever possible to give help. Who are these prosecutors? They have been described as a' limb of the judicial process' and are appointed by government either from a cadre of officers (like most of Indian bureaucracies) or in consultation with the local judiciary, with different states having their own rules for selection etc. Most of this procedure came in with the 2006 amendments to the Cr.P.C. Since the average lifespan of most criminal cases is beyond two years, it is rare for prosecutors to continue with the case from start to finish because administrative transfers happen much more frequently. For instance, while I am personally unaware of the 2-G scam cases, I do know that the prosecutor changed in the ongoing Commonwealth Games cases. This means they have relatively little skin in the game. If we are thinking about comparative examples then Indian prosecutors would seem much closer to prosecutors in civil law systems as against those in common law countries. And extremely far from American prosecutors: to call them apples and oranges would be understating the differences.

Was this strict separation between police and prosecutor always the case? No. In fact, at the time of independence, prosecutors fell under the control of the police rather than the local government or judiciary. While I am unaware of qualitative contributions made by prosecutors during investigations, it is likely that there was still greater synergy in how cases were investigated and prosecuted. But the problems seem to have outweighed the benefits. The Law Commission since the 14th Report onwards is considered to have consistently argued that the police and prosecutor should be separate, and the current legal regime reflects how the Law Commission's ideas have been accepted by successive governments (I say considered, because there is some variance between what the 14th Report says and what the 197th Report thinks it says). Has this helped the Indian criminal process? I would argue that it hasn't and, in fact, is bad for the system. Time and again we get high-profile examples like the 2-G scam which show us that if the police had a keener eye for what might be evidence in a case then the outcome might have been different. Or if the prosecutor knew the facts then she could have presented them better. But we don't need high-profile examples like the 2-G scam to tell us that the system is messed up: the data is right there. Since the 1990s, the police have been filing cases far more regularly than the system can handle them. This reflects that the incentives of police do not include what happens to cases once they reach court. Should that be so? Not at all. Enough studies have shown that if persons know their cases will languish in courts for years, the deterrent effect of sending anyone to prison takes a bit hit. So, one of the key goals of having criminal prosecutions gets defeated.

Indian politicians bemoan low conviction rates (hovering around 50% for IPC offences), and cases like the Arushi murder trial help whipping up sentiment against the supposedly primitive ways of the police. But as the numbers show, blame should also be apportioned to how cases are prosecuted in courts. Prosecutors in the district courts often function on extremely meagre resources, having no office but only a space reserved inside the courtroom they are appointed to serve, and ordinarily handle a complex docket that has upwards of thirty matters, consisting of bail hearings, arguments for arraignments, recording evidence, and final arguments on guilt or innocence. They are often not paid on time as well. The previous lines are describing New Delhi, the capital, so one can only imagine the situation in non-metro cities. Where prosecutors are able to compete effectively in cases where clients cannot afford to put up a good case, the mismatch in cases like the 2-G scam becomes painful to watch. While those defendants may win, there are still casualties in the system, because then we find judges try and make up the handicap by diluting the presumption of innocence and ask defendants to do more than they need to for establishing reasonable doubt. Or they want more from the defence lawyers simply because they get used to the low standards of contribution from prosecutors because of the systemic problems I described. Whatever be the case, the process suffers.

For years India has been gaining infamy for a tediously slow judicial system. If anything, data suggests that things won't change by simply having more judges and more courts as we might be led to believe. This is a complex problem, and has many parts that need to be addressed. Reforming how we prosecute crime needs to become one of these parts, and urgently.

(This post was amended on January 28, 2018 to correct references to the 14th Report of the LCI)