ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Misunderstood Public Prosecutor

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In the Indian public perception, the concept of prosecution is rather straightforward. It refers to the securing of a conviction and ensuring that the accused gets the maximum possible sentence. Often, in the strong tide of emotions and feelings that characterise the aftermath of heinous crimes that gain traction in the media, the prosecutor is seen as the personification of social vengeance. The media hangs on to every word of the often triumphant public prosecutor as he emerges from the courtroom after securing a conviction in a high-profile case. The end goal of the public prosecutor
is seen as securing punishment for the accused (especially in cases where the public opinion demands such punishment). The yardstick for the effective public prosecutor in the Indian legal ecosystem, therefore, becomes ensuring that the maximum number of convictions, and if possible, death sentences are handed down by the courts.

In line with this manufactured narrative of the “effective prosecutor,” the Madhya Pradesh (MP) government has recently announced a scheme by which credits are given to prosecutors in cases where death sentence and life imprisonment are awarded. This line of thinking, while often based on good intentions of securing “justice,” is patently flawed in its jurisprudential and ethical bases.

With a high incidence of reported cases of rape against children and women, MP, like several other states, has been increasingly battling with crime rates. According to data from the National Crime Records Bureau, MP registered the highest number of rape cases in the country in 2016. While there is force in the argument that this high number is due to increase in crime reporting as opposed to increase in actual incidence of rapes, that intervention is not needed is hardly the case.

The MP government, in holding an aggressive stance against crime on women, has taken several steps, like passing a bill providing for death sentences to persons who are convicted for raping a female child less than 12 years of age. The decision involving contingent rewards for prosecutors is in the same tone and tenor, in spite of its lack of synergy with the criminal justice
delivery process itself.

According to media reports, the Directorate of Public Prosecution of the Government of Madhya Pradesh awards 1,000 points to prosecutors who manage to secure the death penalty for the accused, 500 for securing life sentences and 100–200 points for securing maximum sentencing in rape cases. Alarmingly, prosecutors who manage to secure less than 500 points per month are issued caution by the department. The Code of Criminal Procedure (CrPC), 1973 provides for the appointment of public prosecutors in the high courts and the trial courts through Section 24. However, the legal position of the public prosecutor is not some perplexing legal conundrum so as to justify the magnitude of ignorance that is often displayed by various stakeholders. In fact, the role of the public prosecutor and their independence from the executive has been defined in no uncertain terms by decisions of the Supreme Court and various high courts. It has also been discussed in great detail by reports of the Law Commission of India (LCI). In its 154th Report on the CrPC, 1973, the LCI quoted the Kerala High Court in the case of Babu v State of Kerala, 1984 where the court had held that Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction.

Ten years later, in its 197th Report on Public Prosecutor’s Appointments, the LCI quoted extensively from decisions of the Supreme Court and various high courts, apart from the common law doctrine, to illustrate the nuanced position of the public prosecutor in the criminal justice system. By relying on the case law of the Supreme Court, the commission clarified that the public prosecutor owes a responsibility to the state, to the public, to the court and to the accused.

The principle that the public prosecutor is an officer of the court and is responsible to the court has been reiterated by the Supreme Court in Subhash Chander v State, 1980. In the case of Prabhu
Dayal v State
, 1986, the Delhi High Court observed that the public prosecutor must not be partial to the prosecution or to the accused. It is their duty to present a complete picture of the case to the court. The Madras High Court in the case of Marappa Gounder v Venkatachalam, in providing an exposition of the role of the public prosecutor, had emphasised that “the public prosecutor is not a protagonist of any party though in theory, he stands for the state in whose name all prosecutions are conducted.”

In other words, while the public prosecutor must prepare and present a well-formulated case for the state against the accused, they must be entirely objective in their duty. It is established that the public prosecutor must be indifferent to the result of the trial. However, in the hurly-burly of the public and media attention that often accompanies serious crimes, the nuance of the role of the public prosecutor is often lost. This situation is especially serious when the government itself encourages such a posture, as is evident in the case of MP. In such a scenario, the prosecutor has no scope of approaching the brief in an objective manner which is his lawful duty.

While the CrPC, 1973 envisages the establishment of a Directorate of Prosecution under the control of the government, it is well established that the public prosecutor, while acting in a case, is independent with respect to the decisions affecting the judicial fate of the case. That is, they act as a limb of the judicial process and are not as an extension of the executive. The Supreme Court has emphasised that matters like the withdrawal of prosecution under Section 321 of the CrPC are prerogatives of the public prosecutor and they cannot be influenced by officers above them on the administrative side.

A departmental scheme of this nature, which seeks to reward prosecutors for securing capital punishment and convictions, goes against the lawful duty of the public prosecutor and jeopardises the chances of the victim securing justice and the accused getting a fair trial. In a prosecution scenario, more often than not, the prosecutor has both positive and perverse incentives for doing their job. When a prosecutor is awarded “points” for securing the maximum punishment as in MP and not merely presenting the state’s case diligently, it creates a perverse incentive by encouraging prosecutors to cut corners and undermine the defence’s case. While it is true that prosecutor fatigue or underperformance is an issue, it is quite possible for governments to counter it by introducing positive incentives for prosecutors that rely on other objective criteria like regular case reviews, stakeholder feedback, fast-track promotions, etc, without influencing the judicial process itself.

A high crime rate coupled with low conviction rates is no excuse to implement policy measures that have the potential to challenge the foundational values of the criminal justice system. It is also imperative to note that other policy measures, like introduction and strengthening of victim support programmes and capacity-building of legal aid lawyers, are also equally effective at ensuring healthy conviction rates without jeopardising the sanctity of the criminal justice delivery process.

Anubhab Atreya

Assam

Updated On : 12th Oct, 2018

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