Thursday, July 17, 2008

Strengthening the prosecution system

Strengthening the prosecution system

N.R.Madhava Menon

Given the organisational set-up of the prosecution and its sensitive relations with the police, the prosecution machinery suffers from multiple disabilities.

Almost every aspect of criminal justice administration is badly in need of reform. Several committees have recommended legal and institutional changes to strengthen the system. Among them, those in respect of investigation and prosecution are considered primarily significant. The Supreme Court had to direct the Centre and State governments in the Prakash Singh case (2005) to introduce police reforms urgently to save the system from total collapse.

The prosecution agency is that segment of the criminal justice system responsible for prosecuting those found by the police to have committed a criminal offence. Under the federal scheme of the Indian Constitution, criminal procedure including the prosecution system is an item in List III of the Seventh Schedule, under which both Parliament and the State Assemblies are entitled to legislate.

The objective of the prosecution proceedings is to protect the innocent and seek conviction of the guilty. Given this dual purpose and the adversary nature of criminal proceedings, the role of the prosecutor is value-laden with notions of fairness and justice. The prosecutor is motivated neither by any sense of revenge nor commitment to get a conviction. He is an officer of the court who is personally indifferent to the outcome of a case. His duty is to place all evidence before the court, irrespective of whether it goes against or is likely to help the accused. In this sense, the impartiality of the public prosecutor (PP) is as vital and significant as the impartiality of the judge.

Normally, the PP’s role begins after the investigation agency presents the case in court. Of course, it is open to the police to get the best legal opinion but it is not obligatory for them to take the opinion of the PP for filing the charge sheet (2004 [4] SCC 461). After the amended Criminal Procedure Code was enacted in 1973, the prosecution agency was expected to be separated from the Police Department. The objective was obviously to ensure that police officers who investigated a case would have no manner of control or influence over the prosecutors.

Though varying in details, the existing prosecution machinery in the 29 States is quite similar in organisation and functions, except in a few States in the northeast where the separation of the executive from the judiciary is still to be completed. The others are governed by the same provisions of the Code.

Given the organisational set-up of the prosecution and its sensitive relations with the police, the prosecution machinery suffers from multiple disabilities, some systemic and some incidental. The Committee on Reforms of Criminal Justice System in its report (March 2003) identified, inter alia, some weaknesses in the prosecution machinery and its functioning. They are discussed here with allied proposals for strengthening the prosecution service.

(a) Insufficient coordination between the prosecutor and the investigating officer: Prior to the Cr.PC (Amendment) Act, 1973, prosecutors appearing in the courts of magistrates functioned under the control of the Police Department. They scrutinised police papers and advised the police on legal issues before filing them in court. The prosecutor used to keep a close watch on the proceedings of a case, inform the jurisdictional police to produce the witnesses on the day of the trial, refresh the memory of witnesses with reference to their police statements and examine them at length. Thanks to close monitoring, very few witnesses turned hostile. If and when they did, the prosecutor exposed them through effective cross-examination.

But the 1973 amendment changed the situation and weakened police-prosecution coordination. The 14th Report of the Law Commission observed that it would not be possible for PPs to exhibit the degree of detachment necessary for fair prosecution if they were part of the police organisation. Consequently, the prosecution wing was separated from the Police Department and placed under a Directorate of Prosecution (Sections 24 and 25 Cr.PC). The Supreme Court also reiterated this position and directed the States to place the prosecution wing administratively and functionally under the direct control of the State government (AIR 1995 SC 1628). While in some States, the Directorate of Prosecution functions under the administrative control of the Home Ministry, in others it works under the Law Department. The decision was left to the discretion of the State Council of Ministers. Similarly while in some States, the Director of Prosecutions is an officer of the higher judicial service (district and sessions judge), in others he is a police officer of the rank of Inspector-General or Additional Director-General. The PP’s impartiality depends largely on who controls the agency.

Most police officers as well as some administrators and judges believe that the lack of coordination caused by the separation has resulted in falling conviction and disposal rate, filing of poorly investigated cases, indifferent management of trial proceedings including bail, and lack of effective review, particularly at the district level. There is no doubt that the police-prosecution interface is in need of immediate remedial action but giving the prosecution back to the police is neither desirable nor practical.

(b) Lack of professional competence and commitment among PPs and APPs is another factor contributing to the weakness of the system. They are appointed under the provisions of Sections 24 and 25 of the Cr.PC which envisage a regular cadre of prosecuting officers in every State. Unfortunately, it does not exist in many States. Since no specific guidelines for the appointment of APPs are set in Section 25 of the Code, it has become a matter of political patronage rather than merit.

There is no attempt to professionalise the prosecution service systematically. Selection is neither merit-based nor competitive. Remuneration and conditions of service are not attractive. There is no system of education and training for prosecutors. Because of this, the morale of the service is very low and prosecutors become vulnerable to bribery and corruption.

If the prosecution at the district level is to function efficiently and impartially, it is essential not only to have a proper system of selection and training but also provide for a closer supervision and monitoring mechanism, particularly at the junior level. This would require a unified integrated structure which may be functionally separate in terms of the tasks of investigation and prosecution. While the prosecutor should not be dependent on the police, he or she should be able to seek closer cooperation with the investigating officer. The investigating officer’s intimate knowledge of facts can certainly help the prosecutor in countering defence. At the same time, the investigator will gain immensely from the prosecutor’s expert legal knowledge. Since the functions are integral and complementary and as the personnel employed in the two agencies cannot work in isolation, a total divorce is undesirable. Some degree of unification of control is necessary for effectiveness in prosecution. To achieve mutual cooperation without subordination of one to the other and without impinging upon the independence of either, an arrangement should be worked out to have a common centre of control and accountability.

At the district level, a cadre of APPs, selected and trained under Section 24(6), and accountable to the Directorate, should be established. The other recommendations of the committee on the district prosecution agency may be summed up as follows:

All APP appointments shall be made through competitive examinations held by the Public Service Commission; half of the vacancies in the posts of PP and APP at the district level in each State shall be filled up by selection and promotion on a seniority-cum-merit basis. The rest shall be filled by selection from a panel prepared in consultation with district magistrates and district judges; no person appointed APP or promoted PP shall be posted in his or her home district, or where he or she was practising; PPs appointed directly from the Bar shall hold office for three years. However, the State may appoint as special public prosecutor any member of the Bar for any class of cases for a specified period; in appointing PPs and APPs to various offices, sufficient representation shall be given to women; intensive, continuous training shall be given to all APPs; promotional avenues should be given to prosecutors; the Director of Prosecution must ensure accountability by calling for reports on all acquittal cases from both the prosecutor and the Superintendent of Police; all prosecutors should work in close cooperation with the Police Department and render advice and assistance from time to time for efficient performance of their duties; a provision may be made for posting PPs and senior APPs at the offices of the Police Commissioner and District Superintendent of Police for rendering legal advice; the Commissioner of Police and the special prosecutor may be empowered to hold monthly review meetings of PPs and APPs for ensuring proper coordination and efficient functioning of the prosecution system.

The failure of prosecution is not always of its own making. While it is important to select prosecutors properly and give them adequate training, and constitute an independent directorate for professionalising the system, it is equally necessary to study the systemic and structural weaknesses in the criminal law and its administration. After all, effective investigation and successful prosecution are the basic guarantees the state has made to victims of crime. Strengthening the prosecution system consistent with the rights of the accused is a pre-requisite for fair and impartial justice.

(The author was Chairman of the Committee appointed by the Government of India to draft a National Policy on Criminal Justice, and consultant to Criminal Justice Reform in Bangladesh.)

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