In the backdrop of the Hathras incident, a Public Interest litigation has been filed by advocates Kirti Ahuja and Kanika Ahuja in the Supreme Court, praying for reforms in the laws concerning rape and grievous injuries.
This PIL brings up an interesting point for discussion.
The petitioners have prayed that the rape victims should have the right to appoint private counsels for fighting the cases on their behalf and they suggest that an amendment be made to section 301 of the Criminal Procedure Code (CRPC) 1973.
It is argued that rather than privatising the prosecution which will be unfair to the accused, as it will lead to prolonged trials by setting stage for a never ending tug off war between the accused and the victim’s counsel and it will also facilitate commodification of justice, it is better to bring in a few reforms in the our state facilitated public prosecution system functions.
1. The role of Public Prosecutors in the Criminal Justice System:
Unlike civil disputes, wherein the plaintiff and defendant get to have their own private lawyers to represent them in the court, the state prosecutes the accused in criminal cases, while accused gets to have their own private lawyer. Section 24 of the CRPC provides for the appointment of a Public Prosecutor (PP).
They can either be appointed by the magistrate or can be recruited from a regular carder of PP's which is maintained in every state. As per section 301 (1) of the CRPC, the PP or Assistant PP who is in charge of a case, can appear and plea before the sessions court without any written authority at the stage of inquiry, trial or appeal.
The PP is not supposed to assail or defend either of the parties, but they are statutorily obligated to bring the truth before the court. The remuneration, conditions of work and other service related matters of PP's are regulated by the state itself.
The problems in the present system:
The public prosecution system of India is failing to cater to the needs of the victims and is by far the most impaired pillar of the Indian criminal justice system.
The Andhra Pradesh High Court recently took note of the huge numbers of vacancies of PP's in the state as only 70 positions had been occupied out of a total of 270. The court expressed its anguish over the fact that one PP was in charge of multiple courts.
As per an empirical study conducted in 2016, the number of PPs in India is so miserable that sometimes even judges have to wait for the PP to come and argue before them, after they are done with their pleadings before the other court.
Given the fact that nearly 3.5 crore cases are pending in Indian courts, it is clear that the numbers of PPs being appointed is abysmal, when compared against the numbers of pending cases.
This also means that the workload on the PPs is enormous and it takes a toll on their efficiency and alienates them from the adjudicatory process. The Andhra Pradesh High Court also noted that alienation of PPs and the resultant inefficiency is compromising with rights of the victims, as many a times the criminals manage to get bail and acquittals, due to the failings of the state.
Apart from the inefficiency of PP's which stems from excessive workload, the victim’s rights also take a backseat due to the PP’s lack of expertise and resources. It has been seen that many a times, they fail to examine material witnesses and introduce material evidence before the court. Even more so, they do not have access to requisite infrastructure, research material, laptops and so on.
The impact of an ill-equipped prosecution system on the victims’ rights is compounded due to the lack of sensitivity and sensitization. The PPs are not able to empathize with the victim and are not able to assist them in a meaningful way thereby making the trial very tiresome, complex and traumatizing for them.
2. The Way ahead:
It is clear from the above discussion that allowing for an absolute privatization of prosecution will grievously hit the rights of the accused, while the present system of state monopoly in prosecution is acutely affecting the rights of the victims due to twin factors of lack of quality and quantity.
These two extreme equations call for an equilibrium between the rights of the accused and the victim. This equilibrium can be achieved by repairing and reforming the public prosecution system of India.
Firstly, the definition of PP needs to be amended for the purposes of clarity. As per section 2 (U) of CRPC PP includes any person appointed in accordance with section 24 of the act and any other person acting under them.
The former part of the definition ensures quality checks as Section 24 provides that they should have a minimum of 7 years of practice, they should be a part of the regular cadre of PPs maintained by the state which is culled from the successful candidates after taking an exam and appearing for an interview, or they need to be directly appointed by the district magistrate after a consultation with the sessions judge.
However, the latter part of definition in section 2 (U) is excessively broad and can lead to arbitrary delegation of power by the PP to inexperienced lawyers who might have not even have much expertise, thereby impairing the prosecution’s case and endangering victim’s rights.
The paradox of this section is that despite having such a broad definition of PPs, Indian courts are witnessing a severe dearth of PPs.
This shows that the present system is neither able to guarantee quality, nor quantity. Thus, there is need to remove the latter part of the definition and appoint more number of experienced and well equipped PPs in order to ensure speedy justice, fair trials and optimal conviction rates.
Secondly, the PPs which are appointed from regular cadre of states, are supposed to take a written exam conducted by UPSC which is followed by an interview, however unlike, civil servants and magistrates, they are not supposed to undergo any training before they take over the position. The objective exams and short interviews conducted by the UPSC are not enough to ensure that the persons being recruited are equipped with requisite legal expertise and emotional quotient.
Moreover, even this safeguard goes away in the cases where PPs are directly appointed on the recommendation of the district magistrate and sessions judge in accordance with section 24 (4) and 24 (5) (2) of CRPC. Thus, there is a need to develop a model training program to develop their legal and investigative skills and to provide them with a fresh perspective on the law and constitution, from Prosecutions point of view. Along with this, there is a need to conduct periodical sensitization sessions and training workshops so that they are able to handle the victim’s case with sensitivity and skill.
Thirdly, the appointments by magistrates as per the method prescribed in section 24 (4) happen rarely because the perks offered to defense lawyers are far more lucrative than the pay scales of PPs who are salaried public officers. As a consequence, most of the PPs are appointed from the regular cadre of states as per the method prescribed in section 24 (6), which is susceptible to political influence.
In order to ensure that the rights of the victims and the quality of the criminal justice system is not traded off for nepotism or political considerations, There is a need to ensure the independence of the prosecution from the police and politicians. . This can be done in two ways.
I. The central government, with the consent of the state, can shift public prosecution from the concurrent list to the union list and can thereby, create a central legislation reposing the powers to appoint the PPs in an independent and strong body.
II. The state governments can themselves implement the Criminal Amendment Act 2005 with full executive force and commitment and can set up independent directorates of prosecution (DoPs). As per the present law, the DoPs are to be led by advocates who work under the aegis of the state home department. But these bodies will prove to be effective only when the state governments relieve the body from the clutches of executive influence by vesting the power of appointment, determining tenure and fixing working conditions of the members of the DoPs and the PPs in any independent agency like, the acting or retired judges of the High Courts or the Supreme Court.
If all these reforms are carried out with seriousness, they can help in resolving the problems of quality and quantity that plague our public prosecution system.
The law inclines towards state control of prosecution. But this system has its own limitations and can be conceptualized in terms of lack of quantity and quality. These twin problems can be resolved by appointing more PPs with better qualifications and expertise, by training and sensitizing them and by ensuring their independence.
This will not only prove to be beneficial for the accused, but will also go a long way in espousing the rights of the victims.
(The author is an undergraduate student at the National Law School of India University, Bangalore)