Friday, January 27, 2023

The Buck Stops Here

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Even as an All India Judicial Service is in the works, it’s time to strengthen law enforcement by an All India Prosecution Service which is independent, impartial and accountable like in other countries

By Justice (Retd) Kamaljit Singh Garewal

Criticism of any institution is easy but the critic must provide some useful suggestions to improve the system. A fortnight ago, readers who read my article, “From Crime to Punishment”, must have been left aghast at the way the criminal justice system works or does not work, leaving them utterly confused, the police sheepish, the judge with a sense of déjà vu and everyone else none the wiser. Therefore, I shall attempt, as is duty bound, to make some recommendations for reform, based on my study of prosecution processes conducted for the Punjab Governance Reforms Commission in 2012.

In the minority opinion of Justice PN Bhagwati in Bachan Singh (1982), the following words of Sir Winston S Churchill were quoted: “The mood and temper of the public with regard to the treatment of crimes and criminals is one of the most unfailing tests of civilisation of any country. A calm dispassionate recognition of the right of the accused, and even of the convicted criminal against the State, a constant heart-searching by all charged with the duty of punishment, tireless efforts towards the discovery of curative and regenerative process, unfailing faith that there is a treasure if you can only find it in the heart of every man—these are the symbols, which, in treatment of crime and the criminals, mark and measure the stored up strength of a nation and are sign and proof of the living virtue in it.”

The Indian State must demonstrate that it treats its citizens in the same way as Churchill wanted to do at the height of the British Empire. Although in practice, matters turned out differently in colonial India, his view is equally applicable to the republican India of today.

Many years ago, one of our leading lawyers, MC Setalvad, Attorney General of India, carried out a detailed study as chairman of the First Law Commission of India, and argued in favour of separating the prosecution from the police. Setalvad came to the conclusion that the police exercised too much control over the prosecution. The police did not have the legal know-how to conduct prosecution and did not possess the high degree of objectivity and detachment necessary for a prosecutor. The high degree of subjectivity and attachment of the police with the case implied that the prosecutor will be biased towards securing conviction.

Taking a cue from this valuable insight, our task group studied the development of criminal procedures and discovered that the Code of Criminal Procedure (CrPC), 1898, had been enjoying an unbroken reign and many provisions needed a second look after the Constitution came into force in 1950. Apart from rights to equality, freedom, protection in respect of conviction for offences, protection of life and personal liberty, protection against arrest and detention and Article 50 required separation of the judiciary from the executive.

The position in colonial times was that prosecution was completely under the control of the police. This state of affairs was continuing in spite of the unfairness of police-centric prosecution, whereas fairness required prosecution to be conducted by independent lawyers. This had suited the colonial administrator but was definitely unsuitable for our Republic, where citizens’ rights mattered. Setalvad noticed this and made the above very sweeping observation. But very little has changed.

In 1973, a new CrPC came into force. Prosecution was effectively separated by bringing it under Chapter II—Constitution of Criminal Court and Offices. Public prosecutors were appointed after consultation with the High Court, for conducting prosecution on behalf of the government. The district magistrate was empowered to appoint prosecutors in consultation with the sessions judge. The Parliament deliberately placed prosecutors alongside criminal courts and recognised that a prosecutor’s office was an essential part of these courts. Police investigations were deliberately kept out of this chapter.

In 1996, Justice KJ Reddy’s report on CrPC (154th report of the 14th Law Commission) recognised that prosecution had been completely separated from investigation. The Commission considered the report of the National Police Commission where a suggestion had been made to improve coordination between the prosecution and investigation by making the Directorate of Prosecution a part of the police department. The Law Commission, of course, rejected this and instead recommended that guidelines be prescribed for the desired coordination between the Directorate of Prosecution and the Investigation Agency of the Police for better investigation. The Supreme Court in Vineet Narain’s case made a strong recommendation for an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to that of the Director of Prosecutions in the UK. The Amendment of CrPC in 2006 introduced Section 25A (7) which required state governments to specify the powers and functions of the prosecutors, which has sadly remain unimplemented till date.

On the contrary, the Malimath Committee (2003) recommended that the Director of Prosecution should be a police officer of the rank of DGP. This recommendation is also unconstitutional and must be rejected because police officers in our country are very powerful and would not let prosecutors be free and independent.

In other countries, prosecutors are not only independent and impartial, but also accountable for their lapses. In the US, they take important decisions like initiating or declining prosecution, selecting charges, entering into plea bargain, opposing offers to plead no contest, entering into non-prosecution agreement in return for co-operation and participating in sentencing.

In England and Wales, a Royal Commission in 1962 recommended that police forces set up independent prosecution departments so as to avoid the same officer investigating and prosecuting cases. When this recommendation was not implemented, Phillips Commission in 1981 recommended formation of the Crown Prosecution Service with responsibility for all prosecutions in England and Wales. This led to the enactment of the Prosecution of Offences Act, 1985 and the establishment of Crown Prosecution Service in 1986.

The following passage from the Phillips Commission’s report will give an idea about the philosophy behind the view held by it which led to the creation of the Crown Prosecution Service, echoing Churchill’s sentiments:

“Is the system fair; first in the sense that it brings to trial only those against whom there is an adequate and properly prepared case and who it is in the public interest should be prosecuted, and secondly in that it does not display arbitrary and inexplicable differences in the way that individual cases or classes of case are treated locally or nationally? Is it open and accountable in the sense that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused? Is it efficient in the sense that it achieves the objects that are set for it with the minimum use of resources and the minimum delay? Each of these standards makes its own contribution to what we see as being the single overriding test of a successful system. Is it of a kind to have and does it in fact have the confidence of the public it serves?”

Other countries like Australia and Pakistan (Punjab) have also enacted legislation to separate investigation and prosecution duties. Australia has Director of Prosecution Act, 1983 and Pakistan has the Punjab Criminal Prosecution Services (Constitution, Powers and Functions) Act, 2006, with a provision to have a Prosecutor General, and a code of conduct for prosecutors based on the Havana Guidelines (1990). Lastly, France and Germany being civil law countries, have given a lot of powers to prosecutors to investigate cases.

Time has come to jettison the present police dominated prosecutions,  something we inherited from our colonial past. We must strengthen law enforcement by creating an All India Prosecution Service (under Article 312 of the Constitution) as an independent, impartial, well-equipped, well-staffed, well-trained and well-resourced service to conduct fair, impartial and fast prosecutions. This is the appropriate time to create this service as the nation debates the formation of an All India Judicial Service.

In contemporary India, criminal courts have to often try crimes like corporate fraud, international drug-trafficking, corruption in high places, money-laundering and cyber crime, some of which may have cross-border ramifications. Prosecution of these crimes requires specialised training.

To conclude, all prosecutors must ensure that every accused person gets a fair, impartial and speedy trial but also quick and condign punishment. Prosecutors must uphold the constitutional principle that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The decision to prosecute or not must be reached by the prosecutor on a review of the evidence collected by the police during investigation. Therefore, accountability for the success or failure of the prosecution must rest with the prosecutor alone.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York 

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