In independent India, it goes without saying that the criminal justice system (hereafter CJS) must function within the framework of the principles enunciated by the Constitution. Broadly speaking, these are as follows : The guarantee of equality before the law Equal protection of the laws Prohibition of discrimination imposed upon the State Deprivation of life / personal liberty only in accordance with procedure established by law Presumption of innocence of the accused

The requirement of proof beyond reasonable doubt The right of the accused to remain silent Arrest and detention in accordance with law and judicial guidelines Protection against double jeopardy Non-retrospective punishment No appraisal of the criminal justice system can suggest derogation from these principles. Rather, it is these very principles that are the indicators on the basis of which any evaluation of the criminal justice system may be made.

The independence of the judicial system is a key element of the basic structure of Indian constitutional democracy via the separation of powers between the Legislature, Executive and Judiciary. Over the last fifty years there has been much debate and discussion on the independence of the Indian judicial system, with varying opinions depending upon the political, social and economic location of the discussants. This project examines and probes one specific component of the CJS, viz. the office of the Public Prosecutor in India.

It questions whether the above-mentioned constitutional principles and guarantees translate into reality during the course of criminal proceedings in an Indian court. The Rationale of Public Prosecution The underlying principle governing the CJS is that all crime (offences which have been codified as such in statutes) committed by an individual or groups against others are deemed to have been committed against society. Consequently the State takes action to prosecute the accused on behalf of, and in the interest of society.

The Supreme Court has discussed this thus; “Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book” (Thakur Ram vs. State of Bihar AIR 1996 SC 911). The rationale behind the State undertaking prosecutions appears to be that no private person uses the legal apparatus to wreak private vengeance on anyone.

In the CJS this role is performed by the Public Prosecutor on behalf of the State. The Public Prosecutor has been described as a Minister of Justice who plays a critical role in maintaining purity and impartiality in the field of administration of criminal justice ( Jitendra [email protected] Ajju vs. State (NCT of Delhi) Crl. W. P. 216/99, Delhi High Court). The last two decades have seen communal and fascist entities gain large support. Often their respective agendas contravene the avowed goals of the Indian Constitution. These forces repeatedly assert the interests of caste and communal elites.

The imperatives of fair trial and justice demand that the prosecution be insulated from such regimes and interests. Similarly the dictates of globalization and structural adjustment are propelling a transition within State policy from general welfare to the facilitation of finance capital and private business. This requires the legal system to respond in a particular manner. In circumstances wherein public interest and the public good are being redefined, it is unlikely that the Prosecutors office will remain unaffected.

Outside these developments, other pressures such as patriarchal prejudices and caste/class biases impinge upon the functioning of the State and its agencies. These questions assume greater significance in situations where those arraigned for trial are functionaries and agents of the State itself. Evidences related to the 1984 anti Sikh massacre in Delhi, the 1992 anti-Muslim violence in Mumbai and the 2002 state-sponsored genocide in Gujarat have all convincingly named and shown public servants in the role of perpetrators, conspirators and abettors in serious crimes including murder, rape and arson.

Can a Public Prosecutor functioning within the present system discharge the onerous burden of bringing such persons to book? Does this not make the case for greater autonomy for the prosecution to enable it to act freely and outside the executive? This project examines institutional and statutory checks and balances in the present legal system that enable the prosecutor to function independently uninfluenced by politics. The adequacy of these checks and the need for increased autonomy are key concerns of the project.

This project also looks at the pathetic state of infrastructure and facilities available to Public Prosecutors. It is paradoxical that although the rhetoric of a ‘hard’ state is propounded by parties of all hues, not even rudimentary facilities are provided to Public Prosecutors, entrusted with the task of ensuring that the guilty are brought to book. It is clear that the office of the Public Prosecutor needs more attention and more autonomy to ensure greater success. However, success cannot be measured in numbers of convictions.

All too often the rate of convictions becomes the sole indicator of the health of the Indian CJS. Concerns about its condition are valid, but the prognosis and diagnosis has to be accurate to avoid further deterioration. The Malimath Committee Report (2003) correctly acknowledged that there is a crisis in the Indian CJS. But its analysis of the crisis is disturbing. Rather than focusing on key issues that plague the CJS, the Committee recommended changes that amounted to a complete departure from jurisprudential norms.

It cannot be overemphasized that the health of the criminal justice system cannot be gauged from statistics of convictions or death sentences. Such analysis is not only faulty and misleading but also often contrary to legal and constitutional safeguards, with dangerous implications for citizens. This project is a starting point of a fresh debate on what ails India’s prosecution mechanisms and why the office of the Public Prosecutor needs greater autonomy.

The challenge before the Public Prosecutor is to maintain impartiality and neutrality while prosecuting any and all persons facing criminal prosecution. The assumption here is that the State is committed to safeguarding and promoting the interests and rights of all constituents of society. This premise ignores the segregated and hierarchical nature of Indian society. The bland notion of the State as a completely neutral instrument of a consensual popular will, upholding ‘national interest’ raises several issues.

One is the tendency of state institutions and personnel to coagulate and emerge as an interest in themselves. The phenomenon of corruption is symptomatic of this tendency, especially if we define corruption broadly as manifest not merely in financial defalcation, but also in the perversion from fidelity of state institutions. The question of equal access to justice by aggrieved citizens, regardless of their social and financial status is another. Furthermore, when entrenched interests within the State feel threatened, perverse motives can influence the decisions and procedures of the CJS. National’ and ‘social’ ideals may be cited in order to quell protest and criticism, and the instruments meant to protect citizens may become the instruments of oppression. This is why the ideal of separation of powers, and the autonomy of the judicial system is crucial to the very legitimacy of the State. The character of the State does not remain static. Over the last 20 years political and economic forces (internal and external) have dramatically altered and refashioned the Indian State and the CJS. It is at this historical juncture that there is need to examine and review the working of the office of the Public Prosecutor.


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