Jurisprudence
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This article has been written by Zigishu Singh, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Crimes are considered a wrong against the society at large in addition to it being a wrong against the individual. Due to this convention, the state participates in criminal trials representing the people of a state in their collective capacity against the person accused of an offence. In both civil law and common law countries, the prosecutors are the counsels for states in criminal trials. The extent of the powers of a prosecutor varies from country to country, but their main function, which is to prosecute criminals in courts of law, is universal. 

The institution of prosecutors has generally been given lesser importance in the Indian legal system. The problems of the Criminal Justice System in India are often attributed to the lack of judicial manpower, inefficiencies of the investigation agencies of the police and corruption. The prosecutors receive lesser attention despite being a core part of the administration of criminal justice. Faster trials, good rates of convictions are the hallmarks of a good prosecution system and a strong prosecution mechanism plays a crucial part in establishing rule of law in society. Hence, it is necessary to bring vital reforms in the Criminal Laws of a country to make the prosecution system more efficient and fast.

The Indian system of Prosecution

Appointment of prosecutors

Before the Code of Criminal Procedure was enacted in 1973, crimes were prosecuted by public prosecutors who were under the control of the police department and answered directly to the District Superintendent of Police. Since the enactment of the Code of Criminal procedure, public prosecutors no longer function under the department of the police. An amendment was made in 2005 that allowed states to create a Directorate of Prosecution that will make all prosecutors of a particular state under the control of the Directorate except for the Advocate General of the State.

The following table discusses the categories of Prosecutors appointed by various authorities in India.

S. No.

Designation

Jurisdiction

Appointer

Experience required

1.

Public Prosecutor

High Court of a state

Central Government after consultation with High Court

7 years

2.

Additional Public Prosecutor

High Court of a state

Central Government after consultation with High Court

7 years

3.

Public Prosecutor(s)

District or local area

Central Government 

7 years

4.

Public Prosecutor

One or more than one district

State Government

7 years

5.

Additional Public Prosecutor(s)

One or more than one district

State Government

7 years

6.

Special Public Prosecutor

Particular case or class of cases

Central Government or State Government

10 years

7.

Assistant Public Prosecutor(s)

Particular case or class of cases to be tried in the court of magistrates

Central Government

Specified by the government

8.

Assistant Public Prosecutor(s)

Court of Magistrates in Every District of a state

State Government or District Magistrate in cases where no prosecutor available for a particular case

State appoints through an examination conducted by State Public Service Commissions.

District magistrate can appoint any person, even a police officer, provided the police officer is not below the rank of inspector and he/she has not taken part in the investigation of the offence to which he is appointed as a prosecutor.

The public prosecutors and additional public prosecutors appointed by the state government for a district are to be selected from a panel of persons who are considered eligible to become prosecutors. This panel of persons is prepared by the District Magistrate in consultation with the sessions judge.

In many states a regular Cadre of Prosecuting Officers exists, the prosecutors in such a cadre are selected through examinations conducted by the Public Service Commissions of a state and they are promoted to the post of Public Prosecutor. The state government has the power to appoint public prosecutors and additional public prosecutors from such a cadre if eligible candidates exist. However, if no eligible candidate exists in the existing cadre of prosecutors then the prosecutors are to be appointed from the panel of persons created by the District Magistrate in consultation with the Sessions Judge.

Role of prosecutors in the Criminal Justice System of India

In the Indian criminal justice system, the prosecution of offences in trials is preceded by the investigation of those particular offences by the police, there are other minor offences as well which are prosecuted by private parties, these are known as non-cognizable offences. Investigation of crimes is the domain of the police, for this purpose the police have been given the power to arrest person(s), search premises of the crime scene, seize documents or items related to the crime and other varied powers provided in the Code of Criminal Procedure to aid in investigation of a crime. 

It is a common assumption that the work of a prosecutor begins after the police is done with the investigation and the chargesheet is filed. Most judgments of various High Courts and the Supreme Court have commented on the conduct of a prosecutor concerning trial and the ethics that a prosecutor should adhere to. These developments just induce a prosecutor to conduct herself like another judge in the court. A prosecutor is the centerpiece of all trials in a court and has an important role in justice delivery to the victims. Let us look at the various trial and pre-trial stages where the prosecutor plays a crucial role:

Pre-trial

  • Obtaining an arrest warrant directed to one or more police officers under section 70 of the code of criminal procedure;
  • Obtaining search warrant to search premises for collection of evidence and documents crucial to investigation, under section 93 of the code of criminal procedure;
  • The prosecutor also plays an advisory role in suggesting to the police regarding the feasibility of proceeding with a case;
  • Obtaining custody of the accused for interrogation of the accused under section 167 of the code of criminal procedure;
  • Commencing proceedings in courts for declaring an accused a proclaimed offender in case he is not traceable, under section 82 of the code of criminal procedure;
  • Commencing proceedings for the attachment of property of an absconding accused after the issue of proclamation under section 83 of the code of criminal procedure;

During trial

  • The significance of the role of prosecutor in the trial is immense. In criminal jurisprudence, the accused is presumed to be innocent until proven guilty and the prosecution has to prove the guilt of an accused beyond any reasonable doubt;
  • The trial begins after a chargesheet is filed against the accused under section 173(2) of the code and cognizance of the offence is taken by the court under section 190 of the code;
  • The prosecutor is responsible for the efficient conduct of a trial from the stage of examination of witnesses till the delivery of judgment and during this course he performs numerous amounts of functions;
  • The prosecutor argues for an effective bail hearing of an accused keeping in mind the probability of an accused to abscond, tamper or destroy evidence and threaten witnesses;
  • The prosecutor needs to prove all evidence that has been gathered by the investigation which includes oral testimonies of persons recorded by police, documentary evidence gathered by the investigation team;
  • He conducts the examination-in-chief of the witnesses of the prosecution and cross-examination of defense witnesses to move the case in favor of conviction of accused;
  • The prosecutor has to lead forensic evidence in cases that involve the requirement of proving facts through scientific methods;
  • In sentencing hearings, the prosecutor plays a crucial role in helping the presiding officer to arrive at a reasonable and just decision regarding the punishment to be awarded to the accused in case of conviction;
  • The prosecutor also plays an important role in liaising with senior advocates for complicated matters and prosecutors working in Higher judiciary for the purpose of appeals, revisions, reviews, etc.

Problems with the Indian prosecution system

The founder of the National Judicial Academy Mr. N.R. Madhava Menon critiqued the prosecution system and said that it was the weakest link in India’s criminal justice system. Prosecutors are overburdened with cases, lack proper training and have issues regarding accountability. This has resulted in a rate of conviction as low as 26 percent, compared to 99 percent in countries like Japan. He also advocated for specialisation in prosecution, as a prosecutor cannot be thorough in all laws. 

Mr. Madhava Menon has also said that the inefficiencies of the criminal justice system have had an unintended effect, as the present criminal justice system is failing to protect the life and property of the ordinary people, people have started trusting Maoists and other extremist groups than the government and the police, in 60-odd districts of the country. Most Indians are of the view that the government and the police protect the interests of only the rich and the powerful.

The biggest problem with the prosecution system is that the Indian administration refuses to recognize the role of prosecutors as the most important cog in the machinery of the criminal justice system. The government, supreme court, high courts, law commissions and all other stakeholders consider the dearth of courts, availability of police personnel, political interference in high profile cases, corrupt officers and other factors as responsible for the deplorable state of the criminal justice system in India. While improvement of the above-mentioned elements is essential to make the justice system more efficient, it won’t be enough unless the prosecution system is completely revamped and is given more power. To deal with the problems thoroughly and arrive at solutions, it is necessary to categorise the different problems facing the Indian Prosecution System, let’s see:

Public prosecutor is not involved in the investigation

In R. Sarala vs. T.S. Velu, the Supreme Court had observed that investigation and prosecution are two different aspects of the criminal justice system. The role of a public prosecutor lies inside the Court, whereas investigation is outside the Court. Normally, the role of the public prosecutor commences after the investigation agency presents the case in the Court on the culmination of investigation. Involving the public prosecutor in investigation is injudicious as well as pernicious in law. The Investigation Officer must not be directed to consult the public prosecutor regarding investigation and submit a chargesheet in congruence with the views of the prosecutor. Public prosecutor is appointed for conducting any prosecution, appeal or proceedings in the Court. She is an officer of the Court. The public prosecutor deals with a different field in the administration of justice and should not be involved in investigation (available at: https://indiankanoon.org/doc/869137).

The above observation has also been accepted by the 197th report of the Law Commission of India. The Law Commission further observes that a Public Prosecutor needs to be independent of the executive and any other external controls, and by extension she should be independent of the police and the investigation process. She cannot advise the police on matters relating to investigation. She is independent of the Court but has duties to the Court. She is in charge of the trial, appeal and other processes in Court. She is, in fact, a limb of the judicial process, she is an officer of the Court and a minister of justice assisting the Court. She has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted.

The problem with the abovementioned school of thought is that it only looks good on paper and is detached from the ground realities. While there are honest law enforcement officials in India, the majority of the police is occupied by powerful, politically-connected police officers who engage in wilful misconduct during investigation. The conduct of these officers and their supervisors hurt the credibility of the criminal justice system. There are investigating officers who do not testify honestly, there are police officers who manufacture, destroy and tamper evidence, and even influence witnesses and force extra-judicial confessions, numerous instances of police misconduct have resulted in wrongful convictions.

The fact that around 70% of India’s prisoners are undertrials, attests to the inefficiency and built-in corruption in the police. On the other hand the honest police officers lack practical working skills, and are not educated in various laws and procedures leading to a sub-par investigation of the case. When such cases are sent for trial, they often lead to acquittals due to absence of substantial evidence and the blame comes on the prosecutors.

The flawed procedure of appointment

As stated above state prosecutors are appointed in the following ways:

  1. Either on a tenure basis from a panel prepared by the district magistrate in consultation with the sessions judge; or
  2. From a regular cadre of prosecutors maintained by the state.

There is no transparent protocol followed by the District Magistrate when preparing a panel and unfortunately, many states have abolished the requirement of consultation with the sessions judge which is a very worrisome practice as it opens the door to arbitrary appointments and deprives the appointment procedure of the expertise of the sessions judge. The district magistrate is an officer of the Indian Administrative Service and handles numerous matters apart from the appointment of prosecutors. 

He is neither equipped with the expertise to screen suitable candidates nor does his designation allow him to separately devote adequate time to learn the procedure of assessing the merit of candidates. This leaves absolutely no doubt that a panel created unilaterally by the district magistrate will reek of arbitrariness.

The states were also given the liberty to maintain a “regular cadre of prosecuting officers” and the states were directed to appoint prosecutors only from the cadre where a regular cadre of prosecutors was maintained. However, this practice was also dispensed away by many states through crafty amendments to the law and by other practices such as maintaining a cadre of only assistant prosecutors who were not competent enough to be appointed as public prosecutors. This leaves the process of appointment of prosecutors in the hands of the executive. The reason why many states go with this approach is that having a favourable prosecutor on their side allows them to direct a prosecutor to withdraw cases against persons of a political party or against corporations that enjoy political patronage.

Candidates selected as assistant prosecutors through Public Service Examinations are not tested thoroughly. The examination is a three-step process that merely requires memorization of the bare acts and writing answers in subjective papers to questions that are repeated in every examination. The stage of the interview is also conducted in a similar manner where the level of questions asked is unlikely to test the candidate’s capability. 

The training imparted to the selected candidates does not adequately prepare them to conduct the entire process of prosecution with efficiency, many aspects of prosecution can only be learned over time with practice. When the rights of a person are so heavily dependent on a single person, it is absurd to leave it to a class of lawyers who have just begun their practice.

The tremendous workload on prosecutors

The backlog of cases in the Indian courts needs no certification, Indian courts are universally notorious for their slow pace of trials. Cases remain pending for years at the stage of the trial itself and are further prolonged through the process of appeal which makes fighting a case a sentence in itself. Although a multitude of factors are responsible for this chronic ailment that plagues the judiciary, the prosecution system is blamed as well for little fault of theirs. 

Owing to some factors such as India’s large population and lower per capita income, the rate of crime is high in India. Managing law and order situations in populous states like Uttar Pradesh, Bihar, Madhya Pradesh, Maharashtra etc. is a daunting task. The deficit in the number of police personnel required to properly enforce law and order in such states becomes very difficult, hence crimes are inevitable.

The poor law and order situation is compounded by the similar lack of judges in the judiciary and prosecutors. One can find numerous reports and data on the vacancies at all levels of the judiciary, however the same cannot be said about the number of prosecutors present in the country and the exact requirement of the number of prosecutors. In practice though it has been seen that prosecutors are overburdened, an erratic system of appointment, lack of expertise, the huge pendency of cases and a large number of undertrials in prisons attest to the fact that the prosecutors have too much on their plate.

Recently, Telangana High Court observed that multiple courts are handled by only a single prosecutor which is against the norm. The court also said that excessive workload hampers the quality of prosecution and is seen in the work of many prosecutors. Many public prosecutors are not well-trained. They forget to examine material witnesses or present crucial evidence which is the leading cause of accused persons getting acquitted or being released on bail. The infrastructure and facilities provided to prosecutors are also sub-par in many states, which tells that that most governments do not take prosecution of crime seriously.

Assistant prosecutors take on cases at the courts of magistrates where the offences although are less severe but form the bulk of criminal litigations in India. A young prosecutor is unlikely to have adequate experience of managing her docket efficiently, furthermore a young prosecutor generally needs help in conducting cases and often requires clarifications on complex questions of fact and law for which they have to seek the help of senior prosecutors. This usually results in unnecessary adjournments which can be avoided.

Senior prosecutors do not have it easy either, they have to deal with faulty investigations by inefficient officers, they have to decide regarding the feasibility of prosecutions in a case. They have to attend appellate proceedings, pre-trial proceedings and have to manage the assistant prosecutors as well. All this leaves little time for a prosecutor to efficiently handle the cases allotted to him. This is further compounded by the relatively lower pay a prosecutor receives compared to a defence counsel. All the above factors make the role of the prosecutor less lucrative and hence does not attract the best of what the bar has to offer. Ultimately the criminal justice system suffers as a whole.

Absence of accountability in the system

It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. This rule is however not followed by prosecutors in criminal trials. The responsibility of producing the best possible evidence lies first on the investigation and then the prosecution. However, due to lack of due diligence, political interference, corruption and many other factors, it has been observed that cases are ruined by the non-production of best evidence. Failure to lead best evidence also leads the court to raise serious doubts on the case of prosecution. 

Misconduct of the prosecutors and deliberately not following the best practices to establish a case is not accounted for by any authority. Most prosecutors are appointed by the government and they serve at their pleasure. It is not known whether the directorates of prosecution in various states have any power to issue strictures against errant and unscrupulous prosecutors as their tenures are fixed by the government.

The code of criminal procedure provides the prosecutor the power to withdraw a case after satisfying the court that it is in the interests of justice. However, time and again this power has been abused by the state governments numerous times to withdraw cases filed against members of political parties or persons who enjoy political protection. The type of cases withdrawn over the years consists of serious offences such as vandalism, disobedience to order promulgated by a public servant, etc.

This practice continues unabated and is seen after every election, the prosecutor without applying his mind or asserting independence just follows the orders received from the government. No action is taken by the Supreme Court against this malpractice despite the guidelines given regarding exercise of power of withdrawal given in a catena of decisions such as Balvant Singh vs State of Bihar and Subhash vs. State.

Rise of specialized crimes

The paradigm shift in society due to the introduction of technology in all spheres of administration and the enactment of numerous laws to deal with crimes efficiently has made it necessary for lawyers to specialize in multiple fields of law and keep them updated with the developing jurisprudence around a law. Prosecutors are not well equipped to deal with the new emerging crimes, the increasingly complex nature of evidence and the clever tactics employed by criminals to avoid apprehension.

Some factors responsible for this such as:

  • Poor infrastructure of offices of prosecutors and lack of facilities such as libraries, lack of coordination with the investigation;
  • The overflowing docket of the prosecutors;
  • No arrangement for imparting specialized training to prosecutors.

The road ahead

Everything has been said already, but as no one listens, we must always begin again.” Andre Gide, French Thinker and Writer. This quote summarises the whole picture of Indian Criminal Justice Machinery. Recommendations of specialized Committees, reports of Law Commissions, guidelines of the Supreme Court remain just letters on paper and do not percolate down the roots of the system. The government by forming committees just does lip-service to the burning questions asked by the populace, and when it comes to implementing the recommendations the government is either lacking the finance or the initiative to do so. Same goes for the other important limbs of the system viz. lower judiciary, prosecutors, state governments, civil society.

The investigation of a criminal case, however good and painstaking it may be, will be rendered fruitless, if the prosecution machinery is indifferent or inefficient. One of the well-known causes for the failure of a large number of prosecutions is the poor performance of the prosecution. Investigation is hardly upto the mark in most cases and when it is good, it’s rendered nugatory when supplemented by poor prosecutorial conduct. The actual problem lies with the age old system of prosecution itself. 

The highest minds of the legal field are trying to fix a system that broke down a long time ago. Reiterating lofty ideals in every judgment and report and directing prosecutors to be upright and ethical in their approach does not work. We already have a comprehensive constitution that expects all its citizens to be morally just and observe the ethical tenets of their profession and how much the country adheres to it needs no clarification.

Success of the prosecution depends on the proper coordination between the prosecutor and the Investigating Officer and a prosecutor cannot but show genuine interest in the nuances of the investigation process. The higher courts, and committee reports do not help the cause of effective administration by confining the prosecution and investigation into watertight compartments. Law and order is the domain of police, but effective prosecution, completion of trials in a time bound manner and securing convictions require the Investigation and prosecution to work in tandem and a synergy is needed between both the departments.

Decades of experience has shown us that the criminal justice system in its current form will not yield desired results. A radical overhaul of the entire machinery is needed and the coordination of both the investigation department and prosecution is required at every level whether it is district or state. Introducing new changes will require a look at the prosecution systems followed in the other Common Law countries viz. The USA and the UK and borrowing their best practices and implementing them in India.

Elected attorneys of United States of America and the Crown Prosecution Service in England & Wales

Prosecution system of U.S.A

The system of elected prosecutors whether called district attorneys, state’s attorneys, prosecuting attorneys, or county attorneys began in colonial America. American prosecutors began as appointed government officers, and they have remained so in the federal government. However, between 1832 and 186o, nearly three-quarters of the states in the Union decided to give voters the right to elect public prosecutors. The change in the method of selecting prosecutors occurred during the same era. Between 1820 and 186o, states across the country adopted new constitutions to enlarge voting franchises, reapportion legislatures, and make many more government offices, including governors and judges. Those who supported election of prosecutors argued that popular elections would give citizens greater control over government, finish patronage appointments, and increase the responsiveness of prosecutors to the communities they served.

The United States of America is the only nation in the world where the public elects prosecutors. It is an example of a country where the prosecution has the prime responsibility in the working of the criminal justice system. At the federal level, a set of US Attorneys working under the US Attorney General prosecute criminal cases which come under federal laws, they argue in both trial and appellate courts. 

They initiate prosecutions in cases and also have the authority to direct investigative agencies to conduct investigations of crimes. The attorneys can also use the grand jury process to investigate on their own.They can supervise investigations and collect evidence, other functions include filing subpoenas, plea bargaining, charge framing and ensuring rights to both victims and accused.

Each state has its own State Attorney General who is also an elected representative. All the State Attorneys are members of the National Association of Attorney Generals, a national institution that facilitates inter-state cooperation and conducts policy research and training programs for attorneys and their staff. Prosecutors also regulate the entire plea-bargaining system and statistics have shown that almost in 90% of cases defendants plead guilty. Although this practice results in over-charging criminals, it has been effective in securing a good number of convictions and dispenses with the need to conduct long drawn trials.

The best thing about the system of elected attorneys in the United States is that it gives the control of criminal justice administration to the people of a district. Since a prosecutor is the main driver of the criminal justice machinery, it is apt that he should be made accountable to the people and not the government. The increased powers and freedom of operation that a District Attorney enjoys has a direct effect on how the crimes are controlled in an area. He is neither hostage to the demands of the government nor the bureaucracy of the investigation department.

Some problems and concerns regarding election of prosecutors are as listed below:

  • Voters might not be able to judge the qualifications of candidates for the post of prosecutor, voters do not have sound legal knowledge to assess the merit of the candidates;
  • One worrying concern that has been noticed that prosecutors have started contesting elections on political party tickets which makes them potentially susceptible to corruption;
  • Prosecutors might seek more convictions to appeal to voters to secure re-election;
  • Problems of evolving crime tactics has affected prosecutors in the U.S.A as well, particularly the use of digital equipment;
  • Prosecutors have too much power and can influence the course of legislation and policies in the administration of crime in the state.

Prosecution system of England & Wales

The Crown Prosecution Service (the CPS) originated in the Report of the Royal Commission on Criminal Procedure, chaired by Sir Cyril Philips, published in 1981. The Report concluded that it was undesirable that the police continue the process of investigation and prosecution of crimes, and that the differing practices of prosecution throughout England and Wales needed to be homogenised. Philips advised that the process of investigation and charge-sheeting a person with an offence should remain with the police, but the conduct of the prosecution should be the responsibility of a new locally-based prosecuting service with a nation-wide ambit. 

The Government at that time accepted in principle the recommendations for a new Prosecuting Service, but the Service would not be made locally accountable. The Government therefore opted for the establishment of a national Prosecution Service headed by the Director of Public Prosecutions and under the superintendence of the Attorney General, which would not be accountable to any local body. This concept was embodied in the Prosecution of Offences Act 1985 which created the Crown Prosecution Service in 1986.

It can be seen that the events that lead to the establishment of Crown Prosecution Service are similar to what happened in India. In India also before the advent of the Code of Criminal Procedure, the process of prosecution was in the hands of police. After the code was enacted and subsequent amendments were made the function of investigation and filing charge sheet was left to police, and states were directed to create directorates of prosecution along the lines of the Crown Prosecution Service(hereinafter to be referred as CPS), the only difference being the national character of the CPS. India being a huge country with differing state realities needed prosecution bodies at the state level and a national body was inconceivable.

One of the powers that a CPS lawyer has which the Indian prosecutor lacks is to review the evidence in the file in order to decide whether it justifies the charge laid by the police, applying criteria set out in the Code for Crown Prosecutors. If the evidence is not sufficient, the lawyer may either add a lesser charge (downgrading) or discontinue the prosecution altogether. This has both good and bad implications, on one hand unnecessary prosecution is avoided saving the time for more important cases, but if the investigation is sub-par the rights of the victim take a backseat for no fault of hers as her case does not proceed further.

In other aspects the CPS functions similar to the Indian system of prosecution, in its role as the public prosecutor, the Crown Prosecution Service works with the courts, the police and other agencies in the criminal justice system. This includes advising the police on potential prosecutions and assuming control of prosecutions initiated by the police.

Since the inception of the CPS, it has been marred by funding problems. It has been criticized for being overly centralised, bureaucratic, ineffective and too close to the police. Further the CPS has been criticized for the following:

  • Despite the level of crime rising in the UK, the level of prosecutions being conducted by the CPS has been falling. In the year ending March 2019, 5.3 million crimes were recorded by police in England and Wales, compared with 3.9 million in 2011/12 and over the same period, the number of prosecutions brought by the Crown Prosecution Service (CPS) fell by 46%.
  • There have previously been concerns that a number of high profile cases have collapsed because of a failure by prosecutors at the CPS to disclose key evidence as required to the defence. The 2018 House of Commons Justice Committee described this as a ”symptomatic of a criminal justice system under significant strain”. This problem is similar to what we have seen in India as well.
  • The most serious allegation against the CPS is that it has failed to fulfil its function as an independent body from the police, this perceived lack of independence in some quarters has resulted from a variety of factors, but is mainly attributed to a lack of resources to investigate police files and an over-reliance on police for information. This has led to criticisms that the CPS is merely facilitating the fulfilment of the police’s agenda, and is contrary to what the CPS was established to prevent.

The ideal system for India

Indian prosecution system suffers from a lot of problems and it is high time to reconstitute the entire system from ground zero. Prosecution is the engine of criminal justice and it needs to be given more liberty to operate. After briefly learning the prosecution systems of two other common law countries, the author thinks that we need to borrow from the best practices of the United States of America and England & Wales and assimilate them into our system keeping in mind the ground realities of our society. The following changes are suggested to make the Criminal Justice System better:

The system of election of prosecutors must be established in India

  • Just like in the U.S.A. Prosecutors in India must be elected for each District of a state, by the people of the district.
  • Elections for all districts in a state can be held just like legislative assembly elections.
  • The eligibility of the contesting candidates must be decided by the state government in consultation with the High Court of the state and only the candidates with experience of 15-20 years or above must be allowed to contest. Retired judges of the High Courts and Supreme Court must be eligible as well keeping in mind the linguistic requirements of a district.
  • The candidates should not be allowed to contest on tickets of political parties to avoid the problems faced by the US system of election of prosecutors.
  • To ensure absence of political backing, the candidates must submit an affidavit declaring their assets and liabilities and any campaign funding must be done through a transparent system of electoral bonds.
  • Malpractices in the election process shall render the candidate ineligible for election.
  • The term of District attorney should be made upto 6 years, although this can be changed according to the time taken for completion trials in different states.

Powers of the office of District Attorney

  • To ensure effective investigation of crimes the district attorney should be given the power to supervise the investigation process when needed. This power however should be made to exercise sparingly only in cases where the District Attorney considers it fit to intervene for the ends of justice. For this purpose appropriate amendments can be made in Chapter XII of the Code of Criminal Procedure.
  • The office of district attorney should be provided with extensive powers concerning investigation, access to contact with the District Superintendent of Police, the District Magistrate and the District and Sessions Judge for administrative purposes.
  • The District Attorney must be given powers to hire additional prosecutors and assistant prosecutors from the bar having requisite experience to handle less serious offences. This will remove the need for maintaining a cadre of prosecutors and conducting examinations for recruitment of law students as prosecutors.
  • If the need arises, the district attorney must be given powers to liaise with senior advocates and special advocates for the purpose of prosecuting complex crimes. Adequate funding must be given to the office of district attorney for this purpose.

Jurisdiction of the District Attorney

  • Apart from the jurisdiction to prosecute the crimes committed in a district, the district attorney should also be allowed to contest any appeals, revisions, reviews arising from the trial. 
  • For special acts like POCSO, Prevention of Corruption of Act, UAPA the system of appointment of special prosecutors must be kept alive.
  • In metropolitan cities the powers and funding of the office of the District Attorney must be increased keeping in mind the large number of cases.
  • A national association of District attorneys must be established on the lines of the Bar Council of India for the purposes of keeping track of performances of various district attorneys in India and for the purpose of exchange of best practices of different states and other functions. The national association must also be constituted through internal elections and posts of president, vice president and secretary must have limited terms.
  • The office of the District attorney shall be independent of the state government.

Accountability of the office of District Attorney

  • The most appropriate measure of accountability will be the people themselves, as people are more aware of the crime situation in their locality and if the criminal justice system is diligent in prosecuting and securing rights of victims then it will automatically reflect upon the mettle of the District Attorney.
  • Other than elections, the High Courts and the Supreme Court must be given the power to issue strictures against a district attorney to check any abuse of powers by overzealous District Attorneys and to curb unnecessary conviction seeking tendencies.
  • Office of the district attorney must be made accessible under the purview of Right to Information Act keeping in mind reasonable restrictions to prevent unwarranted intrusion.
  • The District Attorney for the purposes of Prevention of Corruption Act must be made a public servant and any embezzlement of funds or abuse of his office will render him liable to criminal prosecution.
  • The District Attorney shall also be made accountable to the State Lokayukta for any charge of corruption or misuse of public office.

Other measures

  • The salaries, emoluments, facilities should be given as per the rules created by the government.
  • Experts in the field of information technology should be employed by the office of District Attorney so that the prosecution system works efficiently. Novel practices should be implemented which help in the process of speedy trials.
  • The National association of District Attorneys should be made the premier body to gather data, file reports and review working of the system of the District Attorneys and their recommendations should be considered when preparing new legislations or bringing policies in the field of criminal justice system.

The Crown Prosecution System is not suitable for a vast country like India whose administrative system is more similar to the United States of America, hence creating a national body and giving it the power to prosecute all cases in a country is not feasible. The Supreme Court has repeatedly observed that the Public Prosecutor acts as the minister of Justice and not just another pleader in the court. Such a huge responsibility requires the prosecutor to be completely independent from the leash of the executive. The current system of India does not allow a prosecutor to act like a minister of Justice, one one hand he is limited by the inefficiencies of the investigation and on the other hand he is a puppet of the executive, and what is even more ridiculous is the label of the weakest link that is slapped on prosecutors. Prosecutors are made scapegoats due to the shortcomings of the police and the vested interests of the state governments. 

If the governments of different states are serious about controlling crime then they need to give the prosecutors absolute control in matters of conduct of a case. The prosecutor is the only authority that deals with the police, the judges and the state as well on a regular basis and any positive change can begin with them only. However, this requires sweeping changes in many statutes as we are introducing a completely new system. The Constitution needs to be amended as well as the subject of prosecution lies in the concurrent list which means states can mess up any good reforms envisaged by the Central Government as they have done in the past.

Conclusion

Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker (1972) 1 All ER 997). Personal security of citizens and prevention of crime is one of the foremost duties of a nation state and India is failing at it badly. Every year we as a nation drop down in rankings of so many indices about the world’s countries regarding matters of safety of women, enforcing speedy trials, police corruption, custodial tortures etc. More than seventy years have passed since independence and our country still struggles in providing one of the most basic human rights. Although the failings of the country in this aspect cannot be pinned on the prosecutors alone, regardless of that it is the most important part of the structure of criminal administration and the first change should begin with reforming the system of prosecution.

Separation of powers of the legislature, executive and judiciary is the fundamental principle of Indian constitution. Even though the police and the prosecutors belong to different categories but due to their importance in criminal justice they need to work in tandem and directing them to compartmentalize is wishful thinking. The Supreme Court itself recently discussed the feasibility of creating an independent and separate cadre of Judicial Magistrates for monitoring evidence collection during criminal investigation, which only indicates that it recognizes the failings of the current system and there is a need for judicial guidance in the matters of the investigation by the police. The purpose will be better served by the prosecutor than a magistrate whose requirements lie on the bench and not on the field. 


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