“A public prosecutor’s duty is not merely to secure conviction but place all available evidence before the court for it to decide”.
This dictum, laid down by the Oudh High Court 1933 in the Ghirro case and repeated subsequently in many pronouncements of various Indian high courts as well as the Supreme Court, even last month, vouchsafes the independence of the office of public prosecutors from governmental influence and interference, upholding their role – first and foremost – as officers of the court.
But in an act showing blatant disregard towards this principle, the Madhya Pradesh government, in a move that flew under the radar, had embarked upon a plan to reward public prosecutors with incentives and evaluate their performance based on how many convictions and tough sentences they secure. This new scheme militates against all principles of prosecutorial independence and drives a cruel blow to the criminal justice system.
The reward scheme and its fallout
According to the plan, the Shivraj Singh Chouhan government has devised a “reward system” to “motivate” its prosecutors to ensure speedy trials and quick convictions — 1,000 points for a death sentence, 500 for a life term, 100-200 points for maximum punishment in lower courts, tags like “best prosecutor of the month” and “pride of prosecution” for those who have collected over 2,000 points, and a strict warning to those who get less than 500 points per month.
Moreover, last year, the government introduced the ‘e-Prosecution MP’ app, which can be downloaded from Google Play Store. The app will track the day-to-day activities of 1,000 government prosecutors across the state.
As of now, the government’s plan seems to be working, especially if one sees the spate of death sentences the courts in Madhya Pradhesh have awarded in the last seven months. A total of 12 death sentences were awarded in this period. In one case, the trial was completed and death sentence announced in just 46 days, because of the alacrity of the public prosecutor and the tearing hurry of the judge.
Rajendra Kumar, the director of prosecution, told The Wire that the new system has “shaken up” public prosecutors from their cavalier attitude of saying “case toh court mein hai” (What to do? The case is in court), ensuring speedy trials and swift convictions, especially in capital cases. “They are competing with each other to score maximum points. With the reward system in place, prosecutors now go the extra mile to log more points. Though there’s no monetary award yet, these achievements will be recorded in their annual confidential report,” he said.
In S.B. Shahane v State of Maharahstra (1995) a two-judge bench of the Supreme Court, while deciding upon the appointments of public prosecutors, made it clear that the office of public prosecutors needs to be strictly separated from the police department. Fairness in prosecution must be seen to be demonstrated, the court ruled.
The Madhya Pradesh government’s plan evidently throws this caution to the wind. By incentivising public prosecutors into competing with each other to secure maximum convictions and tough sentences, the plan plays into the hands of the police, which wants to show “results”, irrespective of the process of justice. This poses a serious challenge to the autonomy of prosecutors and will affect how they exercise their discretion.
In India, no research is available about the misuse and abuse of discretion which prosecutors enjoy by virtue of their powers under the code of criminal procedure In the west, especially the US, it is a serious concern. For instance, a 1988 report in the New York Times stated that the subject was so controversial that was the focus of more than 200 law review articles and 280 federal court cases in the span of a few years. This excludes the scholarly law articles, speeches and the cases in state and local courts, such as analysis of disciplinary regulation that can address abuse of prosecutorial discretion.
Let us for a moment assume how such abuse of discretion might manifest itself in India. A public prosecutor might have access to exculpatory evidence against the accused, but withhold it from the court, because that would significantly reduce his chances of securing a conviction. In India, the Brady Rule (laid down by the US Supreme Court, which mandates that prosecutors are bound to reveal exculpatory evidence against the accused) is missing in criminal jurisprudence and prosecutors have no duty of disclosure.
This would then result in conviction standing on weak footing, with a high chance of being overturned on appeal. But only a few accused can afford to appeal. There have been several cases of people spending years on death row, as the cases face trial delays and several other issues.
Expert advice and recommendations
A 2005 report on public prosecutors prepared by Bikramjeet Batra, Vrinda Grover and Shomona Khanna closely studied the prosecutorial system in different states. It did not mince any words while emphasising that the system was still in the clutches of the police and suffered from governmental interference and control, from which it must be freed to secure the ends of justice.
The Law Commission of India, in its 14th report (1958) observed that:
The impartiality of his [public prosecutor’s] conduct is vital to the impartiality of the court itself. In order to ensure that he is not regarded as a part of the police department, he should be seen as an independent official, an officer of the court.
This was repeated in the 197th report, which stated that “Public Prosecutor has to be independent of the executive and all external influences, also independent of the police and the investigation process. He cannot advice the police in matters relating to investigation. He has duties to the State, to the Court and to the accused. He has to discharge his duties objectively. He is in the position of a minister of justice assisting the Court.”
US criminologist and legal scholar Tracy R. Mears, in a 1995 paper advocated a rewards system that “motivates public prosecutors through financial incentives, and yet accommodates the necessity for prosecutorial discretion, while simultaneously recognizing the importance of encouraging the prosecutors to engage in conduct that exceeds constitutional minimums.”
Senior advocate and renowned criminal lawyer Rebecca John told The Wire, “This scheme is a serious abnegation of all constitutional principles settled over decades by courts of law, and poses a direct threat to the fundamental right to life and liberty. The accused persons would now be subjected to prosecutorial malevolence, and it would be too late before the injustice caused can be remedied. This is especially in a country like India where prosecutors have no legal duty to disclose evidence or information which goes in favour of the accused.”
- This is an ill-conceived and dangerous move, which unless thwarted at the earliest, could seriously jeopardise access to justice and justice itself.
A legal researcher who has worked extensively with the criminal justice system in India and is now with the UN, told The Wire on the condition of anonymity, “Anything that makes prosecutors more accountable is welcome, but the MP system of rewards needs more thorough consideration. A rewards system should focus on performance of the prosecutors in securing a conviction and not on the quantum of punishment sought. Incentivising death sentences and life sentences sends the wrong message to prosecutors that a higher punishment is always better. It further risks them seeking maximum punishment for private gain. This is not only dangerous for individual defendants, but also harms the integrity of the criminal justice system on the whole.”
Clearly, the MP government has ignored all principles, research and recommendations in coming up with its plan and has instead taken the tacitous plea that its action has been necessitated by the high crime rate, especially with regard to sexual offences.
This is an ill-conceived and dangerous move, which unless thwarted at the earliest, could seriously jeopardise access to justice and justice itself.
Saurav Datta divides his time between legal education and journalism and between Bombay and Delhi.