While much ink has been spilt on the differences between the Government’s version of the Lokpal Bill and Team Anna’s version of the Jan Lokpal Bill, very little has been said about the dangerous similarities between both versions..While much ink has been spilt on the differences between the Government’s version of the Lokpal Bill and Team Anna’s version of the Jan Lokpal Bill, very little has been said about the dangerous similarities between both versions..One such example is the provision in the Government’s draft which incorporates Team Anna’s demand to place both the investigating agency and the prosecuting agency under the control of the Lokpal. This is a dangerous suggestion which effectively over-rules three significant Reports of the Law Commission of India, all of which have made strong recommendations to ensure the separation of the investigating and prosecuting agencies..Originally in the 1950s there was no separation between the prosecutor and the investigator in India. As reported by the 14th Report of the Law Commission of India, submitted in 1958, police officers often doubled up as prosecutors in criminal cases and according to the Law Commission this was extremely problematic because of the differing roles of the investigating agency and the public prosecutor..The investigating agency is tasked with the investigation of crime and securing convictions. The credibility of these agencies is often based on the number of convictions that they are able to notch up and hence the incentive to torture and abuse the rights of the accused. The role of the public prosecutor in our system is however completely different as he or she is viewed as an officer of the court whose duty is not to ensure convictions but to assist the court in ensuring that justice is done. Therefore while the counsel for the accused is under no obligation to share information with the prosecutor, the latter is expected to share with the former any evidence that may prove the innocence of the accused. To place the prosecutor under the control of the investigating agency is to ensure that the prosecutor performs according to the command of the investigating agency, which is interested only in a conviction..As a result of these differing roles, the Law Commission recommended the creation of an independent cadre of public prosecutor in all states. This recommendation was accepted by the Parliament when it enacted the Code of Criminal Procedure (Cr.P.C), 1973. In fact, the Parliament went a step ahead and ensured that public prosecutors would be appointed only in consultation with either judges of the High Court or the Sessions Judge. This was an indicator that the Parliament viewed the Public Prosecutor as an officer of the Court rather than a political appointee, as is the case with other government law officers such as the Attorney General or the Advocate General..The 154th Report of the Law Commission of India which was submitted in 1996 reiterated all the conclusions of the 14th Report of the Law Commission of India. They also borrowed on the recommendations of the National Police Commission which had suggested the creation of an independent statutory office known as the Director of Public Prosecution (DPP). Several states do have such an office but it is not statutory and in some states the DPP is staffed by police officers and not lawyers..In 2006, the Prime Minister’s Office requested the Law Commission to study and submit a report on how to prevent the politicization of the office of the Public Prosecutor as most states had amended the Cr.P.C. to ensure that they could appoint ‘Special Public Prosecutors’ without prior judicial consultation with the High Court or the Sessions Judge. One of the recommendations by the PMO was to create a dedicated cadre of public prosecutors, all of whom would be chosen only through a written examination thereby ending the discretionary powers of appointment of the political executive. The Law Commission examined this issue in its 197th Report and recommended an amendment to the Cr.P.C. to delete the provision which allowed states to politicize the office of the Public Prosecutor. The Law Commission also supported the PMO’s proposal to ensure that public prosecutors were selected through a written examination, with the caveat that atleast 50 percent of the Public Prosecutors should be appointed from senior members of the Bar, in consultation with the judiciary as this would ensure the availability of a better skill set in the cadre..As is obvious from the above reports of the Law Commission, the debate over the office of the Public Prosecutor has been quite nuanced, at least by Indian standards. Instead of building up on the recommendations of the Law Commission, the Lokpal Bill takes us right back to the 50s where both the investigating agency and the prosecuting agency were under the same roof. Can we seriously expect the prosecutor to perform his impartial role when he or she is accountable to the Lokpal, which in itself is an institution that will be judged by only the number of convictions that it can secure in cases of corruption?.The inspiration behind this particular prosecutorial setup is still a mystery because the original Lokpal Bill of 1968 did not have any prosecutorial powers and the same is true for most ombudsman style institutions around the world. Team Anna’s legal advisors would do well to publish a white paper explaining the reasons for such confounding provisions in their version of the draft..T. Prashant Reddy is an alumnus of National Law School of India University (NLSIU), Bangalore and is currently practising in Hyderabad.
