[Vidhispeaks] Prosecutorial independence compromised by politics

By Aditya Ranjan

For the past one and a half years, the Government and Lieutenant Governor (LG) of the National Capital Territory of Delhi (NCT) have been involved in a political confrontation over the appointment of Special Public Prosecutors (SPPs).

This confrontation commenced when the Delhi Police suggested a list of 11 SPPs for prosecuting cases related to the 2020 Delhi riots. While the Delhi government rejected this proposal by the Delhi Police, the LG issued a notification to the government instructing that the appointments should be made as per the Delhi Police’s proposal.

To address this conflict of opinions, the LG resorted to Article 239AA(4) of the Constitution which empowers the LG to refer any matter to the President in cases of difference of opinion between the LG and the council of ministers. The President approved the panel suggested by Delhi Police to handle the prosecution in cases related to the riots.

This year, a similar set of events transpired for another class of politically sensitive cases – criminal cases related to the ongoing protests against farm laws. The Delhi Police requested the Delhi government to appoint select advocates as SPPs for the prosecution of these cases.

Even though the Delhi government rejected the panel of advocates suggested by the Delhi Police, the LG, with the approval of the President, again overruled the decision of the Delhi government and approved the appointment of advocates selected by the Delhi Police as SPPs for these cases.

The Delhi government then filed a petition against the LG’s decision to appoint a panel of advocates recommended by the Delhi Police for both these cases. The Delhi government argued that the appointment of SPPs chosen by the Delhi Police will jeopardise fair trial in these cases and that it will impinge on the independence of Public Prosecutors. At present, the petition is pending before the Delhi High Court.

While the separation of police and prosecutorial powers is crucial for the independence of the prosecution, these events raise another significant concern regarding the political interference in the prosecution of cases. As being witnessed in Delhi, the appointment of handpicked advocates as SPPs and ousting of regular prosecutors is one of the common ways in which the executive influences and interferes with the functioning of the office of prosecution.

Why Special Public Prosecutors?

Section 24 of the Code of Criminal Procedure (CrPC) provides the framework for the appointment of Public Prosecutors by the Union and State governments. While the provision mandates consultation with the judiciary for the appointment of Public Prosecutors and Assistant Public Prosecutors, the Section has entrusted governments with wide discretion for the appointment of SPPs. Under Section 24(8) of the CrPC, the government may appoint any advocate, with more than 10 years of experience, as the SPP to conduct prosecution in a specific case or a specific class of cases.

The judiciary has attempted to address the concern regarding such wide discretion in cases where the appointment of SPPs was challenged.

In 2001, the Madhya Pradesh High Court in Poonamchand Jain v. the State of MP, discussed the appointment of SPPs and held that since such appointment results in the ouster of the Public Prosecutors appointed under the CrPC, the government must objectively assess the facts and circumstances and ascribe reasons for such appointment. The court further said that the serious nature of the crime or the pressure from media are not special grounds that warrant the appointment of an SPP.

However, in practice, the appointment of SPPs remains discretionary, thus providing a window for political interference into the prosecution through the appointment of handpicked advocates.

Appointment of SPPs in politically sensitive cases

Often, the government uses the provision for appointment of SPPs to oust the regular Public Prosecutors and influence politically sensitive trials. Such political interference affects the routine functioning of the criminal justice system and results in executive influence on the narrative presented in the court in such sensitive cases.

Further, in several instances, governments have also used the provision for appointment of SPPs, to appoint ‘top advocates’ in cases that attract media and public attention. Such appointments are intended to display sincere efforts by the government to punish criminals and gain public support.

However, this harms the public trust in the regular prosecution system and their ability to attain justice for the victims of the crime. Further, by shifting the responsibility of prosecution in sensitive cases to experienced lawyers, the executive tends to abdicate its responsibility to reform the office of public prosecution.

Need for checks on executive discretion

The prosecution is a key part of our criminal justice system. As ministers of justice, they are responsible to help courts in administering justice. Further, as part of the judiciary, they are also responsible to keep a check on police, executive and political parties in power by prosecuting cases related to criminal misconduct and offences committed by them. In this respect, it is unfortunate that the independence of the office of prosecution is often compromised for political gains and objectives.

To prevent such instances, it is important to isolate the prosecution from not just the influence of police, but also the executive. To this end, there must be a check on governments’ broad discretionary powers to appoint SPPs in criminal cases. Strict guidelines should be devised to determine whether a criminal case warrants the appointment of a special officer to conduct the prosecution.

Further, to address concerns over competency, regular Public Prosecutors should be equipped with adequate assistance to prosecute sensitive cases. These structural changes will allow Public Prosecutors and the criminal justice system to work independently and deliver justice.

Aditya Ranjan is a Research Fellow at Vidhi Centre for Legal Policy.

Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.