As the district and high courts commence the trial for the cases concerning Delhi riots, the Delhi government and the office of Lieutenant Governor (LG) have been involved in a confrontation over the appointment of public prosecutors.
The tussle between the office of the LG and the Delhi government has garnered attention for it raises important federal questions regarding the special status of Delhi. However, this article seeks to shed light on the other ‘special’ feature of this controversy: appointment of Special Public Prosecutors (SPP) by state and the way in which it interacts with the aims of the criminal justice system. The office of prosecution is often neglected in conversations about criminal justice reform. Recent developments in the Delhi Riots cases demonstrate that the way it is functioning needs urgent attention.
Appointment of SPPs in cases that attract public scrutiny
The role played by the prosecution in cases that are under public scrutiny has been at the centre stage of a series of political confrontations between the Delhi government and the Central government. The prosecution sanction for the chargesheet filed against Kanhaiya Kumar, Syed Umar Khalid and other student leaders was one such instance. Delhi police charged these student leaders with sedition for the incident that occurred in JNU campus in February 2016. However, in July 2019, Public Prosecutor, Rahul Mehra, in his opinion to the state government, called the charge sheet “flimsy” and stated that the act does not amount to sedition. Based on this opinion, the Delhi government has been reluctant to provide prosecution sanction for the case. However, after seven months, the Delhi government decided against the advice of the Public Prosecutor and granted prosecution sanction to the case.
The confrontations between the Delhi government and the Centre reignited in May 2020 over the prosecution of cases related to the Delhi riots. Recently, the Delhi Police recommended a panel of lawyers which included the Solicitor General Tushar Mehta to represent the state in the High Court and Supreme Court. The central government was asked to file written submissions on whether the Lt. Governor can unilaterally make such appointments. The cabinet ministers of the Delhi Government discussed the matter and rejected the panel proposed by the Delhi Police. The Lt. Governor, however, instructed the Home Department to notify the panel of lawyers and so it issued the notification stating that, “They shall conduct all court proceedings, including bails, trials, appeals miscellaneous matters, applications and writ petitions filed by the accused parties or NGOs in various courts in connection with the 85 FIRs that have been registered in respect of and related to the anti-CAA protests and riots cases.” The High Court too in light of these developments declared the matter infructuous.
These appointments raise serious concerns with regard to the independence offered to the office of the prosecution. To emphasise, the law is very clear that the Government of NCT Delhi has the power to appoint special public prosecutors for trial of offences in NCT Delhi. The Supreme Court has held that the Lt. Governor has to necessarily act on the aid and advice of the council of ministers.
It is important to note here that earlier the office of prosecution functioned under the supervision and control of the Police; before the adoption of the Code of Criminal Procedure in 1973, the office of the prosecution was under the control of the Police Department. This was acknowledged to have compromised the independence of prosecution and it was the reason why an independent office was created in the first place.
The turmoil between the state government and the Lt. Governor with regard to the appointment of prosecutors makes it very clear that the appointments in cases that attract public attention are politically motivated. Several civil society fact-finding reports have accused police officers for abetting and participating in the riots. In a situation where the actions of the investigative agency are under judicial consideration, it is important that the office of prosecution be allowed to function with autonomy.
Role of Public Prosecutors in Criminal Justice
A public prosecutor is the representative of the state. She performs multiple functions through the course of the criminal trial and assists the court in the administration of justice. and conduct trial on behalf of the state. During this process, the prosecution is expected to perform its functions independently and not as a mouthpiece of the investigative agency or the police.
An effective and independent prosecution is crucial to the criminal justice system since the prosecutors represent the interests of the state before the courts conducting criminal trials. The Code of Criminal Procedure (CrPC) identifies different categories of prosecutors to represent the state- Public Prosecutor, Additional Public Prosecutor and SPP.
Section 24 of CrPC provides that the appointment of Public Prosecutor or Additional Public Prosecutor must be through regular cadre or should involve consultation with Sessions Judge and High Court for appointment in District Courts and High Court respectively.
However, for the appointment of SPP, Section 24(8) gives wide discretion to state governments. The sub-section empowers the state government to appoint SPP for a specific case or a class of cases. The only statutory requirement for these appointments is that the lawyer should have at least 10 years of experience at the bar.
Need for examining such appointments
The manner in which the said provision has been used by the state governments presents two challenges to the reform of the criminal justice system: first, by using the provision too frequently, the executive tends to abdicate its responsibility of reforming the regular prosecution system; and second and more important, the rationale for appointments is not made public and it is unclear whether such a practice exists internally. In the absence of reasons grounded in merit or efficiency for the appointments of SPP, it gives the executive wide latitude to interfere in the trial process. Such interference, especially in politically charged cases such as Delhi riots, casts doubts over the independence and efficiency of the office of prosecution.
The provision allows for the appointment of experienced lawyers in complex cases. The competence and capacity constraints of the encadred or tenured public prosecutors have been used as an argument to justify such appointments. However as is indicated by the prefix ‘special’, this provision should be used sparingly, in cases where such an appointment is crucial to secure the ends of justice. It cannot be made the norm.
There have been many instances where the role of the SPP has been questioned. In 2019, in George AP v. State of Kerala, where the petitioner challenged the appointment of a new SPP and the termination of the previous one who was handling a murder case involving a Minister of State Cabinet as the accused, the Kerala High Court set aside the termination and held that the decision was arbitrary and politically motivated. Earlier, in the 2007 Mecca Masjid Bomb Blast case, thepolitical affiliation and merit of the SPP, N. Harinath, engaged for the prosecution of the case were under public scrutiny. Common political affiliations of the SPP and the prime accused in the case, rendered his appointment quite suspect.
While empirical studies in this regard are not available, it appears that it is the controversial nature of cases rather than the complexity of the subject matter that results in such appointments. It is therefore important to question the discretion the central and state governments enjoy in the appointment of SPP. The CrPC is silent on the reasons or circumstances that can guide the appointing authority in such cases. The courts are divided in their opinion with regard to whether or not the exercise of the power of appointment of SPP should be supported by reasons recorded in writing. InMadho Singh v. State of Rajasthan, Rajasthan High Court held that such appointments should be justified by ‘public interest’. However, the upholding of public interest is too abstract an idea. The way the provision is used unsparingly, and in cases which draw public attention, renders the motivations of the government very suspect.
Making the exercise of executive power less arbitrary
In 2005, the Code was amended to encourage the states to establish an independent Directorate of Prosecution. While many states have established a Directorate since, the independence the office enjoys in appointments across all cadres is still far from optimum.
As the criminal justice system depends heavily on the prosecutors, necessary checks should be put in place to prevent arbitrary appointments. Before appointing SPP, the government should be convinced that the case in question requires an experienced lawyer and that the regular public prosecutor is incapable of discharging her responsibilities effectively. The reasons for appointing and termination a particular SPP should also be recorded in writing. However, given that criminal procedure falls under the concurrent jurisdiction of the Centre and States any nation-wide reform is unlikely to succeed. Giving more autonomy to the Directorate of Prosecution in appointments and the measures suggested above could temper the discretion vested with the state governments with regard to such appointments. It will increase transparency in the appointment process and increase trust in the criminal justice system.
(The writers are Research Fellows at the Justice Access and Lowering Delays Initiative at Vidhi Centre for Legal Policy. Views expressed are personal.)