Broken-down prosecutors, thrown-out victims

Bijo Francis, Advocate, Kerala, India

The acquittal of the accused in the ‘Best Bakery case’ arising out of the Gujarat massacre epitomises the decline of the Indian judicial system.  Recently while discussing this system with a scholar I found that despite its flaws and failures he was still genuinely optimistic about it. Yes, technically speaking it is indeed a marvel. However at the end of the day if it is unable to deliver justice, then it is necessary to subject it to more rigorous scrutiny.

In India, police criminal investigations often end up miserable farces. This is because police authority is subject to massive nepotism, corruption and ignorance. When the investigators rely on the state to conduct their enquiries into a criminal act and where the state itself has been instrumental in the criminal act then the result is obvious.

But where the prosecutor’s office might act to mitigate the worst possible outcomes, in fact it serves to guarantee them. The prosecutor’s office, though in spirit part of the judiciary, is technically a state organ. The appointment of prosecutors is the first priority of a state government when it assumes office. But the political godfathers who appoint these “professionals” to office do not want the best brains serving the state; they instead find whoever is expedient and malleable. They also pay them badly and do not give adequate funds with which to do the work. A wealthy accused comes to court with expensive defense lawyers; the best in the profession meet mere government nominees neither worthy of the office nor the profession. The end result is that the victim is thrown out of court and the perpetrator walks free.

Over time, the prosecutor’s office has lost all credibility. It often works in a mechanical fashion under self-imposed restrictions. For instance, if the charge and evidence from an investigation coming before a prosecutor is deficient, the prosecutor may instruct the police to reinvestigate. When the initial charge is placed before the prosecutor prior to trial; the prosecutor is vested with the authority to approve it, otherwise it cannot go for trial. A prudent prosecutor can foresee difficulties and guide police to fill the gaps in their work. However, prosecutors in India typically work mechanically and unthinkingly. As a result, both the prosecutor and police cut poor figures in court. In criminal trials the sight of an investigating officer staring blankly at cross-examining defense counsel, unable to give any credible answer to contradictions and omissions in the evidence, is common.

It is also common for witnesses to turn hostile to the prosecution case at time of trial. This is what happened in the Best Bakery case. The reasons why witnesses turn hostile may vary and are often not examined. Some witnesses change their position due to out-of-court settlements. On other occasions, problems may arise because the investigating agency produced a false case or recorded statements in a careless manner.

In the Best Bakery case the witness turned hostile because of threats to her life. To threaten a witness is an offence and if a witness complains of being threatened by the accused or someone outside the trial acting in favour of the accused, the bail bond for the accused may be cancelled. It is also a duty of the state to protect the witness. However, in this case the state neither protected the interests of the victims nor sincerely sought to render justice. What else can be expected when the violence in Gujarat was itself state-sponsored? What else can be expected when the prosecution is employed by the state? This situation makes a mockery of the system and delivery of justice.

Happily, the Supreme Court has recently risen to the occasion and attacked the state and its functionaries over its handling of the Best Bakery case. While in this instance gratitude is owed to the Supreme Court, its role in such cases needs to be seen pragmatically. In a country of some one billion people, can a single court be expected to intervene in every case of miscarriage of justice due to state involvement in the crime?

Clearly, the prosecution’s office is in need of overhaul. To begin, prosecutors should be appointed on grounds of merit, not political allegiances and ineptitude. Entry level screening by way of rigorous written examinations and interviews would ensure that only those with a minimum level of professional competence would be considered for the office. The selection process should be transparent and under the supervision of the respective high courts of the state. A competent and independent authority should assess the office and its work periodically. The duration of the office should also be fixed, perhaps at seven years, rather than be subject to the whims of the ministry. Prosecutor’s salaries must be competitive, and legal provisions made to ensure that the prosecutor’s office is well funded and at least on a par with any of the top legal firms. If these conditions were met, and with a strong prosecutor performing the duties of the office according to its mandate, the investigators would have no choice but to begin improving the standard of their work.

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