[This Article is authored by Ujjaini Biswas. They are a student at National Academy of Legal Studies and Research]

[The author is the Second Runner Up of the 2nd GCRCJS Criminal Law Essay Writing Competition, 2024]

Introduction

The Criminal Justice System in India has been modified to be accused-centric, with several established precedents and laws in place, to protect the rights of the accused and undertrials. Maximum care is taken to ensure that a person innocent of a crime is not wrongfully punished. The counsels for the defendants have the best interests of their client in mind and, they do their best to ensure that the rights of the defendants are not violated. The Public Prosecutor [“PP”], however, is tasked with representing the State and not the victim per se. They assist the State in the administration of justice by placing all the necessary and relevant aspects of a case. They are expected to be impartial.

This paper firstly deals with proving that the Public Prosecution System in India enforces a accused-centric approach to law while representing the State. As a result of this, the victim takes a backseat, resulting in a tumultuous trial process that goes on for as long as decades. Secondly, the paper argues that the functioning of a PP could be better balanced to ensure that the rights of the victim are upheld while maintaining impartiality. Thirdly, it examines the possibility of implementing in India, the three theoretical models given by J. Fionda – the Operational efficiency model, the Restorative model and the Credibility model. Lastly, in light of the current challenges faced by the criminal justice administration, the paper advocates the need to explore the implementation of a Private Prosecution System in India to run in tandem with PP.

Public Prosecution in India

The role of a PP is very different from that of a private pleader. In Harendra Rai v. State of Bihar, the Supreme Court referred to the 197^th Law Commission Report which states the Prosecutor’s duty to the state, the accused and the Court. The bench emphasised the Prosecutor’s role as the minister of justice, and so, it is not his duty to secure a conviction of the accused. Thus, the needs and expectations of the victim are not really met. Critics may argue that the very process of helping with the administration of justice, by representing the State, would fulfil the victim’s expectations. While this is true, impartiality cannot be equated with meeting client interests. An impartial Prosecutor does not go to the same extent for the victim as a private counsel does for their client. In certain cases, it has even been argued, that the prosecutor’s office appears to be quasi-judicial because of their executive powers (held in RK Jain v. State and Shamsher Singh v. State of Punjab). The State’s institutional practices have a bearing on the autonomous functioning of prosecutors. A report showed the extensive control that the executive has over the appointment of PPs. Although consultation with the judiciary is required, in many cases the same is circumvented. For instance Uttar Pradesh had amended the need to consult with the High Court for the appointment of PPs following which, the Supreme Court in the case of State of UP v. Johri Mal held that primacy should be given to the opinion of the District Judge for the appointments of PPs, to appear reasonable and fair.

Fair Trial: Only for the Accused

The word “victims” appears merely 8 times in the International Guidelines on the Role of Prosecutors, and even then most of the time it is stated along with ‘suspects’ as the prosecutors are directed to ensure the protection of rights of both. Further, the prosecutors are asked to only ‘consider’ the views and concerns of the victims. Problems continue when the Prosecutors are asked to discontinue the trial, if the investigation was not impartially done or, unlawful methods were involved that violate the suspect’s rights. India follows the same through its statutes. Practically, a fair trial therefore means a fair trial for the accused and not the victim, resulting in an expectation gap.

Balancing Victim Expectations and Impartiality

It would be unreasonable to believe that fulfilling victims’ rights and their expectations would not result in an impartial trial. Nobody in the Justice System including the victim desires wrongful punishment of an innocent person. Given the structure of criminal proceedings in India, the only way to ensure victims are given relief is by overhauling the Public Prosecution system in India, to ensure that the role of a victim is not just reduced to that of a Prime Witness. Even across the world the prosecutorial system has been criticised because it is difficult to assess their work as there exists a ‘concept fog’. For example, prosecutors in the United States failed to indict white police officers who had killed unarmed black men but, it was difficult to evaluate the working because they had provided the juries with all relevant evidence. Similarly, in India, when cases of acquittal of the accused are analysed, it is seen that the prosecution could have taken greater care to make sure their witness and evidence are not weak enough to give rise to reasonable doubt. For instance, in Kamal v. State (NCT of Delhi), the Supreme Court expressed that ‘the prosecution has utterly failed’ to prove the incriminating circumstances beyond reasonable doubt. It was a clear case of circumstantial evidence. So, the prosecution should have ensured that no other hypothesis be arisen from the evidence presented. Yet, the investigation and prosecution happened in such a way that the sanctity of the ‘Test Identification Parade’ became doubtful.

A lot of measures are taken to ensure that public confidence in the criminal justice system does not erode. However, public faith would surely erode if a dispassionate and impartial prosecution does not help the victims get the required relief. Therefore, the prosecution needs to increase its efficiency along with being impartial. They should not work with a pre-determined bias to get the accused convicted but also to bring concrete evidence so that the real perpetrator does not get acquitted because of procedural or other forms of irregularities in investigation and trial. Full compliance of the investigation with the criminal statutes and immediate correction of any deviations must be done. However, PPs have been separated from the Police as per the BNSS and Supreme Court orders. The Police have been brought under the administrative control of the Directorate of Public Prosecution, whose main function is to pinpoint the defects in any investigation and conducting of cases before Sessions Court.

The problem lies in the fact that these defects are checked after an accused is acquitted and not before the trial is conducted. Currently no statutory power or discretion is given to a PP to play any role in the investigation process and even though in the case of R. Sarala v. TS Velu, the court held that the police may consult a PP during the investigation, the same is not compulsory. Hence, statutory measures must be taken to ensure that before the trial starts, PPs go through the Final Report of the investigation, or if not, look-over the entire investigation process. This would help achieve victim expectations while also maintaining the impartiality of the Public Prosecution system.

Bridging the Expectation Gap

Prof. Julia Fionda explored the following models while discussing prosecutorial discretion. In this section, the possibility of implementation and the probable consequences are analysed.

1. Operational Efficiency Model

Reports have already pointed out the need to ensure the appropriate mode of appointment of PP. To respond better to the developing forms of criminality, the Public Prosecution system has to be specialised. A politicised appointment would bring down the efficiency hence, only those candidates who have knowledge and expertise in the criminal justice system and are skilled in conducting criminal trials are appointed. Post the selection process, the PPs should be given sufficient resources to prepare for the trial. This serves two objectives – to increase the quality of prosecution which in turn increases public faith in it and, to decrease the costs borne by the victims for private prosecution.

An alarming shortage of PPs across Indian states also warrant for increased appointments to balance the workload with the workforce. The burden on the judiciary would be reduced by resolving long-pending criminal cases, while also meeting victims’ expectations for quicker trials and, by protecting human rights of undertrial prisoners.

2. Credibility Model

The two aims of this model are to maintain public confidence in the criminal justice system, and to deter potential criminals. This model acknowledges that both the victims and the public are stakeholders in the proper enforcement of laws. Hence, what is needed is the setup of an accountability mechanism to prevent the imbalance created by the discretionary power of the PP and consequently lower corruption and inefficiency in the Prosecution system. Further, a performance assessment report of the PPs should be made publicly available to increase transparency and public faith.

Implementing this would take time as recruitment of professionals to assess the performance of PPs is needed. A quicker short-term remedy would be for the think-tanks and other policy centres to get access to the functioning of PPs to assess their performance and make the data publicly available.

3. Restorative Model

This model aims to restore the victim to the ‘same state’ as they were in before the offence happened. Punishment of the perpetrator and, involvement, effective representation of the victim are the needs of the hour. PPs should at all times keep the victims informed about the stage of investigation, trial and, all other information that the victim deserves to know. The role of the victim as stated previously must not be reduced to that of a Prime Prosecution Witness. Victims should be able to voice their grievances about the conduct of the investigation or the trial and these matter need to be taken up urgently by either the Directorate of Enforcement or the Judicial Magistrate, whoever took cognizance of the crime, to ensure speedy resolution of the lapses.

If this model is successfully implemented, it would solve multiple problems that the system is currently marred with. Swift action would reduce delayed trials, improve the overall satisfaction of the victim with the judicial system and balance retributive and restorative justice.

Conclusion

The core-argument of this paper is to introduce effective victim representation in the criminal justice system but, it also acknowledges that a complete overhaul of the current system, which is the need of the hour, would take a long time to come to fruition and thus, the State firstly needs to explore the possibility of a Private Prosecution System which caters solely to the needs of the victims as the current laws merely allow the hiring of a private prosecutor but, they have to work under the PP’s direction. Trials conducted solely by Private Prosecutors are rarely allowed (see Kedar Nath Sen v. Amulya Ratan Sanyal). This would allow them to function independently and would also bridge the expectation gap. Secondly, the theoretical models need to be implemented and lastly, a change in perspective of the authorities in the criminal justice system is necessary, to understand that the victim faces equally, if not more loss when their expectations to get justice are not met, than when the offence occurred. Therefore, The Supreme Court ought to take cognizance of the systemic defects and the legislature ought to frame an Act to reform the Public Prosecution System in India.