By Palak Jain
The criminal justice system places the right to a fair trial at the highest pedestal. To secure this right to both the victim and the accused, there is state and non-state machinery that plays a significant role. This includes the police that conducts the investigation, the legislators that enact the law and the judiciary that implements this law. However, one of the most important roles in the criminal adjudication system is played by the prosecutors.
Considering this important role played by the public prosecutors, it becomes essential that the duties entrusted upon the prosecutors are acted upon by them with diligence, fairness and truthfulness. It is equally essential for the government bodies to ensure that the prosecutors are effectively encouraged to fulfill their duties. Thus, the governments come up with different ways of regulation and reward systems.
The government of Madhya Pradesh has come up with one such, rather controversial, rewarding system for the public prosecutors. It has been reported that the objective of this rewarding system is to motivate the prosecutors and ‘ensure quick convictions’. The reward system functions through a mobile application that rewards points to the prosecutors depending upon the type of sentence secured by them in a case. This article analyzes this rewarding and evaluation policy of the MP government and aims to suggest possible amendments in the same.
M.P. Prosecution – Mobile Application
The Madhya Pradesh government launched a mobile application named ‘M.P. Prosecution’ on October 13th, 2017. The mobile application identifies itself as a ‘Public Prosecutor Performance Evaluation System’. The prosecutors are expected to submit the works (court related or administrative, as the case may be) undertaken by them on a daily basis through this application “so as to enable transparent, rule-based and scientific calculation of the performance score of the prosecutor”.[1]
One of the most prominent features of this app is the points awarded for the kind of punishment secured in a trial. For instance, 1000 points for securing a death sentence, 500 for a life imprisonment, 200 for any other lesser punishment. These scores are submitted in the annual general report and the highest scorer is felicitated by the government. Accordingly, the prosecutors securing 2000 points or above identified with titles such as ‘ Pride of Prosecution’, ‘Best Prosecutor’ etc.
It is claimed that the ‘benefits’ of this application became soon visible too. In the year 2018, the rate of awarding capital punishment by the lower court increased drastically to 22 sentences, as against the previous year, which had only 6 death sentences. It may be noted that although there may be other factors responsible for the increased rate of conviction, such as the recent amendments in the criminal law which have influenced the increasing death sentences in Madhya Pradesh, however, the possibility of the impact of this policy cannot be ignored.
What the Law Says
In order to assess this rewarding & evaluation policy, it is pertinent to first examine the law’s standpoint regarding the role of public prosecutors. In the landmark case of Shiv Kumar v. Hukam Chand & Ors,[2] the Hon’ble Supreme Court noted as follows:
“The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused.”[3]
For this very reason, the legislation had given ‘a scope of withdrawal to the public prosecutors, under the Criminal Procedures Code’.[4] The public prosecutors have been looked by the Justice System as a minister of justice, not only in the Indian context, but the same has also been mandated by the international organizations. The United Nations Guidelines on Role of Public Prosecutors[5] lays down the role of prosecutors to help the court, as an executive, to conduct the trial fairly, impartially and ensuring that all the human rights are upheld.
Thus, it is an established position of law, that the traditional right of nulle prosequi is available to the prosecutors and their ultimate objective is to act as an officer of Court and help in securing justice, and not to secure conviction at all costs.
Analysis of the Prosecutor Performance Evaluation & Monitoring System of Madhya Pradesh
One of the primary fallacies of the approach adopted by the MP Government lies in the compromise on quality over quantity. It is submitted that a sentence-based-reward policy is likely to encourage the public prosecutors to fabricate their submissions or hide pertinent facts that may lead to acquittal or the worst of all – lack of will to secure the ends of justice.
In a response to this much controversial criticism, it is claimed by the Directorate, that this monitoring and evaluation system is not restricted to conviction rate only, though it plays a significant role. Other factors such as recommendation by DG/ADJ etc., PhD and other additional degrees secured, books published if any etc. are also taken into consideration.
A recent report published by the Madhya Pradesh government acknowledges that securing convictions cannot be the sole yardstick to measure the quality of public prosecutors in the state.[6] It takes into account the Auditor General of South Wale’s Report on Efficiency of the Office & Director of Public Prosecutor (2000)[7] which lays down four broad criteria for assessment, namely-quality, quantity, timeliness and cost. It further acknowledges that there is high pressure upon the prosecution to dispose off cases, which in the year 2017 was as high as 77%.[8]
What is interesting to note in this report published by the Madhya Pradesh government is, that in the conclusion, in the first prong, it claims of achieving high levels of independence of prosecution, with almost no interference from government. In the second prong, it acknowledges the pressure of disposing off the huge backlog of the cases. Finally, in the third prong, it clarifies that the State has ensured fulfilment of both quality and quantity with respect to standard parameters.
However, it is submitted that this justification is flawed in the sense that firstly, given the already existing backlog of cases, an additional mandate to secure certain number of points may result in a compromise with the quality of litigation. Secondly, although several initiatives have been taken to improve the quality of prosecution, including highly competitive examination to qualify for the post, introduction of foundational training courses on several laws, launching of E-Journal etc. However, none of these parameters are indicative of the assessment criteria ‘in court’. Finally, the yardstick for evaluating the work done by the prosecutors remains the number of convictions secured in the courtroom.
Therefore, this policy fails to consider the fundamental principle that a prosecutor is expected to uphold. Moreover, such an approach frustrates the legislative objectives and the past judicial precedents that have pronounced the job of a public prosecutor as agent of justice,[9] also referred as minister of justice[10] and impartial.[11]
Conclusion
The public prosecutors vary depending upon their application of law, zeal, skill of rhetoric and professionalism. It is certainly possible that some prosecutors may not perform their tasks appropriately and it becomes necessary to encourage them. However, the criteria of measurement in such reward systems must not be restricted to convictions but to other factors such as impartial appreciation of evidences, research, investigation, zeal etc.
Instead of assigning straight-jacket case-to-case evaluation system, the ideal manner of assessment would be to consider the aggregate performance across the cases – irrespective of the conviction. This will lead to a more fair and impartial trial, wherein the evidences, witness and other testimonials are considered with a touchstone that is free from malice, eagerness to convict and is adjudged fairly and impartially, thereby securing the accused his rights in true sense.
In the case of State of Gujarat v. Kishanbhai,[12] the Hon’ble Supreme Court mandated strict accountability of the prosecution in each case. Further, it ordered the Ministry of Home Affairs to inquire for the reasons of failure in each case. This means that although the prosecution has no ‘duty’ to secure convictions, but it cannot set free every time on the grounds of ‘lack of evidence’ and ‘improper investigation’.
In the light of increasing number of offences of heinous nature, it is indeed essential that the prosecution is accountable for the duties that are expected to be performed. However, at the same time, the quality of public prosecution is an equally important consideration. In order to secure that, it is essential to develop a sound accountability system. The problem with present accountability-cum-reward system is, that it compromises with factors like the genuineness of the evidences put on record, and the efforts put by the prosecutors in cases where the accused was really innocent and the Court held the same. It reduces the idea of trial to a rat-race of securing higher and higher conviction. Suggesting a well-thought alternative evaluation system is beyond the scope of this article. However, it is suggested that additional factors should be taken into consideration to ensure that Justice hurried is not Justice buried.
[The Author is a 3rd Year law student at Institute of Law, Nirma University (ILNU) Ahmedabad.]
[1]MP Prosecution, National Informatics Centre, Bhopal https://play.google.com/store/apps/details?id=in.nic.bhopal.prosecutor&hl=en_IN (last visited on June 25th, 2019).
[2](1999) 7 SCC 467
[3]Id.
[4]Sec. 321 The Code of Criminal Procedures, 1973 No. 2 of 1974 (India).
[5]United Nations Guidelines on Role of Public Prosecutors https://www.ohchr.org/EN/Professionalinterest/Pages/RoleOfProsecutors.aspx.
[6]Indrani Barpujari, A Review of the Public Prosecution System in Madhya Pradesh, Atal Bihari Vajpayee Institute of Good Governance & Policy Analysis, (2019) http://www.aiggpa.mp.gov.in/images/files/pdf/reports/Final%20Report-Public%20prosecution%20.pdf (last visited on June 25th, 2019).
[7]Auditor General (Australia), , Efficiency of the Office of the Director of Public Prosecutions, Sydney: The Audit Office of New South Wales 2000. https://www.audit.nsw.gov.au/sites/default/files/downloads/2011_Nov_Report_Volume_Seven_2011_focusing_on_Law_Order_and_Emergency_Services.pdf.
[8]Id.
[9]Zahira Habibullah v. State of Gujarat (2004) SCC 158.
[10]Jitendra Kumar @ Ajju v. State (NCT Delhi) (1999) 7 SCC 467.
[11]Shamsher Singh v. State of Punjab (1974) 2 SCC 831.
[12](2014) 5 SCC 108.
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