The Prosecutor

A G Noorani
THE prosecutor has been under a cloud for a long time; of late that cloud over his office has darkened. On April 20, Maya Kodnani, a minister in Narendra Modi’s Gujarat government, was acquitted in the Naroda Patiya case in the 2002 pogrom of Muslims. Kodnani became a minister after the riots. In 2012, she was convicted by a trial court as the ‘kingpin’ of the riots and given a 28-year prison term. The high court acquitted her on appeal. Arjun Modhwadia, a Congress leader, accused the prosecution of lapses, saying, “Prosecution lawyers drafted the affidavits of some of the accused”.

Her acquittal has been received with disbelief. She was seen by some at the scene, exhorting the mobs to kill Muslims, distributing swords and assuring the mob that there would be no inquiries by the police. Opinion on the role of the prosecution must be reserved. It is most unfortunate that its role in Gujarat has come under criticism.

Crime eradication depends on the efficiency and integrity of three institutions. The police investigate and collect the evidence. The prosecutor presents it to the court and asks that the guilty be punished. The judge renders justice. All three are creatures of the law. All three have seen better days.

Criminal justice depends on the integrity of three institutions.

On April 17, the Maharashtra government abruptly cancelled the appointment of the special public prosecutor (SPP) Dhiraj Mirajkar, who was appointed in November 2015, in the Khwaja Yunus custodial death case. That he was the third to be sacked in this very case reflects the state government’s disposition. Yunus, a 27-year-old software engineer, was arrested in Mumbai in December 2002 for a bombing in Ghatkopar that killed two. Barely 10 days later, he was said to have ‘disappeared’ while under police escort to Aurangabad. A CID probe showed that the police had tortured him to death.

Four police officials were finally put on trial, though 14 were named. Two months after, SPP Mirajkar asked that four police officials be made additional accused in this 15-year-old case. He was sacked. Reflecting on the dismissal, Mirajkar said, “[I]t is a direct fallout of the application I made to include four officers as accused … the government is going to make every effort to dodge the charge.” On Jan 17, Dr Abdul Mateen, a prime eyewitness, told the court that he had seen those four other inspectors assault Yunus, who was vomiting blood. The prosecutor was sacked even before the court could decide on his application to include them as accused.

How can one expect a prosecutor to discharge his duties honestly if the state’s sword of Damocles hangs over his head, ensuring that the favourite of the politicians in favour escapes punishment?

In the 1970s, Congress MP Amrit Nahata produced the film Kissa Kursi Ka, a satire on Indira Gandhi and her son Sanjay. In February 1979, Sanjay Gandhi and former information minister V.C. Shukla were convicted of a conspiracy to destroy the film during the emergency and sentenced to two years in jail. The Supreme Court of India began hearing their appeals that November. By January 1980, Indira Gandhi had returned to power. The prosecutor, Ram Jethmalani, who had appeared for months in the trial court, was dropped. His successor, one Joginder Singh Wasu, argued for 15 minutes on a record of 6,500 pages. In April 1980, a three-member bench of the apex court acquitted the accused in a scrappy judgement. The judges were justices S.M. Fazal Ali, P.S. Kailasam and A.D. Koshal. Such judges deserve immortal fame.

The Indian Criminal Procedure Code vests in the governments, central and state, the power to appoint public prosecutors and a special public prosecutor for a special case (Section 24). He is removable at its whim. Judicial pronouncements on his independence are futile. The same is true of his power to withdraw a case with the consent of the court (Section 321). Judges have ruled that he cannot be dictated to by the state. They cannot protect him from dismissal. Only a director of prosecution created by the constitution can.

In the US, the Ethics in Government Act of 1978 empowers the court to appoint an independent prosecutor. Robert S. Mueller III is special prosecutor in the current investigations into charges of Russian meddling in the US presidential election. Even though the independence of the prosecutor existed in Britain prior to 1986, it nonetheless established the Crown Prosecution Service that year under the Prosecution of Offences Act of 1985. In 1924, Sir Patrick Hastings had to resign as attorney-general because he had withdrawn the prosecution of J.C. Campbell, editor of a communist weekly, for political reasons.

Finley Peter Dunne, in his classic Mr Dooley’s Opinions, wrote: “No matter whether th’ Constitution follows th’ flag or not, the Supreme Coort [Court] follows the iliction [election] returns.” The Supreme Court’s conduct in the Kissa Kursi Ka case proved the wisdom.

The writer is an author and a lawyer based in Mumbai


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