As the 2021 Assembly elections inch closer, a concerning trend is emerging across several political parties — the unabashed withdrawal of criminal cases for political support. On 24 February, the CPM-led Kerala government decided to withdraw criminal cases, except those of serious nature, concerning Sabarimala and anti-CAA protests. Earlier, on 20 February, the West Bengal government announced that it has commenced the process of withdrawing 70 cases concerning the Gorkhaland movement and related agitations between 2007 and 2017.
Keeping up with this trend, the opposition parties are also trying to leverage the weakness in our criminal justice system for votes. In December 2020, Akhilesh Yadav promised to withdraw cases against anti-CAA protestors if his party comes to power in the 2022 Uttar Pradesh elections. Similarly, in October 2020, to generate support across party lines, BJP leader Dilip Ghosh promised to withdraw all false cases against political activists if his party is voted to power in West Bengal.
On the other hand, in recent months, Uttar Pradesh and Karnataka state governments have initiated measures to withdraw cases related to riots and communal violence against political leaders including BJP MPs and MLAs.
These promises and decisions are often cheered by the supporters as a decisive action against the injustices and politically motivated arrests under earlier governments. However, support for these actions often overlooks their impact on the credibility and independence of the criminal justice system, especially on the office of public prosecutors. The electoral promises and politically motivated decisions to both initiate and withdraw criminal cases undermine due process and weaken the role of Public Prosecutors in the criminal justice system.
Legal provision for withdrawal of a case
The Code of Criminal Procedure (CrPC), 1973 empowers the Public Prosecutor in charge of a case to withdraw the case, with the consent of the court. In State of Bihar versus Ram Naresh Pandey (1957) the Supreme Court held that while granting consent to withdraw a case, the Court should satisfy itself that the executive function of the Public Prosecutor is properly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
Analysing this provision in Sheonandan Paswan versus State of Bihar (1986), the constitutional bench of the Supreme Court held that the application to withdraw cases should be made in good faith and “not to thwart or stifle the process of law”. Further, in State of Punjab versus Union of India (1986), the Supreme Court found that the administration of justice is the touchstone on which the question of withdrawal of cases should be determined. Therefore, the material or paucity of evidence, socio-economic condition of the accused and other such reasons can be the ground on which the prosecution can be withdrawn.
Considering the wide ambit of this power, the Supreme Court, on multiple occasions, has cautioned against the withdrawal of cases for illegitimate reasons such as political favours or party pressure. In SK Shukla versus State of Uttar Pradesh (2005), the Supreme Court ruled that the public prosecutor “cannot work like a post box or act on the diktats of the state government”. The court added that the Public Prosecutors should act objectively as they are officers of the court. However, it appears that public prosecutors routinely act at the behest of state governments, thereby making the provision for withdrawal of cases vulnerable to abuse.
Role of the state government in the withdrawal of cases
As the state government exercises the sovereign function of maintaining law and order in the state, they hold the right to issue instructions to the Public Prosecutor for withdrawal of cases in ‘public interest’. In principle, such instructions are only recommendatory and not binding on the Public Prosecutor. The Public Prosecutor is expected to apply their mind to the facts independently and decide on the issue.
However, as things currently stand, it is difficult to ensure independent decision-making by the Public Prosecutor, without being influenced by the will of the state government. The direct administrative control of the state government over appointment and removal of Public Prosecutors makes it nearly impossible for them to dissent against the state government’s instructions. This in effect inflates the role of state government as the primary decision maker for the withdrawal of cases.
To address this concern, an amendment to the CrPC was introduced in 2005 suggesting the constitution of an independent Directorate of Prosecutors by states. Further, the Law Commission of India’s report on the appointment of Public Prosecutors (2006) recommended adequate tenure for the Public Prosecutors and safeguards to prevent arbitrary appointments. However, even after these recommendations, the Public Prosecutors continue to be subordinate to the executive in several states.
Building an independent criminal justice system
Though the power to withdraw cases in the public interest is important for the justice system, it should not be entirely at the discretion of the political party in power. While the state governments may guide public prosecutors towards the public interest, public prosecutors should be equipped to withdraw cases wherever necessary. They should be empowered and trained to adequately check against the misuse of the criminal justice system by the state government.
Further, any communication from the state government to the public prosecutors concerning the withdrawal of cases should be reasoned. It should elaborate on how the withdrawal of cases will promote the administration of justice and should be published. Such measures will help insulate public prosecutors from external influence and increase public scrutiny on withdrawal of cases.
from Firstpost India Latest News https://ift.tt/2P8tbEc
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