Rohit Kapoor, Advocate
Why do human beings aggress against others ? What makes them turn, with savage brutality, on their fellow human beings ? Evidence suggests punishment can reduce aggression, but only if it meets basic requirements including (i), it must be prompt (ii) it must be certain to occur, and (iii) it must be strong. However, these conditions appear to be missing in criminal justice system in our country. Many criminals involved on heinous crimes are able to escape arrest and conviction solely because of deficiencies in investigation and prosecution. Even severe punishment like capital punishment or life imprisonment will not be effective in deterring violent crime in such a scenario. Therefore, the common belief that the severe punishment through speedy trial will successfully deter such behaviour may be optimistic, however, can work in conditions enumerated above.
The Ministry of Home Affairs, in their file bearing No. 12/33/2006-Judicial Cell forwarded to the Law Commission of India on 29.5.2006 a letter of the Prime Minister’s Office ID No. 805/11/C/4/06- Pol dated 16.5.2006, seeking the views of the Law Commission on three matters including institutional mechanism(s) and safeguard(s) in terms of eligibility requirement, assessment of past performance, adequate tenure, etc of Public Prosecutors that could be considered to reduce the scope for arbitrariness in appointments”.
The Supreme Court of India in SB Shahane’s case (1995) has underlined the important role of Public Prosecutors and observed, “PPs/Addl PPs deal with the case of highest importance in the Sessions Courts which try persons accused of murder and other serious offences. It has further been observed, “‘Inefficiency or lack of integrity on the part of the Public Prosecutors not only affects society but may also reflect sadly on the judicial system. Any method of appointment which sacrifices the quality of the prosecution or which enables State Governments to make appointments at their choice without proper screening, proper assessment of the qualifications, experience or integrity of the individuals”.
Guidelines on the role of prosecutors adopted by the Eighth United Nations Congress on the prevention of crime and the treatment of offenders, Havana, Cuba 27 August to September 1990, include status and conditions of service. It was agreed States shall ensure that (a) Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice (b) Prosecutors have appropriate education and training. It has further been adopted :
(i) that States shall ensure that prosecutors are able to perform their professional functions without intimidation, hundrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.
(ii) Prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as result of the discharge of prosecutorial functions.
(iii) Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations.
(iv) Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures.
It may be worthwhile to note service conditions of Public Prosecutors in the State of J&K in the context what has been stated above. A public prosecutor in J&K State gets a retainer-ship of Rs 7000 Approximately. The counsel fee for crminal cases like murder, rape etc is Rs 3000/- for the entire trial which may last for years together, at times for more than a decade. This extremely low fee structure does not attract many lawyers with sound knowledge and experience in criminal law. They are engaged by the accused as they are paid well by them. Recently, Maharashtra Government decided to provide, at its expense, every sexual assault victim a lawyer of her preference.
Justice J S Verma’s Committee constituted for possible amendments in criminal law in its report dated January 23, 2013 submitted to the Prime Minister recommended Public Prosecutors should be appointed on the basis of merit in accordance with recommendations of Chief Justice of High Court and not on the basis of any political considerations. What is significant in this recommendation is the acknowledgement of at least two significant facts (i) all is not well in appointment of Public Prosecutors in the country (i) their qualification, experience and integrity are extremely vital for punishing the offenders.
And nothing has been done by all those entrusted to take a call on this extremely serious lacuna in Criminal Justice System of our country. One direct consequence of which is offenders continue to revel the acme over the rock bottom deficiencies in investigation and prosecution. Law-abiding common man’s life and freedom remain subservient and in such helpless situation even stringent punishment has ceased to be deterrent. And therefore they go on undeterred, abusing and fiddling with the Criminal Justice System with impunity.
“We must accept finite disappointment, but never lose infinite hope. Martin Luther King Jr.”
And so effort for seeking change must continue as the hope is infinite.
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