Introduction – Prosecution in India
The State is considered as the custodian of social, and public interest. Any crime committed is treated as a threat to society, hence, this commission is not just against the victim, but also, against the State. In this regard, in order to provide a fair trial, and to prevent the misappropriation of judicial remedies for taking vengeance, the duty to represent the society is vested in a public prosecutor. However, this creates a hiatus between the anticipations of a victim from a public prosecutor, owing to the lack of involvement of the victim in the judicial process. To overcome this, many countries have allowed the victims to engage with private counsels to assist the court. The article, through various case laws, aims to analyze the position of victim advocacy in India, and the issues that are born due to the current situation. Further, the article also aims to analyze whether allowing for private prosecution in India, in these situations, is an efficient solution considering India’s present milieu in the criminal justice system.
Problems with the Current System
The Indian criminal justice system mainly relies upon the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 for justice delivery. It largely follows an adversarial form of a legal system; however, certain aspects of the inquisitorial system can also be found in this system.
Sections 225, 301, and 302 of the CrPC provide for the concepts of a free and fair trial, in accordance with the right to life, as enshrined under Art. 21 of the Indian Constitution. Sec. 301(2) of the CrPC. reads “any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case”
The Indian Judiciary, through its rulings, has shed more light on the jurisprudence of Section 301(2) of the CrPC. In Kuldeep Singh v. State of Haryana, the Court, while allowing a private party to intervene only through written argument, limited this participation only to briefing the public prosecutor. Later, the SC in Dhariwal Industries Ltd. v. Kishore Wadhwani noted that the Court, in such cases, has the discretion to grant permission to allow private prosecutor, provided it has reasons to believe, that such a request would best serve the interest of justice Furthermore, in Amir Hamza Shaikh v. State of Maharashtra, the Hon’ble Supreme Court also highlighted the victim’s right to aid the court by inquiring into cases, based on Magistrate’s discretion if he feels that “the victim is in a position to assist the Court and the trial does not involve such complexities which cannot be handled by the victim
The Indian judiciary has, time and again, defined the role of prosecution as an agent of the Court. In Anil Kumar Tiwary v. State of Jharkhand, the Court stated that a public prosecutor cannot be biased towards one party, and further, emphasized upon the job of a public prosecutor, like that of an “agent of the court,” should be towards justice, and also, not to be detrimental to the accused, as, in the turn of events, it would only cause injustice to the victim. Further, the Courts have observed that there is a dire need for a system that allows victim, who is reduced to the status of a prosecution witness, to be connected with their case along with giving enough autonomy to the prosecutor. However, the criminal justice system experiences difficulty in meeting the expectations of a victim from the public prosecutor. Problems, such as excessive workload, the inefficiency of prosecutors for various reasons, have led to the current situation.
Further, the process of appointment of public prosecutors is, at times, based more upon a person’s connections, rather than merits. This further adds to the already existing problem of the expectation gap. Solutions to this, such as the introduction of an examination for the post, are being debated over; however, there has not been any conclusive change or improvement.
What the system lacks, is a developed accountability system The CrPC makes assistant public prosecutors accountable to the district magistrate at the district level, and the director of prosecutions at the state level. This provision renders little accountability for public prosecutors. Further, district magistrates often fail in their duties to check the working of prosecutors, due to the large number of pending cases The Supreme Court in the case of State of Gujarat v. Kishanbhai & Ors, ordered the Home Department of every state to set up a mechanism for investigation of erred prosecution officers in criminal cases. However, the States have been facing issues in implementing this order
Moreover, the gap is also widened because the small number of prosecutors are overburdened by the constantly increasing workload. The situation is such because of lack of incentives such as proper pay, infrastructure, etc., offered to prosecutors The current situation discourages advocates to engage themselves in prosecution work. In the various High Courts, public prosecutors are engaged on a part-time basis and are allowed to continue private work. However, this private practice consumes most of their efforts, which leads to inefficiency in their role as public prosecutors. Therefore, inefficient prosecution against private defence broadens the expectation gap.
Is Private Prosecution a Way Forward?
The mere recognition of the fact that a victim plays a vital role in the whole criminal judicial process is not sufficient to improve the situation. It is essential that victims are provided with adequate representation and participation that is due to them. Andrew Sanders in Criminal Justice argues that “there is a need to enhance the freedom of the victims and that can be done if their concerns are taken seriously The same has also been highlighted in numerous reports and adopted by different jurisdictions across the globe. The Royal Commission on Criminal Justice Representation, headed by Viscount Runciman, in 1993 reflected on the importance of proper communication between the Crown Prosecution Services (CPS) and the victims, as the views held by victims must also be taken into consideration during decision making in their cases.
One of the plausible solutions to this problem of lack of participation of victims can be solved by the way of incorporating private prosecutors in the criminal justice system. This is because of the numerous advantages that private prosecution provides. The greatest of these is far more involvement of the victim in the trial when compared to the current system. This can work in a positive way towards bridging this expectation gap of the victims. Private prosecution is not constrained by financial or budgetary reasons, which the public prosecution is bound by. Further, this system also enables the victims to engage with highly experienced legal practitioners to support their cause, and hence, bring forth the strongest possible position. However, the general opinion that is attached to this type of participation is not a favorable one. There exists a strong possibility that such private prosecutors engage in the practice of wrongful and frivolous convictions.
Nonetheless, as Roger A. Fairfax suggested in “Delegation of the Criminal Prosecution Function to Private Actors,” this can be solved by ensuring a proper mechanism to keep a check upon private prosecutors. He suggested the implementation of a system, such as, public reporting, which would keep an eye upon the cases handled by all private prosecutors, and further, it would notice if these prosecutors are applying the necessary discretion required for the case. Implementation of such a system of private prosecution in India would help solve several issues, such as corruption, delay in justice, and lack of accountability, that the Indian criminal justice system today faces. Presently, due to the lack of an accountability system, victims are usually at the mercy of public prosecutors, who are not answerable for their acts. And hence, there exists no mechanism for victims to address their concerns with regards to the performance of a public prosecutor.
According to the victim orientation theory, “there should be more involvement of the victim in the investigative and prosecution stage along with a right to choose his own lawyer.” However, as per the Indian Criminal Justice system, it is believed that the mere apprehension of lack of proper services from a public prosecutor is not a good enough reason for engaging with a private prosecutor. However, this issue is not at the stage of ‘mere apprehension.’ The current situation of the public prosecution system is a fact which in turn highlights that there is a compelling need for reforms, in the interest of justice. In order to obtain this, a stronger, and better-equipped prosecution system is essential, which can be fulfilled by allowing for private prosecution to work alongside public prosecution. On the other hand, there is also a high risk of a plausible monopoly that the private prosecutors may establish, considering the increasingly high number of lawyers getting registered in the Bar Council. Further, taking into account that the difficulties faced by the State in keeping a check on the work of public prosecutors, it would be highly ill-judged to hope that a proper mechanism to check the working of private prosecutors would be in place. This solution of private prosecution in India would only be effective in bridging the gap between the expectations if there is an effective accountability system that regularly analyses the work of private prosecutors and makes sure they comply with general practice regulations in order to prevent a monopolistic system.
As it was rightly pointed out by Apex Court, “It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of the law. The victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature
Predominantly, most countries, like the USA, England, and Whales have allowed some participation of victims in the criminal justice process. Such changes have been made with an aim to meet the expectation of a victim from prosecution. And India can take a leaf out of their books in order to bridge this gap.
The Malimath Committee in 2003 also suggested that India should implement the right of a victim to be represented by a lawyer of their choice, and the State should bear the cost of a lawyer for financially weaker victims In addition to this, there is a need for an accountability system, such as, a review board, which checks the approach taken by the prosecution, and improves the prosecution’s functioning. Further, as the committee also recommended, victims must be considered ‘party’ to a trial. It is often argued that extreme participation of a victim would create chaos and hinder the working of the prosecutor. However, finding a middle ground, between the two poles of complete participation and no participation, is fundamental. India needs to focus on solving the issues faced by the prosecution which create a gap between victim expectation and prosecution’s working and allow for private prosecution alongside public prosecution, provided, there is a solid accountability system in place to prevent monopoly, and misuse of the criminal justice system to seek revenge.
 Sairam Sanath Kumar and V Krishna Ananth, ‘The Prosecutorial System in our Criminal Justice Administration – A Closer Look’ (2008) 2 NUALS LJ 14.
About the Authors, Ujjwal [2019-24] & Palkriti [2020-25] are pursuing Law (UG) from Jindal Global Law School, Jindal Global University.