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The office of the prosecutor is the link between the victim of a criminal act and the court. It is the prosecutor who appears for the state to prosecute the accused in criminal trials. The accused, if financially able, can hire the best available defense lawyer. However, no such choices exist under ordinary circumstances for the victim.
The job of the prosecutor is to study the case file and conduct the prosecution so that the accused, if guilty, is punished. The minimum acceptable commitment for a prosecutor under these circumstances is to prepare for the case. However, this is exactly what most prosecutors are not interested in doing in India. For many, the actual prosecution of cases is their last priority.
So why is there such a huge demand and competition concerning prosecutorial appointments? The reasons are simple, but alarming. The prosecutor works very closely with the police. The prosecutor's badge gives free access to the police station. A close nexus with the police helps the prosecutors to literally "chase" the victims of motor vehicle accidents and represent them in court. In these cases the amount charged in fees can be as high as 50 percent of the compensation award.
Accident claims are not the only source of "additional" income for prosecutors. They collect even more bribes for favorable treatment while bail applications are being considered in criminal cases. The rates vary according to the seriousness of the alleged crime and the "importance" of the accused. Similar possibilities exist during trials. In a recent case involving a former chief minister in the state of Tamilnadu, it is alleged that the prosecutor collected at least 1 million rupees (over US$24,000) in bribes to ensure the favorable treatment of the accused during the trial.
Possibilities of demanding bribes are not only limited to the trial. Prosecutors reveal the details of the witnesses to the accused. They also force the witnesses to make contradictory statements in court to the benefit of the accused, after accepting bribes. "Services" rendered as a result of bribery may also include framing a person with false charges. Currently, anyone can easily be charged with a false case and punished for a crime they have not committed.
A weak prosecutor can literally kill the prosecution's case. It is often stated in India that strict laws regarding the burden of proof in criminal trials explain why criminals are frequently acquitted. However, concerns regarding the competence of prosecutors are rarely aired.
The successful prosecution of a case depends upon several factors. The investigation, prosecution and the judge are the most important factors that decide the fate of a prosecution case. The prosecution of several high-profile cases in the recent past has raised serious questions about the direction in which the criminal justice system is headed in India. There is little doubt among the country's legal professionals that the prospects are not good for the criminal justice system.
The condition of the prosecutor's offices in any local court speak volumes about how much the government is interested in this aspect of the justice dispensation mechanism. Most prosecutors do not even have a telephone line in their offices. Forget about fax machines and the Internet. The prosecutor's office however depends on communication with various police stations in order to effectively perform its work. Throughout the country's justice dispensation system, under-funding is chronic, notably concerning courts, and leads to serious problems.
The prosecutor's office in India has been reduced to that of a brokering house, where deals between criminals and the police are struck. In several places it is a dreaded place for the ordinary person, much as are police stations. Attempts to reform the criminal justice system in India must start by addressing these basic issues.
The lawyer who was successful in "bidding" for the post of district government pleader and public prosecutor in Kerala still continues in his post. He charges a minimum of 2,000 rupees (US$50) as a bribe for every bail application. In recent days an accused man charged into his room after being released on bail and assaulted him for delaying his release in spite of having been paid. The prosecutor did not complain, even though he was assaulted in his room in front of his subordinate officers. However, he has threatened to increase his "rates" since the job involves more risks these days.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
