ON Sept 27, the chief minister of Tamil Nadu, J. Jayalalithaa, was convicted by the special court judge John Michael Cunha to four years’ imprisonment and a fine of Rs100 crores. The charge was possession of assets disproportionate to her known sources of income.

The case was launched in 1996 and the court sat in Bangalore, the capital of Karnataka, not in Chennai, the capital of Tamil Nadu. The Supreme Court ordered the case transferred to Bangalore in 2003, because it apprehended that a fair trial did not seem possible in the state.

For similar reasons, it also transferred the Gujarat pogrom cases and some cases involving charges against BJP president Amit Shah from Gujarat to Maharashtra.

The fairness of a criminal trial depends not only on the judge’s integrity but also on that of the prosecutor. A corrupt judge aborts the course of justice; a corrupt prosecutor ensures it does not commence. In 1960, a committee of inquiry into the state of the rule of law in Kerala recommended the establishment of the office of director of prosecutions.

It said, “all prosecutions should be under the control of a director of public prosecutions [DPP] whose independence from the government should be assured by statute, so that justice is always done as between man and man, and not left to the capricious arbitrary or mala fide orders of the ministry in power. The [DPP] must … have the same status, salary and security of tenure as of a high court judge”.

That cannot be ensured by a statute, but only by a constitutional provision. The committee was appointed by the Indian section of the International Commission of Jurists at Geneva.

Rulers should not interfere with public prosecutions.

The last half a century and more have proved the need for an independent DPP, established by the constitution with iron-clad guarantees for his independence. Under the Code of Criminal Procedure, the public prosecutor is appointed by the state government.

In 1997 the Supreme Court had an excellent opportunity of setting matters right but failed to do so. It was in the ‘hawala’ case. Names of important politicians figured in a diary maintained by a businessman. The list indicated the amount of money he had paid to each against his name. Not many of the top guns escaped his munificence. Obviously, pressures on the prosecutor in the case would be enormous. Matters reached the Supreme Court on a petition filed by journalist in the public interest.

The Supreme Court observed: “The learned amicus curiae had urged us to issue directions for the appointment of an authority akin to the special or independent counsel in the [US] for the prosecution of those sensitive cases and to ensure that appointments to sensitive posts in the CBI and other enforcement agencies and transfers therefrom were not made by the political executive. We are of the view that the time for these drastic steps has not come. It is our hope that it never will, for we entertain the belief that the investigative agencies shall function far better now.”

There was nothing even remotely ‘drastic’ about it. In all democracies governed by the rule of law the prosecution machinery functions independently of the politicians in power. Any other system would be violative of the rule of law, and fundamental rights to personal liberty and equality before the law.

The US enacted the Ethics in Government Act, 1978 to empower the courts to appoint an independent prosecutor. An independent counsel was appointed in the Iran-Contra case as also in the Monica Lewinsky case in which the prosecutor Kenneth Starr questioned then president Bill Clinton.

Starr’s excesses and some constitutional tangles led to the demise of the statute

which empowered the courts to appoint an independent counsel. But the basic principle of the independence of the public prosecutor is firmly established. Prosecutors act independently.

In Britain, the Prosecution & Offences Act, 1985 set up an independent Crown Prosecution Service with a DPP at the head. The CPS reviews police decisions to prosecute and conducts prosecutions itself. It also institutes proceedings in difficult or important cases, and advised the police on matters relating to criminal offences. The attorney general and, through him, the DPP are accountable to parliament for what they do in relation to criminal proceedings.

The act provides an effective safeguard against the danger of any “improper inaction” in prosecution for crime.

The CPS is divided into 42 prosecution areas each headed by a chief crown prosecutor. It is a useful model for federal countries to follow: the office of a national DPP established by a constitutional amendment with its own prosecutors at the state and district levels. It would eminently complement the office of the ombudsman. The present system is unconstitutional.

The writer is an author and a lawyer.

Published in Dawn, October 11th , 2014