Rash of prosecutions

Published September 11, 2021
The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

FOR well over a few years, India has been ravaged by a plague of criminal prosecutions for sedition and cognate offences. Sedition has been abolished in the country of its origin, the United Kingdom.

Its nuances cannot be understood by magistrates, sessions judge, police officers or the cleric who heads Uttar Pradesh, Swami Adityanath, the chief minister handpicked by Prime Minister Narendra Modi.

One of the great constitutional lawyers A.V. Dicey wrote: “With us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority.”

Could this have been achieved if the police were subservient to the man in power? Justice Jeevan Lal Kapur of the Lahore High Court came to India on partition and rose to be a judge of the supreme court of India.

In this capacity he was appointed to preside over a commission of inquiry into the assassination of M.K. Gandhi. He ruled emphatically that no minister of government can order the police to arrest or release a suspect. That would be the end of the rule of law.

Our right to speak, write, move and meet should not depend on ministers’ whims.

This is the test. Our right to speak, write, move and meet should not depend on the whim of some minister acting through a minion.

The law was authoritatively declared by the celebrated Lord Denning in these words: “I hold it to be the duty of the commissioner of police of the metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself.

“No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems that once a duty exists, there should be a way of ensuring its enforcement.

This duty can be enforced, either by action at the suit of the attorney general or by the prerogative writ of mandamus. But it is a very wide remedy which has always been available against public officers to see that they do their public duty.

Could what Dicey described have been possible of the police acted as tools of the government? But it is this law which guarantees equality before the law. Not the police but the judges are the guarantors. The worst to suffer are minorities.

The prosecution system was reformed by the Prosecution of Offences Act, 1985. Until 1986, in England and Wales, most criminal offences were both investigated and brought by the police; in theory they were private prosecutions.

The 1985 act does not take away the right of private prosecution, nor does it deprive the police of their investigatory role or their power to decide whether or not to initiate proceedings. It entrusts the final decision of whether or not to prosecute and the conduct of prosecutions be­­gun at the instance of the police, to a na­­­­tional Crown Prose­cution Service and gives to that service the power to discontinue proceedings. Thus indirectly, there is a control over the police discretion to prosecute in individual cases.

The Director of Public Prosecutions is the head of the Crown Prosecution Service. The office of Director of Public Prosecutions was established in 1879. He is appointed by and acts under the general “superintendence” of the attorney general.

He is under a duty to take over the conduct of all criminal proceedings (other than those excluded from the section by the attorney general) which have been instituted by a police force; to institute and conduct proceedings where the importance or the difficulty of a case makes it appropriate that he should do so, or where it is otherwise appropriate; to appear for the prosecution when directed by the court to do so in certain categories of criminal appeals.

He may give advice to police forces on all matters relating to criminal offences and must discharge such other functions as may be resigned to him by the attorney general.

Thus, the politician in power has no control over prosecutions.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, September 11th, 2021


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