Prosecution In Delhi Riots Case (Courts Must Call Its Friends To Protect This Prosecution)

The protests broke out rapidly across the country, although the concerns of the protesters varied at different places. There were petitions filed in various High Courts and also in the Supreme Court challenging the constitutional validity of the above CAA ACT enacted by the BJP Led Government, and the same is pending adjudication till date.

The CAA Act right after its enactment had divided the majority of the Indian population into either being a PRO CAA or ANTI CAA , and with increasing protests against the CAA by the ANTI CAA population, there was an increased sense of support being shown by the PRO CAA population. Soon these protests and support for the CAA ACT turned violent and took the shape of riots.

While there are various versions of how the protests really got violent and took the shape of riots, there are some popular versions i.e Sitting ministers of the BJP Led Government instigating the riots with their infamous 'goli maro salao ko chanting', or the Sitting MLA of AAP led Delhi Government aiding the riots in Delhi and throwing petrol bombs, or the anti CAA protests being funded by the Popular Front of India (PFI) and the leaders of Congress party being in touch with the PFI chief, or the police aiding the riots under the instructions of its top officials and political masters etc.

That the above version shows that the list of accused in the DELHI CAA RIOTS apart from other civilians could involve sitting ministers of both Central and State Governments, it could also involve leaders of opposition parties and the most important it could also involve officials of the Delhi Police itself.

That the Delhi Police despite the above version is allowed to carry on the investigation under a so called SIT formed by it self and the question relating to forming of an SIT by the Court has not been answered till date. It has obviously resulted in giving a clean chit to itself and its political masters by the Delhi Police and further resulted in filing charge sheets against a certain class of people.

Be that as it may, the important issue that remains to be considered by the Courts and the legal fraternity is "who should be representing the prosecution in the CAA Riots Case" on the principle of FAIR TRIAL, specially when the sitting ministers of both the Central and the State governments have been accused of instigating the riots and one of the other alleged accused is the investigating authority itself .

The ongoing tussle between the Delhi Government and the Central Government to appoint their lawyers as prosecution advocates in the CAA riots case also reminds of a maxim that an "accused cannot prosecute its Self". The distinction between a lawless society and one governed by laws would cease to have any meaning if the accused himself is allowed to prosecute its self. This is infact a perfect case where the learned advocates (Political Appointments) for the Central and the State governments should recuse themselves from being appointed as prosecutors because of potential conflict of interest or lack of impartiality. They simply cannot act in defence of their political masters and also assume the role of prosecutors against their political masters.

The maxim that king can do no wrong or that the crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the crown, but in the people who elect their representatives to run the government , which has to act in accordance with the provisions of the constitution and would be answerable to the public for any violation thereof , and therefore the sitting ministers, government officials and the government itself is not above law in India.

The rule of law implies that every person is 'subject to law', including people who are lawmakers, law enforcement officials, and even judges. The Rule of Law considers what laws, norms, rules, procedure, systems, and structures should be followed in any given circumstance, no matter how exceptional it is, to ensure that the supremacy of the RULE OF LAW is adhered.

The CAA Riots case is an exceptional case involving the interests of those controlling the Executive and legislative institutions and therefore to allow people or their representatives, who could have interests in the trial as an alleged accused, to be a part of the prosecuting agency is against the concept of Fair Trail.

The courts are duty bound to ensure that the criminal justice system is seen to be fair, just and unbiased. The right to Fair Trial is one of the corner stones of a just society. A trial primarily aimed at ascertaining truth has to be fair to all concerned which includes the accused, the victims and society at large. Each person has a right to be dealt with fairly in a criminal trial. The Concept of Fair Trial has been crafted to ensure that every person coming before our Courts is afforded-from the moment investigation or detention begins till the final disposition of the case-equal protection no matter what their birth or national origins are; their social or economic status is; or their religious or political beliefs are; or no matter how grievous the alleged crime is.

The application of fair trial norms to every single instance and at every stage of the criminal law is recognised both internationally and nationally in India, as a fundamental right. These rights, constitutionally guaranteed, compel and cast a legal duty on the courts to ensure that they are respected, realised and never violated.

Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice, often referred to as the duty to vindicate and uphold the 'majesty of the law' and it cannot afford to be ignorant to the serious defect of the prosecuting agency not seen to be independent or not seen to be fair.

In Zahira Habibullah Sheikh and ors. Vs. State of Gujarat and ors, reported in (2006) 3 SCC 374 at 395, according to the appellant, there was no fair trial and the entire effort during the trial and at all relevant times before also was to see that the accused persons got acquitted. When the investigating agency helps the accused, the witnesses are threatened to depose falsely, prosecutor acts in a manner as if he is defending the accused, and the Court is acting merely as an onlooker , such trial only leads to "justice becoming the victim".

The supreme Court of India in the above case observed "each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated."

The Law Commission of India in its 154th Report on 'Code of Criminal Procedure, 1973' (in chapter III, para 15) quoted Babu v. State of Kerala : 1984 Cr LJ 499 (Ker H.C.) to the following effect:

"Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction"

The 'independence' of the prosecutor's function stands at the heart of the rule of law. Prosecutors are expected to behave impartially. (Report of the Criminal Justice Review in Northern Ireland, 2000)

The Courts should ensure that public prosecutors are independent of the executive and the legislative, and are able to perform their professional duties and responsibilities without interference or unjustified exposure to civil, penal or other liability. Public prosecutors must be in a position to prosecute without influence or obstruction by the Executive and legislative for offences committed by such persons, particularly related corruption, misuse of power, violations of human rights etc

The responsibility to follow the due process rests on everyone involved in the administration of justice. Nevertheless, the judge, because he has absolute control of his Court, has a paramount responsibility to ensure that the process inspires confidence, ensures impartial treatment and is seen as transparently fair by all who approach it. Courts are the first and most important means by which both victim and accused can be assured of a level playing field which is the essence of maintaining the balance between individual liberties and state power, to bring justice to people. The sole aim of the law is approximation of justice and assurance of fair trial is the first imperative for dispensation of justice. It cannot be denied that one of the most valuable rights of our citizens is to get fair and impartial trial, free from an atmosphere of prejudice. In law the expression justice comprehends not merely a just decision but also a fair trial. A denial of fair trial is denial of justice.

The Hon'ble Supreme Court in the case of Rekha Murarka vs. The State of west Bengal and Anr. in crl Appeal No. 1727/2019 has held:

"8. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial , as he is not just a representative of the aggrieved person, but that of the State at large….. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial."

Courts have a duty to ensure that a disadvantage is not permitted to become an obstacle to the attainment of justice. Therefore in the present case, any scheme of appointment of prosecutors, must result in the creation of an independent body of prosecuting officers who are free from any external influence such as the Executive and the legislative, who must be able to enforce the rule of law without fear or favour, advance public interest in punishing the guilty and protecting the innocent.

That since the CAA Riots case is an exceptional case and therefore to adhere to the supremacy of RULE OF LAW, it demands exceptional Solutions. The Hon'ble Courts keeping in view all the above, should consider appointing AMICUS CURIAE (friend of the court) as prosecutors, the court should consider appointing the best independent lawyers in India as Amicus Curiae on behalf of the prosecution, or in the alternate consider directing the Courts legal Service Authority to appoint the best lawyers as prosecutors in the Delhi CAA RIOT Case/ CAA RIOTS CASE to impart transparency and fairness to the entire Criminal Justice Process.

The above would not only be an attempt to ensure transparency but would also ensure that the guilty ministers of the Central and State Governments, the guilty leaders of the opposition parties, guilty Government officials etc do not escape from the clutches of law.

IN VISCOUNT SIMON IN STIRLAND VS. DIRECTOR OF PUBLIC PROSECUTOR, REPORTED IN 1944 (2) ALL ER 13 Court held as follows: "A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties."

To Conclude I would only quote Lord Denning for people who would be against the above idea of appointing AMICUS CURIAE as Prosecutors:

" What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least.

If we never do anything which has not been done before, we shall never get anywhere. The Law will Stand still while the rest of the world goes on, and that will be bad for both"

AND

" Unlike by brother Judge here, who is concerned with law", he once teased at a legal dinner, "I am concerned with justice".

Views are personal only.

(The author of this Article is an Advocate-on-Record in the Supreme Court of India, a Former Member Executive of the Supreme Court Advocates On Record Association and an AMICUS CURIAE appointed by the Supreme Court of India. He can be reached on reinlawconsultants@gmail.com)