Father Stan Swamy’s recent death while waiting for bail has prompted an outcry among lawyers, activists and concerned citizens. While those who admired him were processing their grief, the same National Investigation Agency (NIA) Court rejected bail for one of his co-accused, Anand Teltumbde . Father Swamy’s arrest under the Unlawful Activities (Prevention) Act (UAPA) and the denial of bail to him and others accused in the Bhima-Koregaon case have highlighted issues related to police power, pretrial detention, and draconian anti-terror legislation. However, the role of prosecutors in perpetuating the dominant attitude towards undertrial detention has been largely ignored.
Role of public prosecutors
The NIA Court order rejecting Father Swamy’s request for bail stated that the prosecutor submitted various pieces of evidence to prove a prima facie case against the accused. The prosecutor argued that the court must give precedence to the interest of the community/society over the right to liberty even though by this stage, Father Swamy’s need for medical attention was apparent. He had Parkinson’s disease, his hearing was impaired and he had contracted COVID-19. Was an 84-year-old man in such a precarious state of health a threat to the community’s interests? Was there any risk of him absconding or tampering with evidence if released? The prosecutor’s stand in the case as mechanically presenting the investigating agency’s case while zealously demanding prolonged detention of the undertrial throws up vexing questions about the role of public prosecutors in the criminal justice system.
Public prosecutors are influential at every stage of a trial. They decide what offences the accused person should be charged with, whether to seek pretrial custody, and what sentence to ask for. However, public prosecutors, unlike defence counsel, have an ethical obligation to seek justice balancing the interests of the victims of crime, society, and those accused of crimes. They represent the public and are not mere mouthpieces for law enforcement agencies. The Supreme Court in Sheo Nandan Paswan v. State of Bihar (1986) cautioned that even though prosecutors have a duty to represent the executive for trying the offender, and it is broadly their responsibility to see that the trial results in conviction, they need not be extremely concerned about the outcome of the case. They act as officers of the court and are obliged to ensure that the accused person is not unfairly treated. The High Court of Delhi, in Jitendra Kumar v. State (1999), warned that, “In performance of his duty he can prosecute the accused, but he cannot assume the role of a persecutor. It is no part of his duty to secure conviction at all costs... The Public Prosecutor should act fairly and impartially and must be conscious of the rights of the accused. He is not only required to conduct prosecution case... but [also] respect and protect the rights of the accused.”
The duty of a public prosecutor to not assume the role of persecutor is vital in trials under special statutes like the UAPA, which water down fair trial guarantees. Undertrial detention becomes a convenient means to punish those accused under the UAPA without convicting them. Such trials are long-drawn-out, and the conviction rate is low. In 2019, in 11% of UAPA cases (pending from previous years and filed in 2019), the police closed the case because of insufficient evidence or because the accused was untraceable. Charge sheets were filed in only 9% of the UAPA cases. The conviction rate for UAPA cases was 29.2% compared to an average conviction rate of 50.4% for crimes committed under the Indian Penal Code.
Narrative building
Public prosecutors also have a role in narrative building. Since they present the state’s case in criminal trials, they build narratives of criminality and criminalisation. Daniel Richman describes them as “adjudicative gatekeepers” who play a key role in translating criminal “law on the books” to criminal “law in action.” Such narratives are especially pernicious in cases involving alleged terrorist activities and “anti-nationals”, where anxieties about the security of the state already haunt the imagination of those in the criminal justice system and ordinary citizens. Thus, public prosecutors who support criminal justice reform can be a powerful force for altering the culture of undertrial detention.
The responses of the prosecutors and law enforcement agencies reflect the carceral logic that buttresses undertrial detention. Two-thirds of India’s prison population comprises undertrial prisoners. This reflects the embedding of this carceral logic in the architecture of law enforcement and manifests in prosecutors demanding prolonged custody of the accused. Reversing course will require a re-imagination of the objectives of the criminal justice system and cultural change.
Leah Verghese is with DAKSH, a nonprofit based in Bengaluru
