The prosecutor THE prosecutor has been under a cloud for a long time

  0 comments   |     by A.G. Noorani on July 21 , 2018

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

THE prosecutor has been under a cloud for a long time; of late that cloud over his office has darkened. On April 20, Maya Kodnani, a minister in Narendra Modi’s Gujarat government, was acquitted in the Naroda Patiya case in the 2002 pogrom of Muslims. Kodnani became a minister after the riots. In 2012, she was convicted by a trial court as the ‘kingpin’ of the riots and given a 28-year prison term. The high court acquitted her on appeal. Arjun Modhwadia, a Congress leader, accused the prosecution of lapses, saying, “Prosecution lawyers drafted the affidavits of some of the accused”.

Her acquittal has been received with disbelief. She was seen by some at the scene, exhorting the mobs to kill Muslims, distributing swords and assuring the 

Joginder Singh Wasu, argued for 15 minutes on a record of 6,500 pages. In April 1980, a three-member bench of the apex court acquitted the accused in a scrappy judgement. The judges were justices S.M. Fazal Ali, P.S. Kailasam and A.D. Koshal. Such judges deserve immortal fame. The Indian Criminal Procedure Code vests in the governments, central and state, the power to appoint public prosecutors and a special public prosecutor for a special case (Section 24). He is removable at its whim. Judicial pronouncements on his independence are futile. The same is true of his power to withdraw a case with the consent of the court (Section 321). Judges have ruled that he cannot be dictated to by the state. They cannot protect him from dismissal. Only a director of prosecution created by the constitution can. In the US, the Ethics in Government Act of 1978 empowers the court to appoint an independent prosecutor. Robert S. Mueller III is special prosecutor in the current investigations into charges of Russian meddling in the US presidential election. Even though the independence of the prosecutor existed in Britain prior to 1986, it nonetheless established the Crown Prosecution Service that year under the Prosecution of Offences Act of 1985. In 1924, Sir Patrick Hastings had to resign as attorney-general because he had withdrawn the prosecution of J.C. Campbell, editor of a communist weekly, for political reasons. Finley Peter Dunne, in his classic Mr Dooley’s Opinions, wrote: “No matter whether th’ Constitution follows th’ flag or not, the Supreme Coort [Court] follows the iliction [election] returns.” The Supreme Court’s conduct in the Kissa Kursi Ka case proved the wisdom.

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

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