Print edition : November 19, 2021

The site of a blast that ripped through a train at Mumbai’s Matunga railway station on July 11, 2006. It was one of seven bombings within 11minutes targeting Mumbai’s suburban railway network. Abdul Wahid Shaikh, writer of the book “Innocent Prisoners: Stories of Muslim Youth falsely implicated in 7/ 11 Mumbai train blasts and other terror cases”, was the only person to be acquitted out of 13 accused in the case. Photo: Aijaz Rahi/AP

Innocent people suffer because public prosecutors in India are not free of government control, and the victims are very often Muslims.

“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. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.” (A.V. Dicey, Introduction to the Study of the Law of the Constitution; pages 193-194)

But how was it possible? It was possible because the prosecutor was “independent of the politicians in power”. The case of one Attorney-General, suspected of breach of the principle, led to the fall of the first Labour government in 1924 and his own resignation.

In general, anyone may commence criminal proceedings subject to the risk of paying the costs of an unsuccessful action and, in some cases, of being sued for malicious prosecution. Certain statutes, however, require the consent of the Attorney-General or the Director of Public Prosecutions to the bringing of prosecutions. The Law Commission has recommended a rationalisation of the consent regime.

A national prosecution service

The prosecution system was reformed by the Prosecution of Offences Act, 1985. Until 1985 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 on 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.

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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 (Section 2 of the 1985 Act), and his powers and duties are to be found largely in that section. 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; and 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 assigned to him by the Attorney-General.

The conduct of proceedings is the responsibility of members of the Service designated as Crown Prosecutors. Since 1999, the CPS is divided into 42 prosecution areas, each headed by a Chief Crown Prosecutor; within each area there are one or more local branches headed by a Branch Crown Prosecutor who is responsible for a team of lawyers and caseworkers. Section 10 of the Act requires the Director to issue a code to Crown Prosecutors giving guidance on the general principles to be followed by them in deciding whether to institute proceedings, and what charges should be preferred. The terms of the code, which have been revised from time to time, is contained in the report which the Director must make each year to the Attorney-General who then lays it before Parliament (section 9). Crown Prosecutors have all the powers of the Director as to the institution and conduct of proceedings, but they must exercise their powers under his direction.

In India the law laid down by the courts says one thing; the reality is the opposite. This is because the organisational set-up reduces the prosecutor to a paid hack of the State government. Section 24 of the Criminal Procedure Code of 1973, like its colonial predecessor of 1898 which it substantially adopts, empowers the Central and State governments to appoint Public Prosecutors after consultation with the High Court. Section 25A(3) enables the State government to establish a Directorate of Prosecution. Its head will be the Director of Prosecution “who shall function under the administrative control of the Head of the Home Department of the State”. Every Public Prosecutor “shall be subordinate to Director of Prosecution”—who, as we have seen, “shall function under the administrative control of the Head of the Home Department of the State”. The “powers and functions” of the Director of Prosecution “shall be such as the State government may, by notification apply”, that is, by rules under the Code S. 20A was inserted in 2006 (NHRC vs. State of Gujarat [2009] 6 Supreme Court Cases 767).

This does not at all guarantee the independence of the Public Prosecutor. To the contrary, not every Public Prosecutor has the independence of Rohini Salian, who refused to obey the advice to “go slow” in a politically charged case. She resigned.

Innocent Muslim prisoners

Read this book and you will realise what is at stake. Innocent Prisoners: Stories of Muslim Youth falsely implicated in 7/ 11 Mumbai train blasts and other terror cases by Abdul Wahid Shaikh (Pharos Media & Publishing Pvt. Ltd., D-84 Abdul Faz1 enclave, Jamia Nagar, New Delhi, 504 pages; Rs.495).

It covers cases like the Khar Subway blast, the Jogeshwari bomb blast, the Borivli bomb blasts, the Mira Road blasts and others in ample detail. There is a chapter on police torture.

Also covered are the German Bakery blasts of 2010, the Malegaon bomb blasts of 2006—a case which deserves a book by itself—and the Aurangabad arms haul case. And the Akshardham attack.

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The book is thoroughly documented. One wishes someone would write a biography of the brilliant and fearless advocate Shahid Azmi who was shot dead on February 4, 2010, by three men who barged into his office. He deserves a memorial. He had filed a complaint at the Kuria Police Station of threats to kill him but was not given any police protection. Mumbai Police Commissioner Ajoy Roy refused to meet him.

The writer, Abdul Wahid Shaikh, was the only person to be acquitted out of 13 accused in the July 11, 2006, Mumbai train bombings case. Born in Pune, he did his schooling in Mumbai after his family shifted there. His father was a carpenter and even did tailoring. After acquiring a diploma in teachers’ training, he got his first job in 1998 to teach science at Anjuman-e-Islam School, Mumbai. He completed his post-graduation and studied law during his nine years in jail. Keeping his promise to his co-accused, he travels around the country talking about the truth. A Hindi feature film based on his life will soon be released. He married in 2003 and has four children. Even years after his acquittal, the police continue to harass him. To fulfil the dream he had before his arrest 15 years ago, he is now pursuing his PhD.

Discretion and judgment

The decision to prosecute is not a mechanical one. It calls for discretion and sound judgment. On December 1, 1925, Sir John Simon, a former Attorney-General, laid down the rules to the House of Commons. They were approvingly quoted by Prime Minister Harold Macmillan in Parliament on February 16, 1959.

Simon said: “There is no greater nonsense talked about the Attorney-General’s duty than the suggestion that in all cases the Attorney-General ought to prosecute merely because he thinks there is what lawyers call ‘a case’. It is not true, and no one who has held that office supposes that it is. I understand the duty of the Attorney-General to be this. He should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that he shall prosecute. His first duty is to see that no one is prosecuted with all the majesty of the law unless the Attorney-General, as head of the Bar, is satisfied that a case for prosecution lies against him. He should receive orders from nobody. But that is very different from saying that the Attorney-General ought in all cases to ask nobody else’s view, because he thinks there is a case to institute a prosecution without finding out what his colleagues or the government think. That is a ridiculous proposition. If the Leader of the Opposition at the general election were to make a seditious speech, does anyone mean to tell me a Conservative Attorney-General would start a prosecution against him without consulting the Cabinet? Of course, he would not. I am confident that the Attorney-General would never undertake a prosecution, whatever anybody asked him to do, unless he thought the prosecution was justified, but I should regard him . . . as a fool if he were to start on his own motion prosecutions which involve grave matters of public concern—treason, sedition, corruption and the like; if he did such a thing without knowing that, in the view of his colleagues, public policy was not offended by undertaking such prosecution.”

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Another Attorney-General, Sir Hartley Shawcross, said in 1950: “It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should intervene to prosecute, amongst other cases: ‘wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.’ This is still the dominant consideration. I should perhaps say that, although he is called the Director of Public Prosecutions, constitutionally I am responsible for all his decisions, and as a Minister of the Crown I am answerable to the House for any decision he may make in particular cases…. My honourable and learned friend then asked me how I direct myself in deciding whether or not to prosecute in a particular case. That is a very wide subject indeed, but there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party’s or the government’s political fortunes; that is a consideration which never enters into account. Apart from that, the Attorney-General may have to have regard to a variety of considerations, all of them leading to the final question—would a prosecution be in the public interest, including in that phrase of course, in the interests of justice?”

There is a world of difference between a party-political consideration and a consideration of the state. Jawaharlal Nehru and his colleagues would not have taken office as members of Wavell’s Executive Council unless he set Subhas Chandra Bose free; that is, had he been caught alive.

For sound reasons of public interest, Tej Bahadur Sapru advised the Governor-General not to prosecute Gandhi. The prosecutions of Afzal Guru and Yakoob Memon were as ill-advised as the Supreme Court’s death sentence, and angry remarks by the court were disgustingly wrong.

Police admission of trust deficit

In what is perhaps the first admission of its kind, the police have concluded that there is a trust deficit among Muslims, who see them as “communal, biased and insensitive.... ill-informed, corrupt and lacking professionalism”.

A report, “Strategy for making police forces more sensitive towards minority sections”, prepared by three Directors General of Police—Sanjeev Dayal of Maharashtra, Deoraj Nagar of Uttar Pradesh and K. Ramanujan of Tamil Nadu—along with an Intelligence Bureau representative, says that distrust comes from poor representation of minorities in the forces and the conduct of some policemen during riots.

“Poor representation of the minorities in the police forces has contributed to this distrust and suspicion. It has to be admitted that the conduct of some members of the police forces in various States during communal riots had only served to strengthen and heighten these suspicions and distrust in the minority communities,” it says.

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Saying that Muslims form the largest minority, constituting “a vocal and large section of the population” in most States, the report calls for urgent correction of the perception in the community about the police as it “impinges on the communal situation of the country and thus its internal security” (Smita Nair; Indian Express; July 17, 2014).

There is one case of police misdemeanour which deserves exposure— the prosecutions in the Bhiwandi riots case in 1970.

The Bhiwandi case involved nearly 50 Muslims charged with destroying Hindus in the city. Involved was a leader of the Communist Party of India (Marxist), Ibrahim Maddu. If the falsehood was not exposed before the Madon Commission, they would have been convicted on tutored evidence, that is, tutored by the police.