Context: The public prosecutor has an ethical obligation to balance the interests of the victims, the accused, and society. His/her conduct shouldn’t be of a persecutor aiming to persistently harass the accused.
Background

• Father Swamy’s arrest under the Unlawful Activities (Prevention) Act (UAPA) has highlighted issues related to police power, pretrial detention, and draconian anti-terror legislation.
• However, the role of prosecutors towards under-trial detentions has been largely ignored. 

Duty Of The Public Prosecutor In The Criminal Justice System

• An ideal Prosecutor must consider herself/himself as an agent of justice. In India, we have a public prosecutor who acts in accordance with the directions of the judge. 
• Normally, the control of entire trial is in the hands of the trial judge. Investigation is the prerogative of the police. 
• However, it is generally believed that traditional right of nulle prosequi is available to the prosecutor. 
• The public prosecutor in India does not seem to be an advocate of the state in the sense that the prosecutor has to seek conviction at any cost. 
• The prosecutor must be impartial, fair and truthful, not only as a public executive but also because the prosecutor belongs to the honourable profession of law, the ethics of which demand these qualities.

In India, the criminal justice system should function within the framework of the Indian Constitution. Succinctly speaking, the principles enunciated in the Constitution are as infra :
Presumption of innocence: Accused presumed to be innocent 4. Deprivation of life / personal liberty only in accordance with procedure established by law (See Article 21 of the Indian Constitution)

• Equality: The guarantee of equality before the law .
• Equal Protection: Equal protection of the laws .
• Beyond all reasonable doubt: The guilt must be proved beyond all reasonable doubt
• Double jeopardy: Protection against double jeopardy
• Non-retrospective punishment
• Prohibition of discrimination: Prohibition of discrimination imposed upon the State
• The right of the accused to remain silent
• Arrest/detention must be in accordance with law and judicial guidelines.
• Speedy trial.

Role of public prosecutor in criminal justice system

• Public prosecutors are influential at every stage of a trial and impact the degree of justice awarded to the accused.
• They decide what offences the accused person should be charged with, whether to seek pre-trial custody and what sentence to ask for. 
• The prosecutor played a significant role in ensuring that the bail plea of Father swamy doesn’t get accepted by giving sufficient evidence against him.
• Further, he argued that the court must give precedence to the interest of the community/society over Father Swamy’s right to liberty.
• 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. They play a key role in translating criminal “law on the books” to criminal “law in action.
• Such narratives are especially crucial in cases involving alleged terrorist activities and “anti-nationals”, where the issue of security of the state becomes important for an ordinary citizen.
• Further, their opinions have built a culture supporting undertrail detentions. Currently, two third prisoners in Indian jails are undertrials.

Judgements on their conduct

• Sheo Nandan Paswan v. State of Bihar (1986): The SC said that 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.
• Jitendra Kumar v. State (1999): The Delhi HC said that the prosecutor 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.

Road Ahead

• The public prosecutors represent the public and are not mere mouthpieces for law enforcement agencies. They have an ethical obligation to seek justice balancing the interests of the victims of crime, society, and those accused of crimes.  Thus, public prosecutors who support criminal justice reform can be a powerful force for altering the culture of undertrial detention.
• In pursuance of their duties, public prosecutors should not use improper methods calculated to produce wrongful convictions and she/he must discharge her/his functions in a scrupulously fair and honest way. A fortiori, a Public Prosecutor has the responsibility of a minister of justice and not simply that of an advocate.

By: Shubham Tiwari