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Case for the prosecution

Hold government accountable: create more independent prosecutors

Written by Nick Robinson |
April 30, 2009 10:52:15 pm

Does India have too few lawyers? Well,that’s certainly debatable,but it could probably benefit from some more prosecutors. Despite India’s rising global prominence,there is a startling and continuing gap between the laws passed by Parliament and the law that is enforced. Ration shops that are supposed to be open six days a week are open barely one. Untreated sewage is dumped into rivers,flouting environmental rules. Criminal and anti-corruption laws seem to roll off the back of the politically connected. Ordinary Indians can be excused if they think the law often seems more like a vision statement for the country than a reliable indicator of what will actually be implemented. 

Under-enforcement of the law is often blamed on a lack of political will,but this misses a key point. There are too few prosecutors with the power and independence to

enforce the law not just against citizens,but against the government itself,no matter the political winds.   

This has not gone unnoticed by the courts. At its base,most public interest litigation simply allows the public-spirited to prosecute the government to enforce its own laws. This legal innovation is an important recourse of last resort,but what is needed are stronger prosecutorial mechanisms. The law is as dependent on its prosecutors as on its judges,yet despite the hard work of many committed government servants,prosecutorial agencies in India are in disarray and frequently undermined. For example,even though the prime minister has reportedly proposed creating an independent directorate of prosecution,the CBI still acts as both investigator and prosecutor in its cases,reducing accountability and the ability to limit political interference. 

Frequently there is no clear prosecutor to act as a watchdog. The National Rural Employment Guarantee Scheme’s success in different states varies widely; but given its beneficiaries’ limited means,almost no legal cases have challenged these shortcomings. Strides towards enforcement are being made through the political process and civil society,but there is no independent prosecutor to act in the worst cases.

Even where there are clear prosecuting agencies,like the state pollution control boards,their effectiveness is limited. Several state boards do not have a single lawyer on staff; and when they do,these prosecutors are not empowered or insulated enough to decide which cases to pursue. For instance,municipalities’ inability to control sewage is one of the primary public health problems in the country. They’re rarely brought to account,though,because doing so is politically unsightly.

Meanwhile,the attorney general’s and advocate generals’ offices,which could act as backstop prosecutors,seem so closely aligned to the ruling political parties that they are relegated to mostly defending the government in court,while largely avoiding possibly controversial prosecutions.   

So,how does India make sure its prosecutors are not complicit with government non-enforcement of the law,but instead a check on it? Some answers are straightforward if difficult: making prosecutors across agencies more independent and increasing their number,resources,and incentives. 

Other potential solutions require more innovation. Reforms in tort law that increase awards and,in select incidences,make it easier for citizens to sue the government or third-party violators could allow for greater citizen-enforcement of the law. Another alternative may be found in Brazil,which faced similar problems to India. In response,hundreds of prosecutors were appointed beneath the attorney general with almost judge-like independence and a broad mandate to enforce the constitution and the law in a socially-minded manner. 

Whatever model is followed,empowering prosecutors comes with clear dangers and so social consequences should be its cornerstone. An overzealous prosecutor who is politically motivated can be far worse than an under-zealous one. Civil

society needs to be ready to rein in potential excesses,and in turn,prosecutorial authorities must be as transparent as possible. These agencies should publicly list which violations they will most actively prosecute — and then they should be held to task both for this prioritisation and their performance,especially in relation to the poor. 

One complaint sometimes heard from government officials is that if the law was fully put into effect it would paralyse and bankrupt the country. Increased enforcement may mean the Parliament has to consider amending some legislation to better match the state’s actual capabilities. It requires focussing on cases that would reduce the most socially damaging aspects of the current under-enforcement gap. The point is not to overload the judicial system — more judges are already needed to cope with its existing backlog — but to use the power of strong and independent prosecutorial agencies to negotiate,cajole,and,only where necessary,prosecute. This will certainly take new resources,but it will also pay large dividends.

When it comes to government accountability,there is no substitute for the active participation and sustained vigilance of citizens. Still,a strong force of socially minded,independent prosecutors can be a vital ally for citizens to

ensure the laws of the land — their laws — are enforced. 


The writer is a visiting fellow at the Centre for Policy Research,Delhi,and a Yale Law School South Asia Teaching and Research Fellow

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