A policy that offered incentives to prosecutors for securing capital punishment was withdrawn by the Madhya Pradesh government fearing an adverse judgment from the Supreme Court, which has reserved its order in the matter.
“In the state of Madhya Pradesh, any such policies existing for public prosecutors in which any kind of incentive or encouragement is given to them to secure death penalty or conviction during trial is hereby withdrawn and the same stands cancelled,” stated the order issued by the Madhya Pradesh directorate of public prosecution in Bhopal on Friday.
The state government said it would inform about its decision to the top court when it reopens in July.
The state’s policy was criticised as unconstitutional by the top court, which reserved orders on its validity in a suo motu (on its own) proceeding on May 19.
The policy under challenge titled “Prosecution Performance Evaluation and Monitoring System” was introduced by the state government in January 2017 to encourage and improve the performance of prosecutors. For each conviction, positive points were awarded, while for acquittals, prosecutors were given negative marks. In case of death penalty, 1,000 weightage points were added and the prosecutor securing most points got the title “Pride of Prosecution”.
In January 2019, the state introduced a Lifetime Achievement Award promised to a prosecutor who secured five or more death sentences. Warning letters were issued to those who fell below the mark. Prosecutors who performed well on each of these parameters were given preference in getting postings of their choice, besides improved career prospects as the numerical points awarded were considered while writing their annual confidential reports.
{{/usCountry}}In January 2019, the state introduced a Lifetime Achievement Award promised to a prosecutor who secured five or more death sentences. Warning letters were issued to those who fell below the mark. Prosecutors who performed well on each of these parameters were given preference in getting postings of their choice, besides improved career prospects as the numerical points awarded were considered while writing their annual confidential reports.
{{/usCountry}}The policy was brought to the notice of the Supreme Court in a proceeding for framing of uniform guidelines regarding “mitigating circumstances to be considered while imposing death penalty”. On May 19, the court heard attorney general KK Venugopal along with amici curiae (friends of the court) — advocates Sidharth Dave and K Parameswar — on how to put in place such a mechanism and at what level during the trial.
Parameswar informed the court that the Madhya Pradesh government’s policy that incentivised awarding of capital punishment went contrary to the scheme of fair trial and the role of a prosecutor in a criminal prosecution.
“Put your house in order,” the court told the state. “These incentives must stop. We will reserve orders but it shall be open to you to withdraw it. If you stick to it, we will pass a judgment when the court reopens after vacation. You have sufficient time.”
While reserving orders on May 19, the bench of justices UU Lalit, S Ravindra Bhat and Sudhanshu Dhulia said, “Our attention is invited to some of the documents to submit that the state was seeking to incentivise securing of capital punishment on part of the public prosecutors and that would undermine the prosecutorial independence, prosecutorial discretion, fair trial and judicial independence.”
The bench found it “astonishing” how a public performance’s performance could be linked to the decision by the court. Noting the dangers involved in accepting such a policy, the bench said, “In our system, prosecutor is placed at the centre of trial. The prosecutor can ensure a certain outcome by suppressing a fair investigation and such withholding is being incentivised.”
Pursuant to the order, Madhya Pradesh’s additional advocate general, Saurabh Mishra, wrote a letter to the directorate of prosecution in the state, advising that the policy be withdrawn. He indicated that the court had taken a view that the policy was “unconstitutional” and “illegal” as it adversely affected the fundamental right of fair trial guaranteed under Article 21 of the Constitution.
Further, he informed the state that since time has been given to reconsider the policy, it would be in the fitness of things if the policy was withdrawn. “This would obviate the need to pass a judgment and the state can be saved of adverse remarks from the top court,” the letter said.
The state government then took a call to withdraw its policy. The state directorate of prosecution will file an appropriate affidavit, informing the top court of its latest decision, before the reopening of the court in July.