NEWS  The November 27, 2020 Supreme Court judgment granting TV anchor Arnab Goswami bail has brought the debate on the selective prosecution in the forefront. It is being said that many not as fortunate as Mr. Goswami to be quickly bailed out by the top court, are languishing in prison in inhuman conditions.

CONTEXT One of the oldest, most pernicious forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them, ostensibly on grounds unrelated to their ideology or politics, while sparing comparably placed supporters and friends of rulers of the day.

SELECTIVE PROSECUTION RAISES FOLLOWING QUESTIONS

• Is this use of state power legally permissible?
• Is there no escape for victims of such abuse of state power?
• Is their only remedy bringing an action for wrongful prosecution years later — if they are acquitted and after suffering through many years of process as punishment?
• Or is there a legal remedy for nipping this evil in the bud, at the very outset, to protect the life and liberty of the accused?

PROBLEM INVOLVED IN THIS TYPE OF PROSECUTION 

• The problem is that the illegality involved in this type of prosecution is not self evident. 
• As at first glance, the prosecution appears legally legitimate— acting on information about legal infractions, the police pursue the accused as per law. 
• The problem arises when two independent legal questions are wrongly conflated: first, the legality of the exercise of prosecutorial discretion in the selection of the accused for being investigated and prosecuted; and second, the merits of the criminal case filed against them. 

SELECTIVE PROSECUTION 

• Selective prosecution means the illegal selection of accused based on grounds prohibited by the Constitution. The constitutionally prohibited ground confronting in India is the political or ideological affiliation of the accused. It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.
• In the words of then Chief Justice W. Rehnquist of the United States Supreme Court, “A selective prosecution claim is not a defence on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” (United States v. Armstrong (1996)). 

IMPLICATIONS OF SUCH PROSECUTION 

• It vitiates, the entire criminal proceeding, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them.
• Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue.,i.e., trial on the merits of the case.
• The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution.

FAILURE OF INDIAN COURTS 

• Indian courts have not yet recognised selective prosecution as an independent claim because of the erroneous assumption that the lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted. 
• Thus, for example, the 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.
• Even remedy after acquittal comes far too late, after a brutal and long drawn out criminal justice process that upends the lives of the victims. 
• Also, the right against selective prosecution cannot be extinguished by conviction.
• Hence, separate from post acquittal actions for wrongful prosecution, the claim of selective prosecution requires to be adjudicated at the outset of criminal proceedings (even during the investigation stage) irrespective of the merit of the charges.

IMPORTANCE OF GOSWAMI CASE IN THIS REGARD 

• The judgment of Justice D.Y. Chandrachud in the Goswami case provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution unleashed by the state and defend our liberty.
• In addition to acknowledging Mr. Goswami’s claim that he is being targeted for opinions he holds and expresses, the judgment says, “Courts should be alive to… the need …of ensuring that the law does not become a ruse for targeted harassment …The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law”.
• The judgment also quoted the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “ The basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.”

To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

Reference:

1. https://www.thehindu.com/opinion/lead/defending-liberty-against-political-prosecution/article33629363.ece