The article examines the issue of selective prosecution and Indian judiciary’s approach toward it. It also highlights the importance of recent Goswami case.

Selective prosecution: Form of abuse of state power

• Recently the case involving bail application of a T.V. anchor brought to the fore issue of selective prosecution.
• The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
• In case of selective prosecution, the police and enforcement agencies selectively target political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison.
• It is one of the oldest, most pernicious and widespread forms of abuse of state power.

How it is illegal: Two independent legal issues

1) Exercise of prosecutorial discretion

• The applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare.
• However, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.
• The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds.

2) Merit of the case filed

• When the choice of accused runs contrary to the Constitution, the entire criminal proceeding is vitiated, 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.
• The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified.
• In the context of this discussion, the constitutionally prohibited ground we are 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.

Approach of judiciary

• Our courts have not recognised selective prosecution as an independent claim.
• This is because courts assume that lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.
• 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.
• Remedy after acquittal comes far too late, well 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.
• Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required 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

• The 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.
• The judgment says, “Courts should be alive to the needof ensuring that the law does not become a ruse for targeted harassment ”.
• The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he 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.”

Consider the question “How selective prosecution could threten the liberty of person? How Indian judiciary approaches the issue of selective prosecution and what are the issue with the approach adopted by the judiciary?”

Conclusion

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.

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