Dear Prashant Bhushan,
I have great respect and admiration for you and others who valiantly and against great odds continue to use public interest litigation (PIL) to advance public good and highlight the pitiful state of politics and corruption in India. The courts in India, perhaps understandably – because of public necessity – have embraced an overly activist role. Overall, the sum impact of expanding the scope of the PIL has been positive. It has given people recourse to litigate all manner of social, political, economic and justice issues. If our politicians are blind, deaf and dumb to the burning needs of people, the expansion of the scope and ambit of justiciability has been, and continues to be, of tremendous significance for Indian society.
I was very interested in your application to the Supreme Court of India – which asked that a court-monitored Special Investigation Team (SIT) probe the claims that came to light in the Sahara-Birla papers, which included allegations like various politicians – including the then chief minister of Gujarat, Narendra Modi – being bribed with money. But as you know the PIL can’t ever completely replace public political struggle. Despite the impressive and significant benefits of the PIL’s expansion, there is great danger of it becoming a regular substitute for legitimate, but difficult, legal and political change – effectively relegating the need to organise active political campaigns to eradicate corruption to the background.
For the purposes of full disclosure, I am a lawyer by training. But my training was in Canadian law and I was in electoral politics for a long time until my recent retirement. Hence, I am at a disadvantage when it comes to discussing the finer points of Indian law. However, I was the Attorney General of British Columbia (BC) for several years and as such was responsible, among other things, for the courts, policing and prosecutions in the state. In Canada, in my case in BC, the police independently decide who, when, how, why and where to investigate. They then forward their report to the Crown Prosecutors. The prosecutors decide whether or not to lay charges and they alone have the unencumbered right to stay the charges if they so decide after proceeding with them. If one feels someone should be prosecuted despite the police and prosecutors not proceeding, one has the right to lay the criminal information before a Justice of Peace, who in his/her independent role determines – based on legal principles and precedents – whether the charge should be laid. If the charge is laid on the basis of the private information, the person can be prosecuted by the lawyer of information and/or his/her lawyer. This rarely happens because people have a high degree of confidence in the independence of the whole process. In any of the above, there can’t be, and there isn’t, any direct or indirect political interference.
I do realise the whole machinery of government in India is corrupt to the core, with only a few exceptions; hence the need and reality of the PIL’s expanded scope. But in my part of the world, the Sahara-Birla issue that you took to the Supreme Court would have been raised in the public domain. A complaint would have been made to the Royal Canadian Mounted Police, leaving it for them to decide whether or not to investigate. And if the activists or politicians wanted a larger probe, they would have publicly demanded an independent Judicial Commission of Inquiry, with a retired judge presiding with all the subpoena powers of a court. Furthermore, Prime Minister Narendra Modi and others mentioned in the case would have been under intense public pressure to resign from their current public positions.
I fully understand the police in India – stymied by politics and corruption – won’t act, honestly conduct or complete an investigation if they ever get around to starting one. Numbed by the omnipresent corruption, the public sees everything through a partisan lens. Hence your plea to the court to establish what India calls the ‘court supervised SIT’ for the investigation to be commenced and completed with some integrity.
It seems to me that if India continues to rely heavily on the PIL process to argue and litigate questions of political ethics and morality, it shall forever remain wedded, and limited, to the SITs. Indian justice won’t flourish. The police won’t improve. Politics won’t change. As a political activist you must realise that ultimately the government of India must be publicly held to account and shamed and/or cajoled to order a probe. Normally a sitting prime minister being named for allegedly receiving bribes would constitute an earth shaking occurrence. And yet the country sleepily rumbles along? If honesty and integrity is important in public life – which it is to the people of India, by now Modi should have been forced to resign through the pressure of public opinion and would have been the subject of a judicial probe. The CBI – if it is worth the name it carries and the office its functionaries hold – should have probed what is prima facie a very serious allegation. If, having investigated, it had found that there was no fire despite the smoke, so be it. The fact that the CBI won’t even ask for permission to commence an investigation – if one is required – or otherwise start one tells me the whole system is terribly broken; policing, prosecution and most of the judiciary are not independent.
That brings me to my final and most important point. You would understand more than most that the courts are limited by laws and precedents. The PILs and SITs, court monitored or not, can only take one so far. Petitions to the courts can’t ever be a complete or a permanent answer to India’s corruption. The people win when public opinion, with or without parliamentary opposition, can bring the government to heel.
In fact, in the Sahara case, you petitioned the court to be and do what it isn’t designed or intended to be or do – the initiator of criminal probes and inquisitor in the political arena. It is only in the public and political domain that corruption can and must be challenged: on the roads and in the streets, in the villages and hamlets, in the towns and cities, on the hustings and in parliament. Only political struggle can make Indians and India corruption free. No number of PILs will ever accomplish that.
But still a big thank you for being the PIL man; I know you know it, but make sure Indians also know that it is only a very small part of a very big and much needed – to my mind, an epic – political struggle.
A well wisher.
Ujjal Dosanjh tweets at @ujjaldosanjh