Special Prosecutor needed for Hawala Case

A liberal society is based on rules applicable to all, not on the whims and discretion of rulers. Payoffs in return for favours are ant-liberal. Liberalisation is not simply about delicensing an activity or two. It is about empowering citizens by empowering citizens by replacing government diktat by competition within a set of fair rules. Competition eroded by ministerial favours and kickbacks cannot be called liberalisation. The Jain hawala case makes it clear that supposed liberalisers like the Congress and BJP are hypocritiies and rogues. A liberal society is one where crooked businessmen and politicians are subject to the rule of law. The IMF may not lay this down as a policy conditionality, but it is more fundamental to liberalism than controlling the fiscal deficit.

When Prime Minister Narasimha Rao was asked by Doordarshan to react to the revelations of the CBI in the Supreme Court, he said, “The law will take its course.” In fact Mr Rao has done his level best since 1991 to ensure that the law does not take its course. He is directly in charge of the CBI, and so is responsible for its inactivity for over four years (which the Supreme Court has rightly castigated). Under pressure from the Court, he has okayed wide-ranging charge sheets, hoping these will damage other parties more than his own.

Mr Rao’s name does not figure in the diaries. But the BJP claims that during interrogation by the CBI, the Jains said they had given Rs 3.5 crore to intermediaries to be passed on to Mr Rao. The Supreme Court must order the CBI to make public any such CBI transcripts. Evidence with the police must not be used selectively to tarnish some but not others.

Why did the BJP keep quiet about the Rao transcripts since 1991? Because it was part of a tacit political conspiracy of all parties to put the lid on a scandal touching them all (save, let it be said to their credit, the two communist parties).

When Prime Minister Narasimha Rao was asked by Doordarshan to react to the revelations of the CBI in the Supreme Court, he said ” the law will take its course.” Infact, he has done his level best since 1991 to ensure that the law does not take its course.

Mr Sharad Yadav of the Janata Dal has openly admitted taking money from the Jains. He has justified this by saying his is a poor party, unlike the others. I always thought socialism meant enriching the poor, but Mr Yadav thinks it means enriching poor political parties. Perhaps he believes that he must practice what he preaches, and so enrich himself before enriching others.

In sum, the problem we face is the corruption of the whole political system. Even when voters throw out a corrupt ruling party, the new government does not prosecute and convict the outgoing rogues. All major parties have been in power in one state or another. Yet none of them (not even the CPM) has convicted the supposed rascals they have replaced. Every party seems content with a system where nobody can be convicted, this ensures that its own crooks remain immune, and if this means immunity for the other side’s crooks too, be it.

This makes a mockery of democracy, Elections once in five years are not enough ensure the accountability of politicians. They must also be accountable in the years in between, and the law is supposed to ensure this. In fact the law is not permitted to do so because the politicians themselves control the police and prosecutions. There is now an unspoken agreement between parties that, if at all possible, elected legislators will not be prosecuted. So it is no surprise that dacoits want to become MLAs, and often do. Today, home ministers at the Centre and states control the police and prosecutions. But when home ministers have become part and parcel of a criminalized political system, the cannot be expected to tackle criminality. We need a new institution independent of home ministers for the purpose.

In the hawala case, public interest litigation in the Supreme Court forced a reluctant political class to act. The country owes a great debt to the public-spirited litigators –Vineet Narain, Rajinder Puri, Prashant Bhushan and Kamini Jaiswal. But public interest litigation is no substitute for impartial institutions. Besides, I have a sinking feeling that nothing will come of the hawala case. It is so easy to delay court cases indefinitely, so easy to ensure through deliberately weak prosecution that nobody gets resourceful person gets convicted, it beggars belief that top politicians will.

How do we return to the rule of law? I believe we need a constitutional amendment taking away the power of crime detection and prosecution from politicians, and giving this to an independent authority, which could be called a ‘justice commission’ As with the Election Commission members of the justice commission should be removable only by impeachment by Parliament—that will ensure their independence. The limits of the commission’s jurisdiction should be settled by public debate, but must include the investigation and prosecution of errant politicians.

The police have two quite distinct functions, maintaining public order and catching criminals. The maintenance of public order (including the checking of terrorism) is inherently a political task, and must be performed by home ministers. But crime detection (save for certain terrorist acts) should be independent of the political process— there is no reason for it to under political control. Handing over the entire task of crime detection to the justice commission may be too much. But there is no reason for the Central Bureau of Investigation to be under the Prime Minister, and this could certainly be handled by an independent body.

The problem we face is the corruption of the whole political system. Even when voters throw out a corrupt ruling party, the new government does not prosecute and convict the outgoing rogues. All major parties have been in power in one state or the other.

The political class will not take kindly to such a proposal. Yet the public mood is getting increasingly ugly. This, typically, is the setting in which new institutions come up to remedy the ills of the old. A constitutional amendment will come about if there is sufficient public pressure for it. It will not come about if we all cynically act as though political corruption is normal. We need to stay angry.

The hawala case should be a rallying point. As a first step, we must demand the appointment of an independent and respected special prosecutor who will be in charge of investigation and prosecution. The appointment of special prosecutors has been used repeatedly in USA to ensure that top politicians cannot interfere with the rule of law. A special prosecutor was set up in the Watergate case against President Richard Nixon, and again in the Iran gate case against President Ronald Reagan. Surely, the hawala case is as important as those two, and also merits a similar prosecutor.

The chances are that a special prosecutor will soon become a public hero, wildly popular with a voters. That will create irresistible pressures for institutionalising the post, whether it is called a justice commission or something else. That in turn will pave the way for a just, liberal society.

What do you think?