“But if everything depends on the pleasure of the prosecutor, who can enforce the law or not, then what is the use of the courts?” – Nekhludoff in Tolstoy’s The Awakening
This election cylce has been marked by increased civil society efforts to try to get voters to rid politics of corrupt and criminal politicians. The No Criminals campaign is a prime example of such efforts.
The problem though is not just that politicians with a criminal background keep getting voted into office or put on their party’s slate, but that prosecution of suspected criminality has often been lackluster by government authorities. Former Chief Justice Verma in an op-ed in today’s Indian Express takes on this issue of seeming political interference in the CBI’s work calling for increased scrutiny of the agency and a revisiting of its statutory role. Admitting that the decision he penned in the Hawala case, granting political insulation to the CBI, has not had the desired effect he pleads for a rethink on the CBI.Given the widespread perception of corruption and criminality in politics his concerns seem pressing and worth more attention than I’ve seen them been given in the media. It is not just the CBI to blame here – many of the criminal cases that do actually come against politicians languish in the courts for years with judges seemingly not particularly eager to stick their necks out and prioritize them.
The lack of independent prosecutors, and incentives for these prosecutors to bring cases, is also a problem not just in the CBI, but throughout the Indian government and its various prosecuting authorities (administrative and criminal). Students of the law often focus too much on reading cases without thinking about how cases are generated (or not generated) and the politics and economy behind this. I hope this op-ed by former Chief Justice Verma will refocus attention and energy on recalibrating the dynamics within these investigatory and prosecutorial agencies. Such a task is not without potential pitfalls. Looking at the recent experience in Bangladesh with the politically motivated targeting of politicians by its “independent” Anti-Corruption Commission (albeit during their recent Emergency) should give one some pause for reflection. The excerpt in the conversation before the Tolstoy passage I quoted above is:

“We used to think that the prosecuting officers – the court officers generally – are a kind of new, liberal men. And so they were at one time, but not now. The only thing that concerns these officers is to draw their salaries on the 20th of every month. Their principles begin and end with their desire to get more. They will arrest, try and convict anybody. I am always telling these court officers that I never look upon them without gratitude,” continued the lawyer, “because it is due to their kindness that I, you and all of us are not in jail. To deprive any one of us of all civil rights and send him to Siberia is the easiest thing imaginable.”

One could argue that having an under-zealous prosecutorial authority may be better than having an over-zealous one if you don’t feel you can control the motivations by which it acts. I hope though that India has reached a period where its democratic system is robust enough to both create and control a strong independent anti-corruption agency.