The power of one

What do you do when you smell something seriously fishy in the manner in which your housing society is being run?u00a0 The most reasonable and obvious course of action would be to complain to the regulatory authority so it could, if deemed necessary, exercise its statutory powers to probe the alleged wrongdoing.u00a0

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Shekhar Hattangadi

But the Bombay High Court has a strange take on this.u00a0 It would have you run from door to door and drum up support for your complaint from at least one-third of your fellow society members before you can even dare to blow the whistle on the managing committee. In one of its more astonishing judgments, Justice Anoop V.Mohta has quashed an inquiry undertaken by the Registrar into a society's affairs on the ground that it was prompted by a complaint from a single member.

Mohta's decision falters on two counts. First, even a plain reading of the relevant section of the Maharashtra Cooperative Societies Act, 1960 reveals that the judgment has grossly misinterpreted it.u00a0 Sec 83(1) says: "The Registrar may of his own motion, and shall on the application of one-third of the members of a society, himself or by a person duly authorized by him in writing in this behalf, hold an inquiry into the constitution, working and financial conditions of a society."

Clearly, the Registrar would find himself under a legal obligation to initiate an inquiry in the face of a demand from one-third of the society's members. But, equally clearly, he also has unequivocal discretion in this matter in the absence of the quantitatively mandated demand. To argue, as the judgment does, that such an initiative does not amount to a legitimate "suo motu" (Latin for "on one's own") action on the part of the Registrar if alerted by a sole complainant, is to miss the point entirely and, worse, to impose an unwarranted barrier on the Registrar's executive authority.u00a0

How realistic or practicable is it to expect, for instance, that the Registrar's office--which covers literally thousands of housing societies across the state--should sniff out irregularities entirely on its own without the benefit of leads from aggrieved informers?u00a0 Are its officials endowed with superhuman powers of extra-sensory perception for this purpose?u00a0 Judicial history--not least in India--is replete with examples of courts taking suo motu notice of the slightest of cues: Sunil Batra v Delhi Administration (1978), which held against the inhuman treatment of incarcerated criminals, grew out of a solitary postcard addressed to the Supreme Court by a jailed convict!

Which brings us to the larger implication of the Mohta judgment for contemporary India's fledgling war against corruption. By insisting, in effect, on popular support as a pre-requisite for inquiring into a potential scam or even an irregularity, the judgment overlooks the sad fact that whistle-blowers don't come in hordes, that they are exceptions plowing lone furrows against the grain of indifference and apathy from colleagues and neighbours, that they often brave great personal hazards in their quest for justice and fair play, and--most importantly--that it is the sustained moral force and power of one individual that usually triggers a broader movement and ultimately brings the crooks to book. We need to nurture and encourage such mavericks--whatever their media profile--in the interest of transparency and good governance, not suppress their nascent efforts with dubious legal impediments.

Take Ralph Nader who in the 1960s single-handedly challenged the callous bigwigs of the U.S. automobile industry to ensure passenger safety--a challenge that later snowballed into a robust awareness of consumer rights in other fields.u00a0 Take Erin Brokovich and Karen Silkwood--two feisty American women who took up the cudgels for victims of industrial pollution.u00a0 Or take our own activist-lawyer M.C.Mehta whose persistent efforts against rampant environmental degradation compelled the government to adopt stringent anti-pollution measures.u00a0Not to forget a shy elderly ex-army driver who laid his life on the line earlier this year at New Delhi's Jantar Mantar, and forced a countrywide rethink on an anti-corruption law.

Shekhar Hattangadi is a lawyer, law professor and freelance journalist.