Epstein Files Transparency Act

The Epstein Files Transparency Act inter alia requires the attorney general of the US to release all documents relating to Epstein in the possession of the Department of Justice of the US government commonly referred to as Epstein files. India has also got affected of it because the Epstein Files Transparency Act indeed has extraterritorial jurisdiction even over foreign dignitaries over riding their right to privacy.

(b) Prohibited Grounds for Withholding.—(1) No record shall be withheld, delayed, or redacted on the basis of embarrassment, reputational harm, or political sensitivity, including to any government official, public figure, or foreign dignitary.

The Epstein Files Transparency Act per se does not mention any reason for the release of the Epstein files. However, from the circumstances leading to the passing of the Epstein Files Transparency Act as an Indian equivalent of a private member’s bill, it can be assumed that the Epstein Files Transparency Act recognizes the implicit need of the American society to transparency with respect to the functioning of the power elite in the US and elsewhere.

Epstein Files and Modi

The Indian prime minister’s name has also surfaced in the Epstein files (India’s Modi’s related documents) in connection with his visit to Israel in July 2017 and in reference to Anil Ambani, a private individual. The Epstein files and Modi connection is mostly in reference to his private affairs except for the reference to the Israel visit. The references are indeed very embarrassing and also defamatory for the private individual going by the name of Narendra Modi.

In the Epstein files, Modi has been equated to a complying individual, who can easily be influenced into working for the interest of the US president while sacrificing his professional duties as the prime minister of India. Further, his portrayal is such that it has led to many memes on the internet showing him dancing in front of Trump and Netanyahu. Of course, such a conduct is not expected from any foreign dignitary, whosoever.

Modi’s linkages to Ambani, as shown in the Epstein files, also portray Modi as a corrupt individual using the agency of a private individual, with or without using his high public office to his personal benefit or to the benefit of the private individual. It should be noted that the furtive use of the agency of a private individual itself, even if for the benefit of the public, is a corrupt practice disqualifying Modi Modi from occupying the high office of the prime minister of India.

Legal Options for Modi

Modi hardly has any legal option against infringement of his privacy. In the US, he can’t initiate any proceedings without challenging the Epstein Files Transparency Act itself because the Act explicitly makes a provision for the infringement of his privacy in American public interest.

In India, he can initiate criminal, writ or civil suit proceedings for the infringement of his privacy by the US state, but the US state enjoys sovereign immunity. He can’t file a criminal complaint or a civil suit against the US state without the consent of the central government, which can be granted only in very limited exceptions under law.

He can indeed invoke the writ jurisdiction of the constitutional courts, but these are equity jurisdictions, and he will have to prove his bonafide in reference to the Epstein files to invoke these jurisdictions. Furthermore, he will also have to make the Indian state as a proper party in the writ petition, which he can’t do while occupying the office of the prime minister of India.

As far as international law is concerned, an individual can indirectly initiate criminal investigation through the office of the prosecutor of the International Criminal Court (ICC) but only against individuals (in this case the attorney general of the US) in the state where the crime has been committed, given the state has also accepted the jurisdiction of the ICC. The US is not a member of the ICC and has not accepted its jurisdiction.

The Poor Indian Diplomacy

To be frank, it is simply stupid to discuss the legal options of Modi. However, I have discussed them above to bring home a point. Diplomacy of a state is not subservient to the offices occupied by individuals in the state. Just because there is defamation of an individual occupying the high office in a state doesn’t mean it is an attack on the office itself.

Rather, if truth is a likely defense with respect to the defamation of the individual, it’s the internal affairs department, not the external affairs department, that has a role to play. Unless the internal affairs department has given a clean chit to the individual after proper investigation, I don’t see how and why a state should put its own prestige at stake by defending the individual in press releases by the external affairs department.

Precisely the opposite has happened in India. The Ministry of External Affairs of India has released an official statement in connection with the Epstein files, where they have out rightly rejected the allusions in the referred email in the Epstein files as “trashy ruminations” by a convicted criminal. By making this statement, they have upheld the American legal system, where Epstein was convicted, and the American legal system includes the Act infringing the privacy of foreign dignitaries. In other words, they have accepted the defamation of the prime minister of India by the office of the attorney general of the US.

Secondly and more importantly, they have given clean chit to Modi without jurisdiction. What business did Ministry of External Affairs had commenting on the private affairs of an individual. Was Epstein an official diplomatic channel of the US state. Did he act on behalf of the US state when he wrote that email. Since when Ministry of External Affairs started commenting on the statements of “convicted criminals”.

The Indian diplomacy is becoming sillier by the day. Of course, the Indian diplomats have become non-thinking robots acting on the commands of the political leadership. The political leadership is not the representative of the state. It’s the diplomats who represent the state to the world. The political leadership can only dance and sing, literally. The diplomats have to negotiate. If they will start practicing diplomacy through the dance and song of their political leadership, either they will become donkeys or they will become Hardip Singh Puris.

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