The Nation: Bureaucracy; Babu turns Supercop

An ordinance putting the Central Vigilance Commission atop CBI defeats its purpose -- to insulate anti-corruption agencies against interference.

I'll be judge, I'll be jury,' said cunning old Fury." Few fit the role of Fury in Alice In Wonderland better than the Indian bureaucrats. Last week, they mustered all the cunning at their command and secured the Cabinet's approval for an ordinance on the Central Vigilance Commission (CVC). The idea behind the ordinance was to put the two central investigative agencies -- the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) -- under the CVC and to immunise them against executive interference. However, after the ordinance was promulgated on August 25, it was discovered that the chief vigilance commissioner, the man who would be the superboss of the agencies, could only be chosen from the brotherhood of IAS and IPS officers.

The Supreme Court, in a judgement delivered on December 18 last year, had not only ordered that statutory status be given to the CVC but had said that its chief must be picked up from "a panel of outstanding civil servants and others with impeccable integrity ..." The clause, "and others", is significant as it expands the search beyond the civil services -- to judges, lawyers, or private investigators, casting the office in the mould similar to that of the "independent counsel" in the US. The apex court sought to "permanently insulate" the agencies against "extraneous" influence, exercised by bureaucrats and politicians.

OFFICIAL TOUCH

The 1997 Judgement
No prior permission is necessary to investigate cases of corruption against civil servants. Non-bureaucrats can get into CVC.

The Law Commission
CVC to expedite, or look into, delay or denial of prior permission. Non-bureaucrats are welcome to CVC.

The Ordinance
Prior permission continues, but monopolised by CVC which becomes the exclusive preserve of the Central services.

Yet it was the bureaucrats who hijacked the agenda of the Supreme Court. Following the ordinance, the CVC becomes a multi-member body comprising the chairperson, up to three vigilance commissioners and the personnel secretary to the Union Government, squeezed into the commission as its ex-officio member. The members must be drawn from either an all-India service or a Union civil service. That restricts the choice to the community of IAS and IPS officers. The tenures of office of the CVC chairman and other members have been fixed at four years and three years respectively, and the retiring age is 65. So the CVC becomes a post-retirement sanctuary for civil servants whose normal retirement age is 60.

What is worse, the commission is now given the power to become a bureaucratic monster with more discretionary authority than any other statutory organisation. The ordinance has vacuumed from the Supreme Court judgement a crucial order striking down the "Single Directive", requiring of the CBI prior permission or sanction of superior officers for investigation of officers of the rank of joint secretary and above. Executive immunity, which discriminates between offenders according to their status in social hierarchy, has got a new lease of life in the ordinance, with the difference that the CBI will now need the prior approval of the CVC. Says Anil Divan, the "friend of the court" in the case leading to the 1997 judgement: "The ordinance is of the bureaucracy, for the bureaucracy and by the bureaucracy."

The Supreme Court, anxious to weed out bureaucratic interference in investigation, had outlined a political control mechanism in the selection of personnel at the CVC. It required selection by a panel comprising Prime Minister Atal Bihari Vajpayee, Home Minister L.K. Advani and Leader of the Opposition Sharad Pawar. This selection was to take place from a list of names to be furnished by the cabinet secretary. The ordinance, however, has soft-pedalled the political leaders' supremacy in the matter of selection. It states that all appointments of CVC members shall be made after obtaining the "recommendation" of the political triumvirate. It means that the prime minister, home minister and the leader of the Opposition shall have a single name in each case, instead of a list of names. In other words, the bureaucracy reserves its power to make the first selection.

The apex court empowered the reconstituted CVC to carry out the responsibility of superintendence over the functioning of the CBI and the ed. It said that a committee of the CVC chief, the home secretary and the personnel secretary should submit a panel of IPS officers' names to the Appointments Committee of the Cabinet (ACC) for selection as CBI director. For selecting the enforcement director, the judgement wanted the addition of revenue secretary to the committee. However, the ordinance has craftily cut short the ACC's task. The committee of secretaries will, under the ordinance, not be obliged to present the ACC with a list of names. In selecting the CBI and ED chiefs, as with that of the CVC members, the civil servants have denied legislators -- represented by either the prime minister-home minister-leader of the Opposition trio or the cabinet committee -- the authority to choose one name from among many.

Till the promulgation of the ordinance, the CVC, as a non-statutory body, held merely an executive authority to investigate the corruption charges against Central Government officials. Now the commission shall be deemed to be a civil court with each of its proceedings having the status of a judicial proceeding within the meaning of the Indian Penal Code. It will have the power to summon any person and to examine him on oath. Its authority overrides that of the vigilance units attached to each department of the Union Government and each of the public corporations. The President of India may suspend the chief vigilance commissioner or any other member only on the ground of "misbehaviour" proved before the Supreme Court, on a reference made to it by the President. That makes the CVC members as secure from executive pushes as members of the Union Public Service Commission. The irony is that, despite the trappings of the job, the selection process remains confined to the close community of civil servants.

The Government had earlier set up a committee of ministers to frame the law relating to changes in line with the Supreme Court judgement. Its members -- Power Minister Rangarajan Kumaramangalam, Urban Affairs Minister Ram Jethmalani and Law Minister M. Thambidurai -- had referred the matter to the Law Commission, headed by Justice (retd) B.P. Jeevan Reddy, a former Supreme Court judge. The Law Commission had submitted, on August 13, a draft ordinance on the CVC. This draft held that:

In a cabinet meeting held after the Law Commission had submitted its report, the only draft that reportedly came up for consideration was the one prepared by a team of secretaries spearheaded by Personnel Secretary Arvind Verma, perhaps because the CBI comes under the Department of Personnel. The Cabinet, worried over the angry remarks of the Supreme Court against the transfer of Enforcement Director M.K. Bezbaruah and non-implementation of the 1997 judgement, promptly gave its nod to the only draft put before it, a handiwork of civil servants. The Law Commission draft, though short of being faithful to the apex court judgement in terms of "insulating" the investigative agencies (it allowed the Single Directive to continue), at least left room in the CVC for non-bureaucrats. Besides, by following the judgement in setting a minimum seniority mark for the enforcement director, it earmarked for the ED a larger respectability than what it currently enjoys. But it was the bureaucratic draft that carried the day.

Legal experts who were connected with the 1997 case think that the ordinance is not compatible with the judgement of the apex court. That can even be the subject for a review petition in the future, if the ordinance is not revised before the next session of Parliament in November. The most glaring shortcoming in it is that it tends to perpetuate the same ills that it is required to remove. It is a triumph of the bureaucracy over politicians.