The Nation: Law against Graft; Babus Concede

It was the day of the judiciary. Last Wednesday, as a constitution bench removed the last trace of arbitrariness from judicial appointment yet kept the executive firmly out of it, in an adjoining room of the Supreme Court a bench of three judges taught the overreaching executive a few hard lessons. Interestingly, both benches were led by Justice S.P. Bharucha.

The three-judge bench had twisted the arm of the babus powerfully enough to extract from the Government last week an amended version of the Central Vigilance Commission (CVC) Ordinance, promulgated on August 25. The ordinance had been triggered by an order of the Supreme Court last year to turn the CVC into a statutory body with full authority to superintend over the affairs of the CBI and the Enforcement Directorate (ED), the two anti-corruption agencies with power to prosecute under the Criminal Procedure Code. However, the August ordinance was hijacked by its bureaucratic framers, notably of the Department of Personnel. The CBI has long since been in the Personnel Department's clutches. The ordinance not only retained some of the obnoxious past features of anti-corruption investigation -- like immunity to public servants under the "single point directive" -- but intended the CVC to be an alluring post-retirement haven for IAS officers. For Personnel Secretary Arvind Verma, the ordinance's key author, nothing could be more self-serving. He had proposed himself as an ex-officio member.

CLEAN-UP ACT

CVC will comprise five members, including chairperson, instead of four.

No sanction is required to order a probe against public servants under the Prevention of Corruption Act, 1988.

Like civil servants, private sector employees too can be CVC members, but neither category will have a representation exceeding three.

Provision for ex-officio member removed, so executive has no mandatory control over CVC.

After getting a thorough dressing-down from the bench, the Government offered and got cleared from the Court, a revised CVC Ordinance with a slew of amendments. The "approval" for investigation into allegations of corruption, under Prevention of Corruption Act, 1988, will no longer be necessary. The CVC will have four members instead of three, as laid down in the August ordinance. The CVC members also need not be drawn from civil servants only; they can be recruited from corporations "established by or under any Central Act".

To Verma's discomfiture, the amended ordinance delinks the CVC from the Personnel Department as there is no provision for an ex-officio member. However, while making possible for personnel from the private corporate sector to serve the CVC as member, it sets a minimum ratio between civil servants and private sector managers. It says that not more than three persons (in the five-man CVC) should belong to either sector.

The amendment, clearly ordered by the Court, was greeted with cheers by the community of lawyers who have long since been campaigning for insulation of investigative agencies from extraneous, or political, pressure. Anil Divan, "friend of the court" in the Jain hawala case, whose prodding brought about the judicial scrutiny of the ordinance, said: "I am happy as the Government has conceded our point. Some people were offering a piece of legislation without application of mind."

Though the ordinance still has to pass the parliamentary test, N.Vittal, the central vigilance commissioner, promptly unrolled an anti-corruption strategy. He planned to put a ban on post-tender negotiations in the awarding of government and PSU contracts which he described, and rightly so, as the "fountainhead" of corruption. However, Vittal's power will soon be tested when the CBI and the ED get new chiefs in accordance with the ordinance. They will be selected by two official committees comprising, other than Vittal, the home and personnel secretaries and, in the case of ED, the revenue secretary too. So the CVC will have to find the personnel in charge of the investigative agencies in harmony with the bureaucracy. That may be quite tricky, considering civil servants' admitted anxiety to protect their turf.

However, even the present ordinance has given rise to many doubts. Urban Affairs Minister Ram Jethmalani, who is a member of the group of ministers (GOM) asked to oversee the draft, strongly opposes the move to make the CVC a multi-member body, instead of making it a one-man office, as suggested by the Supreme Court in its December 1997 judgement. Jethmalani's views are shared by some prominent lawyers, notably Kamini Jaiswal, secretary of the Committee for Judicial Accountability. She says that the plurality of members might turn the CVC into a politicised body in which only the "game of numbers" counts. The Supreme Court judgement last year wished the CVC to function as a legal entity cast in the mould of the US independent counsel. But, under the new dispensation, the CVC may become a supercop agency itself. Also there is no provision to include trained finance professionals or criminal lawyers because they are neither civil servants nor corporate employees. It is surely a step in the right direction, but the step could have been a little bigger.