The Nation: M K Bezbaruah: Quick Rollback to Office

Bezbaruah's reinstatement following a court order shows that the BJP government is unable to cope with an instransigent and incompetent bureaucracy.

The Government of Atal Bihari Vajpayee has earned the reputation of being a somersault artiste. It turned halfway back on a special import duty within days of putting it in the budget proposals and swallowed back a threat to raise petrol prices.

Last week the Government beat its own record of "rolling back" its actions when it had to reappoint M.K. Bezbaruah as the enforcement director, 26 days after transferring him to the Delhi Government by a cabinet order. The reappointment of the high-profile Enforcement Directorate (ED) chief did not come about because of a change of heart, as in the case of the import duty rollback, but following a sharp rebuke from the Supreme Court.

The Government surely had a right to transfer an officer. But in exercising the right, it badly erred on explaining the motives and in proving that these were not arbitrary. The apex court found the Government's reasoning unconvincing enough to rap the knuckles of Solicitor-General of India Santosh Hegde, accusing his client, the Government, of "misleading the court". The three-judge bench comprising Justice S.P. Bharucha, Justice G.T. Nanavati and Justice B.N. Kirpal was so irked by the Government's slipshod defence of Bezbaruah's transfer that it did not let off Hegde when he said that the Centre had decided to revoke the transfer order. The judges forced the solicitor-general to file a statement in this regard.

VERDICT AFTERWARDS

ITC: Over $100m FERA violation case against tobacco major ITC in 1996 has not led to conviction.
Shaw Wallace: FERA violation cases against liquor baron Manu Chhabria hanging fire as no attempt has been made to extradite him.
Chandraswami: Bezbaruah inherited the FERA case against the godman, but not an inch of progress so far.
Prabhakar Rao: The main accused in the Rs 133 crore urea scam has been let off the hook for lack of evidence.

The Government deserved the judicial reprimand for the convoluted reasonings behind Bezbaruah's transfer, submitted in an affidavit before the court. The affidavit was given by a director in the Department of Personnel which is under the direct charge of the prime minister. According to the Personnel Department's explanation, the need to transfer Bezbaruah arose after July 21, 1998, when, "in pursuance of the directions of this Hon'ble Court", the Government decided to upgrade the post of the enforcement director to the level of special secretary. This is exactly where the bureaucracy had led the Prime Minister's Office up the garden path.

If only the Personnel Department had followed the court's direction, it would have found replacement for Bezbaruah in an official of the required rank from the 400-odd officials serving the Government. In fact, on the advice of legal experts Vajpayee had directed the Personnel Department and the Cabinet Secretariat to temporarily hand over the charge of the ED to Bhure Lal, secretary to the Central Vigilance Commission (CVC), who made headlines in the '80s in the same post. Lal, who is currently an additional secretary-rank officer, fulfils the Supreme Court-ordained requirement for the job. In addition, it would have met the court's other directive that the investigative agencies should be under the superintendence of the CVC. But the prime minister's move was sabotaged by senior officers, perhaps because Lal had acquired in his earlier stint an uncompromising image. His appointment would have brought back to life some of the "dead" prosecutions involving the business-bureaucrat nexus.

In its judgement of December 18 last year, the Supreme Court directed the upgradation of the post to the level of additional secretary, thus disqualifying Bezbaruah whose present rank is that of a joint secretary, a notch below the eligibility mark. However, this direction did not come in isolation. It also enjoined upon the Government the need to first make the post of the central vigilance commissioner statutory and then to leave the task of selecting the enforcement director to a panel comprising the CVC, the home secretary and the revenue secretary. The July 21 decision to "upgrade" the post had therefore put the cart before the horse because neither was the CVC a statutory authority then nor was Bezbaruah's successor selected by the panel outlined by the court.

The affidavit took a further beating for naively taking liberties with official documents that had been presented earlier before the court, for tailoring facts to suit its argument. Before delivering its judgement of December 18 on restructuring investigative agencies like the CBI and the ED, the court had obtained the opinion of an Independent Review Committee (IRC). Following Bezbaruah's transfer, Anil Divan, "friend of the court" in a related case, submitted that the transfer order was not even consistent with the IRC's recommendation.

While attempting to rebut this allegation, the affidavit said that the Government had steered close enough to the recommendations of the IRC which had cautioned against "external pressure" on the investigative agencies but had never put the transfer of personnel in charge of investigation out of bounds for the executive. The judges were naturally aghast after reading these lines, for the IRC recommendation clearly states that for "premature transfer" of the enforcement director, the "selection committee headed by the central vigilance commissioner" must make suitable recommendations to the Appointments Committee of the Cabinet. It is this distortion of facts that drew the judges' remark that the Government was misleading the court.

The initiative to transfer Bezbaruah came from the Home Ministry under L.K. Advani, the controlling authority for the Arunachal Pradesh, Goa, Mizoram and Union Territories cadre of IAS officers to which he belongs. The affidavit submitted that the Delhi Government had requested the Centre to release Bezbaruah on August 11, and the Home Ministry complied with the request post haste on August 13. It is obvious that the bureaucracy took both Vajpayee and Advani for a ride, keeping them in the dark about the complex motivations and illegalities behind a seemingly innocent executive decision to transfer an officer.

Bezbaruah, occasionally projected by the media as a man of steel, however, is far from extraordinary in his ED tenure. In his two years and nine months as ED chief, longer than any of his predecessors, he could not close any of the cases he had started -- be it the case of ITC, Chandraswami or Shaw Wallace -- but has hogged the limelight by charging full-tilt at Ashok Jain, a high-profile media baron. And that too without framing charges. Bezbaruah's disappearance from the ED would not have created a ripple if bureaucrats had not messed it up.