Cabinet approves law to put CBI, ED under CVC, insulate 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.
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 nonstatutory 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:
the CVC chief, before his appointment, must sever his connections with
business if he had such connections, and cease to practise any profession if he
happened to be in a profession. It implies that the scope of choice for the
post was left open to those who are not civil servants;
the panel of prime minister, home minister and leader of the Opposition
would select CVCmembers from a list of names submitted by the executive;
the CVC should review the progress of all cases moved by the CBI for sanction
of prosecution of public servants which are pending with the competent
authorities, or have been refused; and,
the enforcement director should be chosen from the rank of additional
secretaries.
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 nonbureaucrats.
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.
