Undermining institutions

The Narendra Modi government’s interference in the functioning of the CBI seems to be part of a larger pattern of undermining institutions of governance that safeguard the country’s democracy.

Published : Nov 08, 2018 12:30 IST

 CBI Director Alok Verma. He has challenged the decision to divest him of all charges.

CBI Director Alok Verma. He has challenged the decision to divest him of all charges.

“officialese has an extraordinary knack of often reflecting the real story behind complicated or murky developments in government or the larger institutional establishment. In many ways, they become manifestations of political and bureaucratic Freudian slips, which in turn are pointers to significant trends of the present or the future.” This observation by a retired senior intelligence officer, who worked with the Union Home Ministry and police departments of various States in a career spanning over two and a half decades, referred to the spate of official communication from diverse sections of the Union government in the second half of October relating to the government’s tussles with the Central Bureau of Investigation (CBI) and the Reserve Bank of India (RBI).

The retired intelligence officer drew attention to the phrase “in the public interest”: “This phrase was repeatedly invoked in the official communications while transferring as many as 14 CBI officers in the wake of the shunting out of the organisation’s two topmost officers, Director Alok Verma and Special Director Rakesh Asthana, who were sent on compulsory leave on October 24. Even as the debate on this rather strange reason for the transfers was on, the Finance Ministry invoked the ‘public interest’ in its press release on the RBI imbroglio. The Ministry affirmed that it would be ‘guided by public interest and the requirements of the Indian economy’.”

The former officer pointed out that invoking the “public interest” had multiple implications. “It is at once a formal and absolute assertion of authority by the political leadership of the government as well as a nuanced warning to all autonomous and semi-autonomous bodies and institutions of governance to toe the line without a murmur. What it states is unambiguous. Obey, or else we can draw the ire of the public against you. Look at the background in which such a threat is being made. The country’s premier investigation agency has been racked by an unprecedented and open tussle between its number one and two and the government has had to intervene in a ludicrous manner through a blatantly extralegal midnight operation. The sort of demoralisation this has created is evident, and the government is seeking to brazen it out by holding out the ‘public interest’ threat. In the case of the Finance Ministry, it also involves the not-so-veiled suggestion that the government can bring Section 7 of the RBI Act, which endows the Central government with the powers to give such directions to the RBI that it considers necessary in the public interest. This is particularly relevant in a context where the central bank has already expressed reluctance to follow some directions of the Finance Ministry. The expression ‘public interest’ came repeatedly into play during the 1975-77 Emergency period, especially when the programmes led by Sanjay Gandhi, Youth Congress leader and son of Prime Minister Indira Gandhi, such as mass vasectomy operations as part of the special family planning drive, were being advanced aggressively. Indeed, the unstated political message that is evident in the repeated use of the expression in the current context certainly points towards an Emergency-like situation.”

The perception of a parallel with the Emergency finds echoes among different segments of society, including the politically neutral bureaucracy. Opposition leaders, including those of the Congress and the Telugu Desam Party (TDP), have been drawing attention to the systematic dismantling and subjugation of autonomous and semi-autonomous institutions. After a meeting with Congress president Rahul Gandhi on October 31, TDP president N. Chandrababu Naidu pointed out that the Narendra Modi government was demolishing all institutions including the RBI, the CBI, the Enforcement Directorate (E.D.), the Income Tax Department and even the Supreme Court. “We are trying to rally all political parties against this systematic demolition of institutions. I have been in politics for the last 40 years. Never have I witnessed this type of administration,” Chandrababu Naidu said. A large number of social activists working in fields related to administrative accountability and human rights perceive the current developments in the CBI and the RBI as clear signs of an authoritarian regime tightening its grip.

Social activist and Swaraj India president Prashant Bhushan pointed out that as during the authoritarian regime in the 1975-77 period, the current Prime Minister and his political and corporate associates were trying to cover up their corruption and wrongdoing by subjugating premier institutions. “The convulsions in the CBI are clearly a fallout of the effort to cover up the role of the Prime Minister and his corporate associate Anil Ambani in the Rafale deal,” he said.

A few weeks before Verma and Asthana were sent on leave and other CBI officers transferred, Verma had received a criminal complaint over the purchase of 36 Rafale aircraft. Prashant Bhushan and former National Democratic Alliance Ministers Arun Shourie and Yashwant Sinha met Verma at the CBI headquarters to file a complaint seeking an investigation into the Rafale deal. They called upon the CBI to register a first investigation report (FIR) against Prime Minister Narendra Modi and former Defence Minister Manohar Parrikar under the Prevention of Corruption Act. They also asked the agency to file FIRS against Dassault Aviation and its CEO, Eric Trappier, for abetment of offences, and against Anil Ambani for conspiring with the Prime Minister to receive undue advantage or pecuniary gain against the public interest.

Evidently, the political leadership of the government was not happy with this, especially with the Director’s meeting with the three complainants. Members of the government were quoted as saying that it was unusual for CBI chiefs to meet politicians. Responding to such reports, Shourie told the media: “There has been no meeting before or after. Prashant’s office rang up CBI director office to fix an appointment for a meeting and to submit the complaint (on Rafale). We did this during office hours and not in middle of the night. Procedure says within a week the complaint should be acted into FIR. We still do not know what happened to our complaint after three weeks.”

It is not clear whether the complaint was in cold storage or whether Verma was proceeding on it. There are conflicting reports on this, from within the CBI and outside. However, Verma’s meeting with Bhushan, Shourie and Sinha was followed by a flurry of departmental action involving Verma and Asthana, who is considered close to the Prime Minister and BJP president Amit Shah. The jousting gathered momentum through the third week of October, finally leading to the October 24 midnight operation directed by the Prime Minister’s Office (see box on the Verma-Asthana tussle). As it happened, on October 24 Verma was removed from his post and Asthana was divested of all responsibilities and sent on leave. This marked an unprecedented situation in India’s premier investigative agency where the two most senior officers were forced out of active service, even if for a short period. Undoubtedly, this was a moment of shame for the organisation. At the level of organisational rules and laws, Verma’s tenure is protected since he was chosen by a collegium and was only pursuing what he was duty-bound to do, including the probing of charges against one of his officials. On the other hand, Asthana is considered close to the PMO and perceived to be receiving unwarranted political protection against prosecution.

Finance Minister Arun Jaitley claimed that the government’s intervention was “absolutely essential” to maintain the integrity of the CBI. He added that the organisation was facing an “extraordinary situation” which would be probed by an independent special investigation team (SIT). “To maintain the institutional integrity of the CBI and in the interest of fairness, purely as an interim measure, they [Verma and Asthana] will sit out by going on leave. An SIT not functioning under either of these officers will investigate. This is in accordance with the highest standards of fairness,” he said at a press conference following a Cabinet meeting. Indeed, the government is trying its utmost to present itself as a neutral and fair player.

However, Bhushan, Shourie and Sinha say that the very conflict between Verma and Asthana was instigated by the Prime Minister and his associates. The transfers implemented by interim CBI Director M. Nageshwar Rao, who replaced Verma, seem to favour officers considered close to Asthana, which indicates the tilt in the establishment. Officers considered close to Verma have apparently been transferred to inconsequential positions.

Speaking to a TV channel, Shourie said: “There is no PMO. Only the PM. No office. Every one else is like a clerk or a worker, even if [they are] senior bureaucrats. This government creates a rumour, falsehood, and lets it spread on social media. Chasing or denying that clouds the main issue. The main issue is that they [government] were prostituting via these officers and this director [Verma] was trying to stop it.”

Interestingly, the BJP leader Subramanian Swamy has also come out in defence of Verma, describing him as an upright officer and calling Asthana corrupt. He alleged that the “gang of four”, including Finance Secretary Hasmukh Adhia, who was hand-picked by Modi and brought from Gujarat, and Asthana, was trying to save former Finance Minister P. Chidambaram. Swamy’s position, too, has generated some churning within the BJP.

The legal procedures on the application moved by Verma in the Supreme Court against the “patently illegal” move of replacing him are expected to contribute to the political churning. The apex court took cognisance of his plea and, in an interim order passed on October 26, ordered the Central Vigilance Commission to complete its probe into Verma within two weeks. The probe, which is to be completed before the hearing on November 12, will be conducted under the supervision of a former Supreme Court judge, Justice A.K. Patnaik.

Clearly, much rests on these court proceedings as far as the CBI situation is concerned. But the larger question is of institutional sabotage because there seems to be a pattern in the way almost all independent instruments of governance and democracy are being undermined. Obviously, the solution to this problem cannot emerge from the judiciary, whatever the scale and reach of its pronouncements. The solution can only be a political one. Indeed, there seems to be a growing awareness among political parties and social activists about it, though there is no well-defined strategy to counter what is happening.

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