AS things stand now, the good news for the Bharatiya Janata Party is that whatever anti-corruption credentials it had have been shredded. The bad news is that there could be more humiliation on the way. Meanwhile, the reinstatement of the Director of the Enforcement Directorate (E.D.), M.K. Bezboruah, just 26 days after he was transferred through a Cabinet order, has not provided answers to any of the questions raised about the sordid enterprise undertaken to remove him from the E.D. The finding of the Supreme Court that the Union Government was attempting to "mislead the court" opens up the issue of just what the BJP-led Government's motives were. The BJP's claims that the debacle was the outcome of bureaucratic intrigue hold little credibility. As the truth begins to emerge in the coming months, the Government will have to answer not only an irate Supreme Court, but also the country's voters.
Perhaps the only important fact that is known about the decision to transfer Bezboruah is that the Government has not made public any plausible reason for it. On August 11, Delhi Chief Minister Sahib Singh Verma wrote to the Central Government requesting that Bezboruah, whom he described as an upright officer, be made available to supervise the Union Territory's Mass Rapid Transit System project. The Chief Minister's sudden appreciation of Bezboruah's integrity was surprising, for Bezboruah had been shunted out of his job in the New Delhi Government on Verma's written request in 1995. As the National Capital Territory's Education Minister, Verma had spent much of his time in office engaged in a battle with Bezboruah on the question of appointment of teachers. Unsurprisingly, few people believe that Verma underwent a sudden change of heart. The Union Government's subsequent conduct was even more mystifying.
When the Supreme Court, which was hearing the Indian Bank scam case, was informed of the circumstances under which Bezboruah was transferred, it did not immediately order his restoration to office. Instead, Justice Bharucha demanded to know: "What occasioned this transfer at this moment?"
All that remained for the Government to do was answer that question. From subsequent events, it is clear that it did not have an explanation it could make public. In a counter-affidavit it filed before the Supreme Court (it was signed by a director of the Department of Personnel, which is under the charge of the Prime Minister), the Government resorted to half-truths and outright falsehood.
IT is possible that whoever drafted the counter-affidavit was aware that the Government was skating on thin ice, for it then proceeded to make even more outrageously untrue assertions. The counter-affidavit claimed on page 6 that the Independent Review Committee (IRC) Report, which is the basis for the supervisory regime set up through the Jain hawala orders, did not have transfers as one of its subjects. "It is submitted," the counter-affidavit reads, "that the words 'transfer of persons, etc.' do not form part of the terms of the reference of the IRC issued by the government." It quotes the terms of reference as calling for ensuring that "offences alleged to have been committed by any person, particularly those in positions of higher authority, are registered, investigated and prosecuted fairly and expeditiously, ensuring against, inter alia, external pressure, arbitrary withdrawals and ensuring adequate protection to the functionaries concerned to effectively discharge their duties and responsibilities."
Put simply, the Government claimed that the Supreme Court itself had placed the power to transfer officials, as opposed to the responsibility to ensure that they are not pressured or withdrawn, outside the Jain hawala framework. But this claim rested on the falsification of the court's order. The original terms of reference quoted in the Jain hawala judgment had made it clear that officials had to be protected "against, inter alia, external pressure, arbitrary withdrawals or transfers of personnel etc." These last five words had disappeared when the IRC's terms of reference were reproduced in the Government's counter-affidavit.
Who was the person who prepared the Government's counter-affidavit? The BJP has let it be known that the Prime Minister is profoundly embarrassed by the events that occurred in the apex court, and has indicated that a number of heads would roll. Attorney-General Soli Sorabjee, who has been assigned the task of finding out who was responsible for preparing the counter-affidavit, will submit his findings to Vajpayee. Personnel Secretary Arvind Verma and Establishment Officer M. Rajendran Nair are believed to be the targets of Sorabjee's inquisition. Meanwhile, the Law Ministry and the Personnel Ministry have been busy shielding themselves.
However, the person who was responsible for preparing the counter-affidavit is unlikely to have acted out of personal enterprise. The counter-affidavit had to distort the truth for the simple reason that the truth cannot be made public. It is evident that the circumstances leading to Bezboruah's transfer were, at their core, political. While the bureaucrats who were responsible for preparing the counter-affidavit may have had their own reasons to collaborate with the Government, the decision to remove Bezboruah appears to be a BJP-led enterprise. The specific political compulsions behind its decision are not clear, except the fact that the E.D. was investigating powerful figures such as Ashok Jain and Jayalalitha, and had antagonised senior BJP leaders, such as Urban Development Minister Ram Jethmalani, during the course of its work.
PERHAPS the most serious consequence of the BJP's efforts to provide some sort of legal fig leaf to cover up its campaign against Bezboruah was the controversial Ordinance it pushed through to grant statutory status to the CVC. Nagarajan Vittal's appointment as the statutory Central Vigilance Commi-ssioner (CVCr) has done nothing to inspire confidence in the supervisory structure that is now in place for the Central Bureau of Investigation (CBI) and the Enforcement Directorate. This Ordinance has become the subject of bitter conflict within the Government itself, with Jethmalani charging the bureaucrats with having engineered Cabinet approval for a draft that did not have the consent of the Ministers responsible for framing it. Bureaucrats such as Prime Minister's Principal Secretary Brajesh Mishra have, however, publicly repudiated his charges.
The CVC Ordinance has succeeded in subverting many of the explicit instructions given by the Supreme Court in the Jain hawala order. The infamous "single directive", explicitly struck down by the court, has reappeared in the Ordinance. More critically, the CVCr himself will have to be chosen from the ranks of civil servants. Although the Law Commission and the committee of Ministers responsible for the Ordinance agreed with the Supreme Court recommendation that "civil servants of impeccable integrity and others" be considered for the post, the last two words of this formulation, "and others", were not found in the Ordinance. Finally, there is a dispute over whether the CVC should be a multi-member body or a single-member body.
What is at stake when the Supreme Court hears later this month the litigation filed on the Ordinance is the future of India's most important investigative agencies investigating fraud and corruption in high places.
POLITICAL response to the issue has been sharp. The strongest attacks came from the Left parties, which alone have not been subjects of CBI or E.D. inquiries for corruption in recent years. Communist Party of India (Marxist) leader Sitaram Yechury welcomed the apex court's intervention in Bezboruah's transfer, saying that it had "set right a wrong". He pointed out that the transfer had clearly been ordered with mala fide intent. The Samajwadi Party said that the court had helped grant justice to Bezboruah. Congress(I) spokesperson Ajit Jogi attacked the BJP's handling of the situation, but in milder terms, charging it with violation of "civil service norms". The Congress(I)'s ambivalent response is, however, unlikely to provide comfort to the BJP. For one, the party's credibility has already been eroded severely by the Supreme Court's strictures. The prima facie evidence that the thrust of the Jain hawala judgment has been ignored in the CVC Ordinance could well invite even more embarrassing strictures.
The BJP appears to be bent on provoking further confrontation with the courts. On September 14, Brajesh Mishra told Eenadu Television that Bezboruah's reinstatement was "temporary", and that the Government would soon select a "higher-level officer" in consultation with the CVCr. That this Government cares little either for law or for legal scruples is clear. The only question that remains is why.
