A scheme of appointments

Print edition : August 01, 1998

A selective implementation of the Supreme Court order on the grant of autonomy to Central investigative agencies is being contemplated to undermine certain pending cases.

IS there a move to implement partially the Supreme Court judgment in the Jain hawala case, in the course of which a three-member Bench headed by the then Chief Justice, Justice J.S. Verma, laid down detailed guidelines for granting autonomy to the Central Government's investigative agencies? If so, would not such a move be tantamount to short-circuiting the procedure prescribed by the apex court and, in the process, jeopardising the very autonomy of the agencies which the move was supposed to strengthen?

There are indications that Union Law Minister M. Thambi Durai and Minister of State for Revenue and Banking, R. Janarthanan, both representing the All India Anna Dravida Munnetra Kazhagam (AIADMK) in the Bharatiya Janata Party-led coalition Government, are exploring the possibility of doing just that to serve a certain immediate, limited purpose. The Home Ministry has referred the judgment to the Law Commission to draw up a draft law for its implementation.

When the Supreme Court gave its landmark judgment in the Jain hawala case, it also gave detailed directions for strengthening the autonomy of the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI) and the Enforcement Directorate (E.D.). The ruling was necessitated by the observed increase in corruption in high places, especially among politicians who occupied high office, which the agencies found difficult to investigate since they functioned under the control of the very functionaries against whom they had to launch investigative and prosecution proceedings.

The court ruled that the CVC be given statutory status and that the Central Vigilance Commissioner (CVCr) be selected from among a panel of outstanding civil servants with impeccable integrity, the list being furnished by the Cabinet Secretary. The selection was to be made jointly by the Prime Minister, the Home Minister and the Leader of the Opposition. A CVCr so selected shall then preside over the panels which would select the CBI and E.D. chiefs. For good measure, the judgment had added that the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The procedure for the selection of the CBI and E.D. chiefs by the CVCr was also prescribed by the apex court.

However, according to a Cabinet source, the present Government (as was its predecessor) is reluctant to surrender the control of the Prime Minister's Office (PMO) over the CBI to another agency. Especially since the days of Indira Gandhi, the CBI has emerged as a powerful weapon in the hands of the ruling party, Bofors being just one example of how that weapon has been used.

The United Front Government made vague noises of commitment when the Supreme Court pronounced directions to grant autonomy to the investigative agencies. Yet it did not take any steps to implement the judgment. But then, it had a fig leaf for its inactivity in its lame duck status.

Four months into power, the BJP-led Government's attitude to the implementation of the judgment is no less ambivalent and apparently without any justification other than its preoccupation with its own survival. Finally, on June 16, almost five months after the Supreme Court ordered the Government to implement its directions "immediately", the BJP-led Government entrusted to the Law Commission the task of drawing up the necessary legislation. Simultaneously, under pressure from the AIADMK, the BJP's alliance partner, the Attorney-General's views were sought on the feasibility of implementing the order partially as an interim measure.

The Law Ministry is learnt to be exploring the possibility of asking S.V. Giri, the incumbent CVCr, to appoint new chiefs for the CBI and the E.D. Giri had resigned a few weeks ago, presumably to facilitate the implementation of the apex court order. The Government requested him to continue in office until it appointed a new CVCr in accordance with the procedure laid down by the apex court.

Therefore, as of now, Giri's status is that of an officiating CVCr. This being the case, will it be proper for the Government to ask Giri to appoint the new CBI and E.D. chiefs even as an interim measure, more so when there are rumours that Giri may be reappointed CVCr as and when the Government implements the apex court order?

THE urgency for this interim arrangement seems to stem from the various cases against Jayalalitha's close associates on charges of violation of the Foreign Exchange Regulations Act (FERA) which are being actively pursued by the E.D. The CBI is also actively pursuing one case of corruption against Jayalalitha but this case has not yet reached a critical stage as in the matter of the FERA cases. The removal of Trinath Mishra, the incumbent CBI Director who has proved to be much less tractable than the BJP Government might have wanted him to be, will not inconvenience the Government. And the removal of M.K. Bezboruah, the E.D. chief, is perceived to be useful in undermining the FERA cases against persons close to the AIADMK supremo. Herein lies the reason for the move to implement the Supreme Court order selectively and immediately.

Meanwhile, the Law Commission, to which the judgment has been referred, is preparing a bill very much on the lines prescribed by the Supreme Court. Justice B.P. Jeevan Reddy, the Chairman of the Commission, told Frontline that the bill would not deviate in any sense from the apex court's recommendations but, if possible, improve upon it. Although the matter was referred to the Commission only by mid-June, the bill will be ready in a few days. However, the Law Commission's recommendations are not binding on the Government and therefore could be disregarded once the immediate purpose has been accomplished, namely, the removal of the two independent chiefs of the not-so-independent investigative agencies.

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