Government in a spot

Print edition : August 15, 1998

The BJP-led Government's attempt to implement selectively the Supreme Court order on the grant of autonomy to Central investigative agencies has apparently misfired.

IN the battle of wits between the Union Government and the Central Vigilance Commission (CVC) over the issue of granting autonomy to the Central investigative agencies, the latter appears to be in a position of advantage, at least for now. Central Vigilance Commissioner (CVCr) S.V. Giri refused to chair the two panels for the selection of the new chiefs of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (E.D.) on the plea that he had no moral authority to do so, not having been appointed in accordance with the procedure laid down by the Supreme Court in the Jain hawala judgment in December 1997. Although Giri had submitted his resignation twice before - once in January 1998, soon after the apex court passed its order, and again in May - it is only now, after his third letter indicating his refusal to chair the two selection panels, that the Government has agreed to relieve him, with effect from August 9.

In a letter addressed to the Cabinet Secretary in the last week of July, Giri maintained that although the Attorney-General had expressed the opinion that it would be legal for the Government to ask the CVCr to select the chiefs of the CBI and the E.D., in his own view the issue was not strictly a legal one. He said in the letter that the Supreme Court had specified that the new CVCr would have to be appointed as per the procedure it has laid down "and that it has to be done immediately." "Since there is no clause protecting the existing arrangements," Giri said, "the legality of my continuance as the CVCr is open to question." He maintained that "the other responsibilities of the office of the CVCr as envisaged by the court can perhaps be sustained only when this requirement is met." Moreover, he said that he had tendered his resignation as early as mid-May and he was now in the last few days of his notice period. "It is my feeling that it would not be in keeping with the dignity of this high office if matters like the selection of the heads of most important investigating agencies are seen as being rushed through on the eve of someone demitting office," Giri said in his letter.

Earlier, when the Government sought Attorney-General Soli Sorabjee's opinion on the legality of asking the CVCr to select the chiefs of the CBI and the E.D. (the latter position has now been upgraded to the rank of Director-General), Soli Sorabjee is learnt to have cited the "doctrine of necessity" to endorse such a move. How the "doctrine of necessity" can be invoked in the present circumstance when there is actually no necessity to rush through the selection of the two chiefs remains unanswered. After all, the post in neither the CBI nor the E.D. is vacant. Neither incumbent has been accused of deficiency or dereliction in the discharge of his duties. If a case is sought to be made out in the case of the E.D. chief on the plea that the post has been upgraded and hence has to be filled immediately, the court is bound to take cognisance of the fact that the upgradation itself was done in keeping with its directives. If selection to the upgraded post is not done by a duly appointed CVCr as per the directives of the court, it could be viewed as selective and mala fide implementation of the court's orders, amounting to contempt.

THE exit of Giri, who took a principled stand even if it meant forgoing the remainder of his tenure extending up to November 2000, should now force the Government's hands into implementing the Supreme Court order in its entirety, not just selectively as it had tried to do earlier. Yet, considering the Government's reluctance to bring the CBI under the superintendence of an autonomous CVC (which is what the Supreme Court has recommended) it is likely that other options would be explored. The CVC has remained headless before - for as long as nine months prior to Giri's assumption of office in 1996. To prefer such a situation would be just to postpone the inevitable. However, the Government might still opt for it, but for pressure from the Bharatiya Janata Party's allies and others who want the chiefs of the two investigative agencies removed immediately for their own reasons. One of the perceived purposes of the pressure is to undermine the cases against Jayalalitha, supremo of the All India Anna Dravida Munnetra Kazhagam, a partner in the ruling coalition, for alleged violations of the Foreign Exchange Regulation Act (FERA). These cases are being actively pursued by the E.D.

In the circumstances, it remains to be seen whether the Government will try and instal an acting CVCr until it puts in place the necessary legislation granting statutory status to the CVC as prescribed by the apex court. However, considering that any attempt to get the acting CVCr to do what Giri refused to do could also be construed to be contempt of court, it may not be a viable option after all, unless the Government goes back to the court to get the latter's approval for such a move.

Gurudas Dasgupta, a Communist Party of India member of Parliament, wrote to the Prime Minister in the last week of July cautioning the Government against selective implementation of the Supreme Court judgment on granting autonomy to investigative agencies.

The Law Commission has completed its task of drawing up the draft legislation to confer statutory status on the CVC. Law Commission Chairman Justice B.P. Jeevan Reddy told Frontline that he would submit the draft to the Government in the first week of August. If the Government is serious about implementing the Supreme Court's directions, it could issue an ordinance after the current session of Parliament and confer statutory status on the CVC and then go about the task of appointing a new CVCr under the court-prescribed procedure.

A CVC so constituted will have, through its control over the CBI, jurisdiction over the entire bureaucracy, the public sector, banks and financial institutions and other autonomous bodies receiving government funds as well as over politicians holding public office - a situation too daunting for any government. Herein lies the catch.

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