An appointment challenged

ACQUAINTANCES from their days in college and professional associates for close to four decades, two of India's most senior police officials have suffered a courtroom collision that has unsettled the functioning of the country's premier criminal investiga tion agency. On February 8, the Bangalore bench of the Central Administrative Tribunal (CAT), acting on a petition filed by C. Dinakar, Director-General of Police (DGP), Karnataka, quashed the appointment of R.K. Raghavan as Director of the Central Burea u of Investigation (CBI). Due procedure had not been followed, said the CAT, upholding Dinakar's plea that he had been unfairly excluded from consideration for the top job in the CBI.

First reactions in Delhi verged on bemusement. One of a handful of officials still in service from the Indian Police Service batch of 1963, Raghavan ranks today as the seniormost IPS officer in the country. Due to retire in the normal course at the end o f April, he was initially inclined to ignore the tribunal's order, which was in any case to become operative only after a two-month lag. Government sources, though, were sufficiently disoriented to insist at first that the matter was entirely for the ind ividual concerned to pursue. It later dawned on the Ministry of Personnel, which oversees the functioning of the CBI, that the tribunal ruling undermined all the procedures involved in appointments to senior positions in the Central government. Unless th e implied hindrances were quickly removed, the area of choosing individuals to fill top slots in the Union government could soon become a battleground of disgruntled egos.

The basis for quashing Raghavan's appointment is ostensibly the 1998 ruling of the Supreme Court in Vineet Narain vs the Union of India. Taking cognisance of the critical importance of the CBI in the task of checking official malfeasance and corru ption, Justice J.S. Verma, then Chief Justice of India, had directed the government to take "all measures necessary to ensure" that the agency functioned "effectively and efficiently and is viewed as a non-partisan agency".

For this purpose, it was necessary to ensure that the process of choosing the CBI Director was rendered immune to political and partisan concerns. Chief Justice Verma's suggestion in this regard was clear: "Recommendations for appointment of the Director , CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members... The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet from the panel recommended by Selection Committee."

The process of consultation and choice is normally confidential, but in December 1998 interest in the media and the public was running high and a number of the inner details were leaked out. It was known, for instance, that the designated committee had s ent up three names for the top CBI job to the Cabinet. The three contenders were Raghavan, H.J. Dora and Trinath Mishra, the last two from the 1965 batch. Although the government seemed to agonise endlessly over the choice, the final decision to opt for Raghavan seemed to be in conformity with all known norms of merit and seniority.

Vineet Narain, whose litigation led to the Supreme Court order on the norms for choosing the CBI Director, did not seem to think so and filed a petition in the Supreme Court alleging certain irregularities and departures from the norms. The Supreme Court dismissed his petition in August 1999.

Dinakar, who has acquired a reputation as a compulsive litigant and holds his current job by virtue of endless legal wrangling, remained unpersuaded. In December 1999, a week before the one-year period of limitation for appealing against official appoint ments became operative, he filed his petition before the Bangalore bench of the CAT. Though the Bangalore bench's jurisdiction over a Central-level appointment remained unclear, counsel for the Central government chose not to press too hard on this quest ion, since the case seemed fairly strong in other respects. The government took the argument that far from considering all IPS officials of the appropriate seniority, the process followed was to consider only those in the rank of DGP who had been empanel led for appointment to the Central government. While there could be at any time nearly a hundred IPS officials of the rank of DGP, only around a third of this number would be thus empanelled. This empanelment reflects a confidential process of ranking by merit and seniority.

Dinakar argued at first that he had been empanelled and placed by the CBI selection board at the top of the list of three officers sent to the Cabinet. This claim was proven false when the government produced a list of 33 officers whose names had been se nt to the board. But then, curiously, the CAT decided that this circumstance was immaterial, since the Supreme Court had not specifically ruled that only empanelled officials should be considered for the CBI job. The board's deliberations, it ruled, coul d not be constrained by the prior decisions made in accordance with another quite distinct process, that is, that of empanelling officials for appointment to the Central government in the rank of DGP. This reading of the law, said the CAT, was fairly une quivocal. And since Dinakar as a senior policeman did merit consideration for appointment to the CBI post, his omission was sufficient to vitiate the process of choice.

Clearly, the matter could be resolved if the Supreme Court were to issue certain further explanations on Chief Justice Verma's 1998 ruling. If the choice of CBI Director were to be made entirely distinct of other processes of ranking police officials by merit and seniority, then it could place upon the selection board a heavy burden. But with the CAT having unburdened itself of its quixotic wisdom, the onus for providing the necessary clarity rests with the judiciary.

Sukumar Muralidharan

SPEAKING at a scientific research institute in Chennai recently on the subject of "Physics and Security", Dr. P.K. Iyengar, a former Chairman of the Atomic Energy Commission (AEC) who was Secretary, Department of Atomic Energy, expressed his opinion that India was not yet fully a nuclear weapons state.

In his seminar, which dealt primarily with the basic physics of nuclear weapons and was an assessment of the scientific and policy implications of the Pokhran-II tests, Dr. Iyengar argued that from published data on the yields it was clear that the therm onuclear device tested on May 11, 1998, functioned only with very low efficiency. Subtracting the yield of the boosted fission primary from the total announced yield of roughly 45 kilotons, Dr. Iyengar concluded that the efficiency of the secondary fusi on component must have been around 10 per cent. In reply to a question from the audience as to whether this low efficiency was by design or by accident, Dr. Iyengar said that it was by accident and that "no one deliberately designs a device to function a t low efficiency."

From his analysis of the performance of the thermonuclear device tested in Pokhran-II, Dr. Iyengar concluded that India needed to conduct many more tests before it could have a proven thermonuclear weapon that could be inducted into the arsenal of the ar med forces. In this context, while strongly supporting nuclear weaponisation by India, the former Chairman of the AEC considered the declaration by the government that India was a nuclear weapons power to be premature. India could be considered a nuclear weapons power only with respect to Pakistan because both sides would have only fission weapons. But in relation to China, which has proven thermonuclear capability, India could not be called a nuclear weapons power.

In Dr. Iyengar's opinion, the National Security Advisory Board had "not done a good job" with regard to the draft Indian Nuclear Doctrine since it had not studied properly several issues including the current capabilities of the Indian nuclear weapons pr ogramme which could not provide for any serious second strike capability.

In the absence of such capabilities, he felt that the announcement of a no-first-use policy as well as the public announcement of a nuclear doctrine were premature.

Dr. Iyengar also reiterated his well-known position that India should not sign the Comprehensive Test Ban Treaty (CTBT) or accept any curbs on its options in the matter. He pointed out that research to improve the design of thermonuclear weapons was be ing actively pursued, particularly in the United States. In this context he cited the example of research efforts to produce the gamma-radiation required to trigger the fusion part of a thermonuclear weapon by means other than the explosion of a fission primary. He drew attention to the fact that the research literature from the U.S. and other nuclear weapons states contained many such proposals for further nuclear weapons development.

In response to questions from the audience, Dr. Iyengar clarified that while questions of strategic targeting for Indian nuclear weapons had been studied, there were no detailed studies of the consequences of a nuclear exchange involving India. In partic ular, there had been no serious study of civil defence measures in case of a nuclear war. However, he emphasised that in his scientific judgment any serious attempt at nuclear civil defence would be futile one.

T. Jayaraman