The ordinance on the basis of which the appointment of a new Chief Vigilance Commissioner has been made deviates from the Supreme Court directive on the grant of autonomy to the investigative agencies and the selection of their chiefs.
THE manner in which the Bharatiya Janata Party-led Government promulgated an ordinance on the Central Vigilance Commission (CVC) in the last week of August reflected the extent of its desperation to get out of a sticky situation.
In December 1997, the Supreme Court, which was exercised over the tardy progress of investigations against powerful persons accused in the Jain hawala case, laid down detailed guidelines in order to insulate the two Central investigative agencies, the Central Bureau of Investigation (CBI) and the Enforcement Directorate (E.D.), from political and bureaucratic interference (Frontline, August 28). It ordered that the CVC be given statutory status and its terms of reference widened to include supervision and monitoring of investigations conducted by the agencies. It also laid down the procedure for the selection of the chiefs of the CVC, the CBI and the E.D. and ordered that its directions be implemented immediately. However, neither the United Front Government nor the BJP-led Government did much to implement the order; the obvious reason was the apprehension that control of the CBI, which is currently with the Prime Minister's Office, would pass on to the CVC.
The BJP-led Government showed no keenness to insulate the investigative agencies from bureaucratic and political interference; it did, however, exhibit extraordinary interest in replacing the chiefs of the CBI and the E.D., which have been vigorously pursuing cases against politicians and influential persons close to centres of power. All the ingenuity of a vast pool of bureaucrats at the Centre was deployed to find ways and means to replace the chiefs of the CBI and E.D. without implementing the court's directions relating to the grant of autonomy to the agencies.
Parts of the Supreme Court order were selectively invoked for this purpose. First, the post of the E.D. Director was upgraded to that of Special Secretary, two ranks above the rank attached to the post until then; simultaneously, however, the Government introduced a bill to replace the Foreign Exchange Regulation Act (FERA) with a far weaker Foriegn Exchange Management Act (FEMA), to be administered by the E.D. Then an attempt was made to get the then Chief Vigilance Commissioner (CVCr), S.V. Giri, to appoint the new heads of the CBI and the E.D. after getting supportive opinion from the Attorney-General in this regard. When Giri refused to oblige the Government on the ground that he had not been duly appointed to his post according to the Supreme Court's directions, he was relieved of his charge, leaving the CVC headless.
The Government then transferred Enforcement Director M.K. Bezbaruah on the plea that the Delhi Government had asked for his services (Frontline, September 11); this was done despite the fact that the Centre was in no position to appoint the new E.D. chief in the absence of a CVCr. When the issue of Bezbaruah's transfer came up before the Supreme Court on August 18, the court expressed "extreme distress" at his transfer and demanded to know why he had been transferred, particularly at a time when he was handling sensitive investigations.
In the light of this, the only way in which the Government could avoid the humiliation of a censure by the court - or, worse, an order to reinstate Bezbaruah - was for it to rush through with an ordinance to set up the CVC, appoint a CVCr and get him to appoint the new chiefs of the CBI and the E.D. This could then be presented to the court as a fait accompli in order to stall Bezbaruah's reinstatement.
HOWEVER, even as the Government rushed through this manoeuvre, efforts were launched to ensure that the CVCr would be chosen from within the bureaucracy. Efforts were also on to tailor the institution of the CVC to conform to certain perceptions about its possible role and functions, instead of implementing the Supreme Court's order in good faith.
The Government had asked the Law Commission to draft a CVC bill in April. The Commission, headed by Justice B.P. Jeevan Reddy, submitted its draft on August 12. Yet the Union Cabinet, which met on August 20 to discuss a draft ordinance on the CVC, was told that the Law Commission's draft was awaited and that another draft, prepared by the Law Ministry, was being considered. Minister for Urban Affairs Ram Jethmalani, who was one of the four Ministers who were considering the draft and who had independently learnt from Justice Jeevan Reddy that the Law Commission's draft had been submitted to the Government on August 12, demanded that the Commission's draft be produced. There was much resistance from the bureaucracy, especially from Personnel Secretary Arvind Verma.
On August 23, Jethmalani wrote to the Prime Minister and alleged that Verma had a "sinister interest" in keeping the Law Commission draft from the ministerial panel considering the draft ordinance. Significantly, the draft considered by the panel was different from the Law Commision's draft in many respects; the most glaring difference was that the draft ordinance favoured the inclusion of the Personnel Secretary (as ex-officio Vigilance Commissioner) in a four-member CVC. The Supreme Court's order had envisaged a single-member CVC.
Jethmalani's second objection related to two issues: first, he wanted the CVC to be a one-member panel as envisaged by the Supreme Court. Second, he objected to the move to consider only bureaucrats for appointment as the CVCr. The Supreme Court had directed that the CVCr be chosen from a panel of civil servants with impeccable integrity, and others. This would have enabled the Government to consider judges or other eminent public persons for appointment, but the bureaucracy, which wanted the choice to be restricted to its own ranks, had presented a draft which not only restricted the choice to bureaucrats but also included the Personnel Secretary as an ex-officio member. In his letter, Jethmalani alleged that one of the Secretaries had observed that the Law Commission draft was "utterly useless" and that it "violated every rule of drafting known to the department".
Jethmalani also alleged that when the ministerial committee comprising himself, Rangarajan Kumaramangalam, M. Thambidurai and R. Janarthanan insisted on clearing the draft with minor modifications, the Personnel Secretary vetoed the move and asked for it to be referred to the Cabinet again.
It is also learnt that Jethmalani and Thambidurai then approached the Prime Minister with their resignation letters. The Prime Minister, however, pacified them and said that the changes they wanted would be taken up for consideration when the ordinance came up for ratification by Parliament. (However, by then the CVC would have been set up with members selected from the bureaucracy and it may be too late to reverse the appointments.)
It was in this light that Jethmalani wrote to the Prime Minister stating categorically that "the draft produced by the Department should be rejected. Even the draft settled by me requires to be finally seen by me... The question of bureaucratic insolence and insubordination will have to be separately dealt with."
Jethmalani had reason to believe that in the light of such strong objections to the draft from three of the four Ministers on the panel, the ordinance would not be issued. However, the Government issued the ordinance a day later, in the very form in which the bureaucracy wanted it. The Government also went ahead and appointed N. Vittal, Chairman of the Public Enterprises Selection Board, CVCr. Vittal formally took charge on September 3. Now the CVCr can appoint the chiefs of the CBI and the E.D.; the appointment panels in respect of these had been prepared when the Government approached Giri to make the appointments.
Interestingly, the draft bill submitted by the Law Commission to the Government envisages the selection of the CVCr from among "outstanding and meritorious" civil servants "of impeccable integrity". However, the original draft copies available with the three members of the Commission - Justice Jeevan Reddy, Justice Leela Seth and Dr. N.M. Ghatate - include the words "and others". This clause, which does not appear in the draft bill, would have enabled the selection of persons other than bureaucrats as CVCr. The "slip up" may have occurred when the draft was forwarded to the Government by R.L. Meena, member-secretary of the Law Commission who is also the Law Secretary. It is learnt that Justice Jeevan Reddy has launched an inquiry into the "slip up" and issued a corrigendum on September 2 to the Government advising that the words "and others" be included in the clause relating to the selection of the CVCr.
While the Law Commission draft substantially conforms to the Supreme Court's order in letter and spirit (except for the slip up) and even improves upon it, the ordinance deviates from the Court order in several ways. The Supreme Court did not envisage a multi-member CVC; the ordinance does. The court did not specify that Vigilance Commissioners will be selected only from among civil servants; the ordinance does so. The Supreme Court did not include the Personnel Secretary as ex-officio member; the ordinance does. Having the Personnel Secretary as ex-officio member leaves the door open for influence-peddling by bureaucrats who may come under the scrutiny of the investigative agencies, since the former will have a major say in their postings to the top slots in government.
More important, the ordinance brings back the "single directive", which the bureaucracy could use to block investigations against its members and which was struck down by the court. It stipulates that any investigation against officials of and above the rank of Joint Secretary to the Government of India and of general managers and above of nationalised banks, and equivalent ranks in public sector undertakings can be taken up by the CBI only after clearance by the CVC. Earlier, the clearance had to be obtained from the respective administrative ministries which controlled these officials.
The ordinance also seeks to limit the extent of superintendence and monitoring by the CVC of the CBI in the matter of investigations relating to cases under the Prevention of Corruption Act, 1988. This leaves out from the CVC's purview the vast number of economic offences and other crimes that are being investigated by the CBI. In effect, the Prime Minister's Office will continue to exercise control over such cases which include, to name only two, the Purulia arms drop case and the Tanwar murder case, which involve persons in politics.
MEANWHILE, in its counter-affidavit to the Supreme Court on the Bezbaruah transfer issue, the Government stated that the transfer was effected to comply with the Delhi Government's request to the Centre to depute an upright officer to handle the capital city's Transport Department; it further said that since Bezbaruah's post had been upgraded to that of Special Secretary, he was no longer eligible to hold the position. It further justified the transfer on the grounds that Bezbaruah had been the longest-serving E.D. chief. A supplementary affidavit submitted on August 26 pointed out that the CVC ordinance had been issued and that the Government proposed to appoint a CVCr and then the chiefs of the CBI and the E.D. in accordance with the procedure laid down by the court.
The Centre for Public Interest Litigation, which had filed a public interest petition in the Supreme Court challenging Bezbaruah's transfer, sought leave from the court to file a supplementary petition.
