Vinod Rai's lapses

THE recently retired Comptroller & Auditor General Vinod Rai’s conduct raises important issues of propriety that neither the gravity of the scams he exposed in his reports nor the media hype over his book can obscure.

The CAG’s office is established by Article 148(1) of the Constitution. The Comptroller & Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971, fills in the details and supplements Article 148(1). “He shall only be removed from office in like manner and on the like grounds as a judge of the Supreme court.”

The proviso to Article 324(5) imposes an identical condition on the removal of the Chief Election Commissioner (CEC). However, the CAG is advisedly subjected to a bar by the Constitution, which it did not impose either on judges of the Supreme Court or on the CEC. Article 148(4) lays down that “the Comptroller and Auditor General shall not be eligible for further office either under the Government of India or under the government of any State after he has ceased to hold his office”. It is not difficult to appreciate the raison d’etre of this bar.

When Article 148 was debated in the Constituent Assembly on May 30, 1949, the Chairman of its Drafting Committee, Dr B.R. Ambedkar, said: “I am of opinion that this dignitary or officer is probably the most important officer in the Constitution of India… . His duties, I submit, are far more important than the duties even of the judiciary…. I personally feel that he ought to have far greater independence than the judiciary itself” ( Constituent Assembly Debates , volume 8, pages 407-8).

Hence the additional curb on his freedom after retirement. Ought he not be subject to the same restraints while in office and soon thereafter, if not, indeed, greater? Ask yourself a simple question: Would a judge of the Supreme Court have escaped censure if he had spoken in the language Vinod Rai deployed while in office on at least one occasion and immediately after retirement?

No comments are being made here on the merits of the cases that Vinod Rai lays bare in the book, namely, the Commonwealth Games 2010; the coal mine block allotments; the civil aviation muddle; the gas exploration scandal and, of course, the mother of all scams—the 2G spectrum scam. There is on each of them a strong case to answer, but answers are not forthcoming. One hopes Praful Patel will put his money where his mouth is and sue Vinod Rai for libel. Each side will state its case on oath and under cross-examination. It is unlikely, though, that the erstwhile Minister for Civil Aviation will carry out his threat. Likewise, no aspersion is either intended or made on Vinod Rai’s personal integrity, which the writer respects. On two major points he is absolutely right. His claim, summed up in the title of the book Not Just an Accountant , is perfectly valid, though the claim in the sub-title “the Nation’s Conscience Keeper” is characteristically flamboyant. The first major challenge to the CAG’s status and remit was mounted by V.K. Krishna Menon as report after report revealed his bunglings—first, as High Commissioner in London, and, next, as Defence Minister (see this writer’s article on the constitutional aspects of his challenge in The Indian Express ; July 14, 1962).

Equally justified is Rai’s exposure of the disgraceful attempts by some politicians to influence him. One wonders why he did not reveal this when these attempts were made while he was in office, just as Justice P.K. Goswami did in his judgment in the famous case concerning the imposition of President’s Rule in several States. “I part with the records with a cold shudder. The Chief Justice M.H. Beg was good enough to tell us that the acting President B.D. Jatti saw him during the time we were considering judgment after having already announced the order and there was mention of this pending matter during the conversation. I have given this revelation the most anxious thought and even the strongest judicial restraint which a Judge would prefer to exercise leaves me no option but to place this on record hoping that the majesty of the High Office of the President, who should be beyond the high-[watermark] of any controversy, suffers not in future” ( State of Rajasthan vs Union of India (1977) 3 SCC 592 at 671). It bears mention that unlike Indira Gandhi, Charan Singh gave an option to all the Congress Chief Ministers to continue in office while seeking afresh a mandate that had expired any way by efflux of time. The Assembly’s term was extended only by the hated 42nd Amendment enacted during the Emergency. The difference is never mentioned by the apologists, of course.

Disregard of rules It is Vinod Rai’s agenda which deserves notice and his cavalier disregard of the rules that deserves censure. His address to young police officers at the Sardar Vallabhbhai Patel National Police Academy in Hyderabad on October 11, 2011, bears recalling now in view of his recent conduct (“Reckless activism”; Frontline , November 18, 2011). It was not an academic pronouncement. He spoke as an activist. He wanted to enlist police officers in his campaign. This is what he said at the very outset: “I wish to make three propositions today and seek your reactions on whether you agree and whether you are in a position to be a participant [sic.] in ensuring that the All India Services regain their past glory. First: That governance is at its lowest ebb. That the morale of the civil servants is low. That credibility of the government is at its lowest. That decision-making has become a casualty. Second: That this situation is deleterious for the nation. That too much is at stake for too many in such a situation. Third: On you and officers of the All India Services, among others, rests the onus to remedy the situation” (emphasis added, throughout).

It was not his place as CAG to speak on “governance” or on “the credibility of the government”. That crass impropriety apart, the speech reveals the insolence and ignorance that come very naturally to civil servants of a certain type. “On you [police officers] and officers of the All India Services, among others, rests the onus to remedy the situation.” That “onus” rests mainly on the people of India.

As CAG, T.N. Chaturvedi exposed scams such as the deals relating to Bofors and the HDW Submarines. But he refused to give interviews to the press after retirement. Unfortunately, he accepted the Bharatiya Janata Party (BJP) government’s offer of governorship of Karnataka, albeit a good few years after retirement.

Vinod Rai was not only impatient to see his book out (“my insistence on the timing of the release [ sic. ] of the book”) but went TV-hopping from one channel to another, regardless of the credentials of the TV anchor, and also gave a flurry of interviews to the print media. Why? Has any judge of the Supreme Court or any former CAG ever behaved like this?

Comments in the book as well as to the media are blatantly political. “Till a while ago, apologists for the government were crying themselves hoarse, putting a substantial part of the blame—if not all—for the slowdown in economic growth and policy paralysis on audit— nay, the CAG. They unabashedly besmirched the robustness of the Indian economy, painting it as so fragile that a couple of audit reports would do it irreparable damage. They did not realise that the public did not believe them. They failed to see that their explanation was an alibi for non-performance. It was a bogey. They did not realise that, through their actions, they only underscored those common platitudes—the worst wheel in the cart makes the most noise, or the empty vessel is the loudest. The noise was made by those who realised their ways, and hence their days, were over.”

To be fair, some of the United Progressive Alliance (UPA) figures wantonly attacked him. Particularly revolting were the attacks by members of the Public Accounts Committee of Parliament. But he goes well beyond defence to mount an attack on a particular government and its head, Prime Minister Manmohan Singh. His is a campaign proper, and he performs as an ardent activist.

Reproduction of documents This brings us to a lapse of graver magnitude which deserves censure. Vinod Rai freely reproduces in the appendices texts (facsimiles) of documents that came into his possession in the course of his duty, not only documents that he had himself written, but ones that were written by others to third parties. The impropriety, crass as it is, has escaped this monitor of rectitude. Let alone official documents, such as the Terms of Reference of a Group of Ministers, we are provided the texts of six letters by Telecommunication Minister Dayanidhi Maran to Prime Minister Manmohan Singh and of three letters by the Prime Minister to him. The text of a “Summary Record of the meeting taken by Principal Secretary to PM on 25 July 2005 in PMO” is set out with notings on the document. There were 18 participants. Vinod Rai was not among them; not that this would have justified the disclosure. Also appended is the full text of the “minutes of the meeting taken by the Minister of State for Civil Aviation on 2 August 2004 to discuss the proposal of Air India’s aircraft acquisition”. Civil Aviation Minister Praful Patel presided. Five others were present, but not Vinod Rai. They came to his notice in the course of his duty. The fact that he drew on such material for his reports does not invest him with any right, authority or power to publicise them himself. In the note on “Acknowledgements” there is no mention of any permission for disclosure of these documents. Consider, first, Indian precedents, such as they are, and, next, the law on the subject. The memoirs of B.K. Nehru, Nice Guys Finish Second , are noteworthy. His prologue should prompt serious reflection on the question. It deserves quotation in extenso , coming as it does from a man highly respected for abiding by the rules: “The fact is that having been a disciplined civil servant for most of my life I obeyed strictly, till towards the end of my official career, the rule that no copy of any official paper may be maintained in the private possession of any individual. For most of my life, therefore, I kept no records except my engagement diaries and the press cuttings which, for some period, were collected by my wife.

“It was only when I discovered later in life—wisdom and reality seem to have dawned on me very late, indeed—that in the new world in which we live nobody pays attention to any rules, and that in most foreign countries people retain copies of official papers and make money subsequently by their publication, that I started retaining copies of some of the important letters I wrote during my tenures as Governor . Also, having discovered that the Government of India would not allow even the author of notes and letters to see them or read them in the files after he had demitted office, I requested one successor of mine as Ambassador in Washington to let me have, stealthily and in breach of the law, copies of letters and telegrams that I had received and sent on matters of importance during my long tenure in that office. Apart from these I have only a diary written intermittently during my student days.”

Note that it is only the papers he had himself written that he had asked to see. He records Kashmir Chief Minister Farooq Abdullah’s impropriety in pushing through a vote of confidence in the Assembly on January 27, 1984, immediately after Nehru’s address as Governor, in breach of the convention that permits transaction only of routine business that day and the rules that require prior notice. Nehru reproduces the text of his letter to the Chief Minister that evening, pointing out that he had always told the possible defectors that the Assembly alone was the proper place for trials of strength. But, under the rules, a motion of no-confidence was now barred during the same session. He would, therefore, not hesitate to sack Abdullah if, in these circumstances, defectors sought his intervention. Note that it applied only to “the present session”, and only because of Farooq’s sleight of hand; otherwise, the democratic principle was clearly stated.

Trust B.K. Nehru’s successor Jagmohan to ignore that. He quoted from Nehru’s document in a letter he wrote to The Times of India (August 22, 1984) in reply to former Union Home Secretary and Governor L.P. Singh’s devastating censure of Jagmohan’s hatchet job on July 2, 1984, in his dismissal of Farooq Abdullah as Chief Minister. Neither legally nor morally had he any right to quote from it at all, least of all quote it out of context as he did. Nor was that all. The full text of Nehru’s letter was reproduced by Jagmohan in his memoirs, My Frozen Turbulence (1991). There are nearly a dozen quotations from official documents submitted to him or acquired by him in his official capacity from senior civil servants and police officers who were still inservice . None of the leading figures among them was spared.

These were state property. Jagmohan used them without official approval. At one place even Cabinet proceedings were disclosed. So, at another, was a civil servant’s report on the behaviour of a predecessor regime. It concluded with praise for Jagmohan . All this was grossly improper. The officials were Ved Marwah, Jamil Qureshi, Hamidullah Khan, Mahmudur Rehman, Amar Kapur, Lt Gen. M.A. Zaki, C. Phonsong, and J.N. Saxena, Director General of Police—all of very senior rank. Some of them were in service when the memoirs were published. Not that their retirement would have made any difference. Their being in service was only an aggravation of the offence.

If Jagmohan was right, there is nothing to prevent any public servant from ransacking the records and claim in his defence that he wished “only to expose the lies” in the service of historical truth. Vinod Rai is, surely, a civil servant of a higher class than Jagmohan.

The case of Richard Crossman Now, for the law. On April 11, 1975, the British government appointed a Committee of Privy Counsellors to go into the entire question in the wake of the case concerning Richard Crossman’s Diaries . The Report of the Privy Counsellors on Ministerial Memoirs submitted on December 16, 1975—the despatch should shame our committees— contained a wealth of material and, what is important, it is cited in authoritative works on constitutional law and the rules its prescribes are accepted. (HMSO; Cmmd. 6386).

The report noted (in paragraph 8) the “current practice when Ministers relinquish office: they are asked not to take away with them any Cabinet or Cabinet Committee papers or minutes or copies of other official documents; they are reminded that any former Minister may at any time have access in Cabinet Office to copies of Cabinet or Cabinet Committee papers issued to him while he was in office; and it is customary to give a former Minister access on a similar basis to other official documents in the Department concerned”.

The report was fair to all when it recommended a 15-year rule: “Reviewing the various categories of restriction that we have recommended, we see that the time factor has not the same significance for all of them. In this respect questions of national security and international relations impose their own time limits simply by virtue of their own special circumstances. Certain facts bear upon them and certain considerations arise out of those facts. When those considerations have ceased to import a danger to national security or international confidence the ‘secret’ itself ends its life. That life may cover only a few months or the need for reticence or silence may persist over a period of years. The only thing that matters for this purpose is that the intending author should always clear his material through the Cabinet Secretary before he offers it to the public.

“But the problem is fundamentally different for those issues which we have classed as Confidential Relationships. Essentially they do not depend upon the special circumstances of individual cases; they arise from the general assurance or expectation of confidentiality which is owed to the efficient conduct of government business. The ‘secrecy’ which it enjoins has no need to be permanent in order to be effective; and we are led to the conclusion that a fixed time limit, at the expiry of which the restrictions proposed under this heading of Confidential Relationships will be lifted, is the only satisfactory way of reconciling the interests of the state, the needs of the author, and the demands of the interested public.

“Any such time limit must necessarily be arbitrary and general. It does not admit of any reasoned process of measurement. We take into account the desirability of a man who thinks that he has something important to say being able to give his account publicly during his own lifetime. We think it advantageous too that what he has to say should be said during the probable lifetime of others who may be involved in his account. These considerations persuade us that a period of 30 years analogous to the present moratorium on the availability of public records is altogether too long for the purpose. Nor do we think a period of that length is needed to satisfy the basic requirements of confidentiality. Controversies die down and issues become stale. What we propose for the time limit is a period of 15 years. That, after all, is sufficient to cover the maximum life span of three successive Parliaments.”

Role of civil servants What of civil servants? The Minister owes a duty of confidentiality to the civil servant and he, to him. Let the report speak for itself. “Having completed our consideration of the arrangements which should govern the publication by former Ministers of memoirs and other works relating to their experience as Ministers, we are now required by our terms of reference ‘to examine the implications of these arrangements for the rules governing the publication of similar works by former members of the public services.’ …

“It is clear to us that, in relation to possible disclosures of the first two kinds, a former public servant should be under just the same obligation as a former Minister to submit his manuscript to scrutiny by those carrying the immediate responsibility in the relevant fields and to defer to their judgment.

“As regards disclosures destructive of Confidential Relationships, the obligations of former Crown servants other than Ministers arise in two ways:

(a) They are privy to many of the confidences exchanged between Ministers which we have discussed in earlier parts of our Report, and it is an essential part of our system of government that Ministers should feel uninhibited about admitting their officials to these confidences and talking freely with them. It follows in our view that a former member of the public services should be subject to the same obligations as a former Minister to protect confidences of this kind.

(b) In their capacities as advisers to Ministers of successive administrations, members of the public services are required not to disclose to Ministers the views expressed by their predecessors of a different political persuasion nor the advice on which those predecessors took their decisions. We have recognised these requirements in the conclusion we have reached in paragraph 86 that an ex-Minister memorialist should refrain from disclosing official advice for a period of 15 years or for the remainder of the service life of the adviser, whichever be the longer. We are in no doubt that a former member of the public services should be under the same obligation.

“We thus conclude that, in this matter of Confidential Relationships, the principles which we have enunciated concerning publications by ex-Ministers, the obligations which we have suggested should rest upon them, and the periods for which those obligations should be maintained, should all be reflected also in the rules governing the publication of memoirs and other works relating to their official experience by former members of the public services” (paragraphs 88, 92 and 93).

In May 1992, a hitherto confidential document was published by the John Major government, as a guide to Ministers. Entitled “Questions of Procedure for Ministers”, it ruled: “Ministers may not, while in office, write and publish a book on their ministerial experience. Former Ministers are required to submit their manuscript to the Secretary of the Cabinet and to confirm to the principles set out in the Radcliffe Report of 1976” (Cmnd 6386). Paragraph 19 read: “The principle of collective responsibility and the need to safeguard national security and relations with other countries impose certain obligations on former Ministers who are contemplating the publication of material based upon their recollection of the conduct of Government business in which they took part. They are required to submit their manuscript to the Secretary of the Cabinet and to conform to the principles set out in the Radcliffe Report of 1976 (Cmnd 6386).” The 1992 document was reissued in 2005 as Ministerial Code .

Geoffrey Marshall discussed the subject in his authoritative work Constitutional Conventions (Oxford University Press; page 61). He opined: “The present practice is formally that set out in the Report of the Radcliffe Committee of Privy Councillors on Ministerial Memoirs. Ministers should not disclose Cabinet transactions for a period of fifteen years after their occurrence if they affect national security, or would be injurious to foreign relations or would publicise relationships between Ministers, or between Ministers and the civil service or outside advisers. Diarists who work to these guidelines do not seem likely to find a ready sale for their memoirs. It is intended that the guidelines should be accepted as a matter of honour by Cabinet Ministers, but they could presumably be enforced by a further application for an injunction sought by the Attorney General or even perhaps by a disgruntled colleague.”

But the CAG stands on a higher footing than a Minister, who is generally a politician, or a civil servant. His office is just one rung below that of judges of the Supreme Court and is governed by the Constitution and the Act of 1971. Could a judge of the Supreme Court have acted as Vinod Rai has? This is the crucial test.

The law was discussed earlier in this magazine (“Copyright in Nehru’s State Papers”; Frontline , August 8, 1997). Documents which Jawaharlal Nehru wrote as Prime Minister belong to the Union of India. Unlike his private papers, they could not legally form part of his estate to be inherited by Indira Gandhi, Rajiv Gandhi, Sonia Gandhi or her children. The Nixon papers were acquired by an Act of Congress which the Supreme Court upheld. The Presidential Recordings and Materials Preservation Act, 1974, was upheld by the Supreme Court in Richard Nixon vs Administrator of Central Services (433 U.S. 425). For reasons not difficult to guess, India’s historians have maintained a discreet silence on Sonia Gandhi’s zamindari over the Nehru papers. As is her wont, access is granted at her sweet will, notably to foreign scholars. One shudders to think of their fate when their custody passes to Sonia Gandhi’s political heir, her son Rahul Gandhi.