Governance Now, Sept 16-30
Forget teeth, it does not even bark any more
Manoranjan Kumar hit the headlines a couple of months ago when former chief justice of India R C Lahoti took up his case with the prime minister and the UPA chairperson, seeking his protection as a whistleblower. Nothing came of it, and nothing probably will, but his case is instructive and hence bears repetition.
An Indian Economic Service officer, Kumar was deputy chairman with an additional charge as chief vigilance officer (CVO) of the Kandla Port Trust in 2007 when he exposed a series of corruption cases involving the port’s land. He presented nine reports to the Central Vigilance Commission (CVC) pointing out how more than 16,000 acre of land had been given for salt manufacturing, warehousing, liquid storage etc to private bodies at nominal prices which were then renewed in violation of the original contracts. He said these deals led to a revenue loss of over Rs 6,000 crore.
CVC found merit in the reports and handed over the cases to the CBI. The cases are in various stages of prosecution at present but Kumar is not made a witness in any of these cases.
Meanwhile, Kumar was transferred in January 2008 to his parent cadre, the finance ministry, on the ground of “poor performance”. But he was neither given a posting nor salary. He approached the CVC which told him that nothing could be done because he was “not a whistleblower” and so, the protection under the government of India resolution on Public Interest Disclosures and Protection of Informer (PIDPI) 2004 was not available to him. (PIDPI was issued following the murder of IITian Satyendra Dube to protect whistleblowers and the CVC was made the “designated agency” for its implementation.) He was also told that he was “not a regular CVO” because he was holding additional charge as the CVO and, hence, could not be given protection that is available to other CVOs either.
Kumar approached the Central Administrative Tribunal (CAT) and got the transfer cancelled. Yet, the finance ministry didn’t give him any posting, or salary. The ministry challenged the CAT order in the Delhi High Court where the matter is pending now. Mercifully, the high court directed in February 2009 that Kumar be given his salary, and promotion that would be due in course. So, he now gets salary but has been without a job since January 2008.
When the government introduced the whistleblower bill, making CVC the “competent authority”, in the Lok Sabha on August 26, Kumar had this to say: “If the CVC fails to protect its own arm, the CVO, despite clear guidelines and rules, should CVC be given the task of protecting the whistleblowers? What has the CVC done to protect civil servants who are protecting the exchequer to merit such responsibility?”
Kumar is not the only one questioning the CVC’s credentials or functioning. There are several other whistleblowers who met a similar fate (see the boxes), prompting Lahoti to point out in his letters that every whistleblower who went to the CVC in recent years “came to grief”. These whistleblowers have charged the CVC with not just disclosing their identity—in some cases by directly forwarding their written complaints to those against whom complaints were made—but also that the CVC provided them no protection whatsoever, forcing them to seek help from the courts of law.
A reading of these cases would make it clear that there is no transparency or accountability in the functioning of the CVC, parimarily because it is answerable to none. It has not even prepared its annual reports since 2008. In any case, its annual reports never got attention of Parliament. Arvind Kejriwal, an RTI activist who is a member of the Vigilance Advisory Committee that oversees CVC’s functioning, says “there are no checks and balances” and therefore, no remedy for a series of charges of nepotism made against the top corruption watchdog. “This committee is a farce and hardly ever meets,” he adds.
If all the whistleblowers are forced to approach the court for their protection, there is little justification in making the CVC the “competent authority” in the whistleblower bill.
But these are not the only issues with the CVC. Seeking an overhaul of the anti-corruption mechanism, Kejriwal has written an open letter to the UPA chairperson describing the CVC as “a toothless body; it neither has resources nor powers to investigate and prosecute”.
Consider these facts about CVC:
* It is an advisory/recommending body, whose views are not binding on anyone.
* It is not an investigating agency. It works through the CBI and departmental vigilance officials but has no direct or effective control over any of them. CBI is under the administrative control of DoPT and the vigilance officials that of their respective departments. The only investigation it does on its own is civil works, as in case with the Commonwealth Games, but even here, it can and has only recommend action, not taken any.
* It can’t initiate inquiry against senior bureaucrats (joint secretary or above) for which it needs prior permission of the government, in what is better known as the “single directive”.
* It can’t direct investigation against the political executive.
* It has a staff strength of less than 200 to check corruption in more than 1,500 central government ministries and departments.
* It can’t register an FIR or investigate any criminal case; it deals only with vigilance or disciplinary matters.
“CVC is a mere ornamental body. It can’t even ask the CBI to register an FIR,” comments Vineet Narain, a veteran journalist who exposed the Hawala scam in the 1990s. “The government will never give autonomy to CVC or CBI. I had said it to the Supreme Court then”, he recalls. It was his efforts that led to the historic 1997 apex court judgment that bears his name and courtesy which CVC got statutory status, supervisory power over the CBI and the leader of opposition was made part of the selection process of the central vigilance commissioner.
Former CVC Pratyush Sinha admitted these shortcomings in an interview shortly before he demitted office in August. He and his predecessor P Shankar were part of a deliberation on the subject of “Deficiencies in the present anti-corruption system” at the India International Centre on August 10. It left nothing to imagination when they endorsed the recommendations which, among other things, said the “CVC should be placed under the superintendence of the Lokpal” to look after only the vigilance cases!
Karnataka Lokayukta Justice Santosh Hegde, former CEC J M Lyngdoh and advocate Prashant Bhushan were some of the other members of that panel. Their first two recommendations were: The government should immediately institute a “Lokpal” at the centre and the “Lokayukta” in the states (which don’t have them) with adequate powers to act as “apex, independent and effective” anti-corruption agencies.
If these are not enough, appointment of retired or about-to-retire bureaucrats as CVC has taken away even the pretence of it being a competent or impartial or non-pliable body to fight corruption. P J Thomas, the incumbent CVC, was appointed despite a red flag from leader of the opposition Sushma Swaraj, who is part of the three-member selection committee. Thomas was not only once an accused in a palm oil scam in Kerala, but days before he quit as telecom secretary, he had armed himself with a law ministry opinion that investigation into the 2G spectrum scam was beyond the purview of the CAG and the CBI. (The CBI is currently investigating the scam in which his former boss, telecom minister A Raja, is the prime accused.) What message does his appointment give to the corrupt of the country?
Given all these failings, entrusting CVC with an additional responsibility under the whistleblower bill raises serious doubts about the government’s intention to fight corruption. It must, though, be said that the bill makes a small concession by way of giving CVC powers to impose penalty on officials for not cooperating in investigation or revealing identity of the whistleblower and some power to punish with imprisonment in case of false or frivolous charges or “restoration of status quo ante” if a whistleblower is found to be harassed by way of transfer etc.
But these are of little consequence given the serious flaws in the whistleblower bill itself (See “Whistleblowers bill is self-defeating”). Moreover, these are not the real issues. The real issue is whether the CVC is serving any purpose at all and should we continue with it. If it was meant to be a corruption watchdog, it stopped barking long ago...once the first CVC, N Vittal, demitted office.
The real need is, as Justice Hegde et al proposed, for a Lokpal-like statutory body with “real” powers to investigate and prosecute the corrupt, especially senior bureaucrats and the political executive, because when they are involved the whistleblowers come to grief and the judicial process gets derailed. n
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