Governance Now, March 1-15, 2011
We have to thank CVC P J Thomas for reminding us that those holding certain high positions can indeed stand up to the government, that corruption watchdogs cannot be eased out at will. Now, let us put this knowledge to good use
Scams are scams. There are no good scams and bad scams. But even then, in the brouhaha over the 2G, S-band, CWG and Adarsh scams, another scam – that has embarrassed the government no less – has not been recognised for being the beacon of hope that it is: the appointment of P J Thomas as the central vigilance commissioner!
A month and half ago, the government was busy weaving a web of deception to get out of the mess it had created by its choosing and doing. First, it gave a clean chit to Thomas when protests mounted; then refused to accept the supreme court’s show-cause notice to Thomas on his behalf. When these things didn’t help it questioned the apex court’s very jurisdiction in “questioning” the government’s authority to appoint and Thomas’ suitability and integrity. Finally, it ended up with an affidavit that said the selection panel that consisted of the prime minister, the home minister and the leader of opposition had no information about the pending charge sheet against Thomas. Leader of opposition Sushma Swaraj jumped into the fray, which led to an exchange of words between her and home minister P Chidambaram. More egg on the government’s face as Chidambaram ended up confirming that the panel had knowledge of the charge sheet and that it was even discussed at the meeting.
It was by now clear that the government wanted desperately to see the back of Thomas in order to contain the damage caused by its own bullheadedness in appointing him. It hinted, it pleaded and it even planted media stories that Thomas would resign “within 48 hours”. When the pressure of 24x7 media badgering did not help to get rid of Thomas, the government, it is said, even tried negotiating a “compensation package” for him if he quit on his own. But this didn’t work either. Thomas refused to resign and boldly declared at the end of all this: “I am still the CVC.”
Indeed Thomas is still the CVC, though there is a chance that he might not continue to be post March 3, the day the supreme court will pronounce its judgment on a PIL challenging his appointment.
Whether or not Thomas continues to be the CVC beyond March 3, is immaterial. What is material to the fight against corruption is that he has, unintended of course, exposed the helplessness of the government of day when it comes to removing people occupying some key posts that deal with corruption in the country.
Let me say this again, because this bears repetition. In the way the government grovelled before Thomas it has demonstrated a fact that often escapes our attention: that when it comes to the chiefs of top anti-corruption agencies in the country, the government can appoint them, it just cannot get rid of them!
If every cloud has a silver lining, in the murky Thomas episode it is this revelation.
The CVC is not a constitutional post; but it is a statutory one. Thomas has been appointed for a fixed tenure (of four years). He can be removed only by following a complicated laid-down procedure and that kicks in only if there are serious charges of corruption or misuse of office. This post of the CVC was tenure-fixed just to ensure that the incumbent can function without interference from the government.
Imagine for a moment, that if Thomas, the biggest corruption-buster of the country, who oversees the functioning of our premier investigative agency CBI, were to stand his ground on a corruption case instead, what turn our fight against corruption could take! Would we still be agonizing and fretting that corruption is a way of our life and that nothing short of a DNA transplant would help us Indians? Would our corruption crusaders like Arvind Kejriwal and Prashant Bhushan (not to belittle the importance of their brave struggle) still be talking about a Lokpal Bill? Or would Thomas’ predecessor Pratyush Sinha have felt the need to justify four years of twiddling his thumbs while in the high office because the “CVC is merely an advisory body” and join the anti-corruption crusade post-retirement to campaign for more power and bite for the CVC? Not a chance.
It is delusional and falling into the now familiar trap to believe that our corruption watchdogs have no teeth; that the politicians in power interfere, immobilise or misuse them or that nothing short of a systemic overhaul is required. They need more teeth, yes, but to say they are toothless is a fallacy, actually a clever camouflage for the lack of another critical and felt shortcoming: the lack of spine. We do need to tweak some laws. We do need, for example, to kill, bury and obliterate the “single directive” that makes the government’s sanction mandatory to prosecute any official of the level of a joint secretary or above. This single directive is a big boon for the babu and an equally big curse for India. (It is also the reason why Thomas is today our CVC!) We do need to give the CVC an investigative arm and the power to prosecute. Likewise we do need to enact a new Lokpal law that civil society has been demanding. But, the point is, even without these changes or any other changes, we can fight corruption very effectively and decisively. Thomas has shown how.
Many would recall how a “lapdog” T N Seshan became the “bulldog” of democracy overnight in the 1990s. Single-handedly, without any additional power, he transformed a docile constitutional body, the election commission of India, into a powerful institution that the politicians came to dread. He cleaned up the entire electoral process which used to be a free-for-all jamboree. So much so that all the political parties conspired to convert a one-member CEC into a three-member body in 1993. That didn’t have the slightest impact on Seshan, who retired in 1996. Such was his impact that his legacy endures till today. The CEC remains one of the most respected institutions in the country. Those who saw the dramatic transformation marveled at the powers that had always been vested in the CEC but had been largely wasted.
N Vittal did the same to the CVC. When he assumed charge in 1998 (retiring in 2002), the CVC wasn’t even a statutory body. Few, in fact, knew what it was or that it was there. He created a website for his organization and put out the names of mighty IAS and IPS officers on his corruption watchlist because the government deliberately sat on his request for prosecution. It sent a shiver down the spine of the infamous iron-frame of the bureaucracy. When a politician complained against the then minister and feared criminal lawyer Ram Jethmalani, he sent it to the then CBI director R K Raghavan and got it investigated.
Before Raghavan, Trinath Mishra was the director of CBI. In November 1998, he had the residence of the mighty Dhirubhai Ambani raided to inquire into the leakage of sensitive official documents. Mishra did not feel the need to check with prime minister Atal Bihari Vajpayee or home minister L K Advani because, as he told some people later, it is not the CBI director’s job to seek political sanction for his every move. Of course, within weeks of this daredevilry, Mishra was shunted out. Mishra was just an “acting” director and at that time he did not even enjoy the safety of a fixed tenure. That came about with the CVC Act of 2003.
Contrast that with what has happened with the CBI in the telecom scam. The agency sat on the case for two years though it had ample evidence of wrongdoing. When the supreme court moved in and directed action, it arrested a former minister and his associates and a businessman. It has questioned top corporate houses and is moving at a blinding speed. The CBI could move so fast only because, as former minister Arun Shourie says, it had the facts all this while but was waiting for political signals. Imagine what a Trinath Mishra could have done in this case!
The good news for a nation that is looking for salvation from corruption is this: it is not just the CVC who is tenure-protected. A clutch of important posts, all dealing with corruption, are similarly politician-proof. The directors of CBI and enforcement directorate, cabinet secretary, home secretary, defence secretary and foreign secretary are all tenure-fixed posts. Once appointed they cannot be removed for two years. Similarly the chief election commissioner and election commissioners have a six-year tenure (unless they attain age of superannuation before). The heads of TRAI, SEBI, IRDA, RBI have five years.
It is now much easier for all these individuals to stand their ground and enforce the rule of law as Seshan, Vittal and Mishra did. Except that they don’t. Why? Shourie gave a good answer at a Delhi seminar: “There is a famous Zulu proverb. ‘A dog with a bone in his mouth can’t bark.’ Similarly, a dog with a bone in front of him can’t bark either.” Unfortunately, now that they are secure in this job, most officers are interested only in the next. In spite of their offices being ring-fenced, most people holding key positions lust for post-retirement position, some even hunger a post-post-retirement position. Vittal said in an interview last year that there are four key bodies to fight corruption – courts of law, election commission, CAG and CVC. If they do their job well, the fight against corruption will have made major strides.
In the fight against corruption, it would do us all good if we looked at what is there rather than what should be. We have some of the top jobs in this country protected from politicians. Now we need just a few officers with spines of steel to do their jobs the way they are supposed to instead of hankering for the next job. If at all we need changes in our laws to fight corruption, let us begin by making our top officers ineligible for a post-retirement job for a specified number of years. In this age of increasing life-expectancy we cannot ask a 60-year-old to vegetate so they must be paid handsome compensation for denied opportunities.
Then, may be, we will find those 10 people with spine. And for making us realise that there is a way to deal with corruption, thank you, Mr Thomas! n
prasanna@governancenow.com
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