Lessons from the Thomas verdict

Supreme Court of India

R.K. Raghavan IN THE HINDU

The Supreme Court’s verdict pronounced on March 3 on the appointment of Central Vigilance Commissioner P.J. Thomas could not have come at a more appropriate time. Each day seems to bring up a new scam, and this confirms that the nation’s moral fibre is in tatters. Unless this dangerous trend is reversed, India’s future generations will become hostage to a situation where they cannot afford to be even minimally honest. India’s current political leadership of all hues is unequal to the challenge. Their focus is solely on grabbing votes with blatantly false promises and alluring freebies at the cost of the exchequer. Only the judiciary is equipped and empowered to stem the rot, notwithstanding the fact that it has its own internal problems to solve.

There are some uninformed sections that take umbrage at the Supreme Court ‘taking over’ governance. This is an appallingly myopic view. Had the judiciary not intervened as strongly and decisively as it did over the past few months, India would have become the laughing stock of the world. Recent judicial rulings have enhanced the country’s image and sent across the message that it means business in handling the scourge of corruption. Today, the rest of the world is watching India admiringly and enviously for the way it is moving forward in creating knowledge and skills. The country will forfeit this enormous goodwill unless it comes down heavily on those who are robbing its national wealth without any fear whatsoever. The recent judicial decisions, however harsh they may seem, should serve, at least partly, to restore outsider-confidence in India’s resilience and capacity to move ahead on the economic front.

No proof is any longer required to show that the choice of Mr. Thomas was downright arbitrary, illegal and laughable. It was an exercise of executive authority that was questionable, whatever standards you apply. The Supreme Court’s ruling leaves no one in doubt that fundamental facts that should have agitated the minds of those who are authorised by law (read the Central Vigilance Commission Act) to make such a vital appointment were glossed over for reasons of expediency. It is beyond comprehension why the High Power Committee (HPC) chose to wear blinkers. Virtually anybody could have been appointed, except one facing a criminal trial. The clearance by the previous CVC that is touted in defence of Mr. Thomas is but a pro forma requirement that applies to less important jobs in government. It was certainly not applicable to an ‘Integrity Commission,’ as the court has chosen to label the Central Vigilance Commission.

Tale in the notings

The revelation that two members of the HPC were not convinced that the position required a 100 per cent corruption-free individual is, to say the least, sad and dismaying. The records speak for themselves, and the Department of Personnel and Training (DoPT) could not be faulted. Its notings since the year 2000 had made it abundantly clear that Mr. Thomas in fact had a serious problem. This was ignored. Mr. Thomas took the stand in court that the fact that he had been made Secretary to government was proof enough that he was untainted. But he was greeted the very next day with the arrest of the former Telecommunications Secretary, Siddharth Behura, by the Central Bureau of Investigation in connection with the 2G spectrum scam. Integrity is by no means the exclusive preserve of the higher echelons in society, and certainly not the bureaucracy.

The magnitude of corruption in the higher levels of the civil services is actually enormous compared to that in the lower rungs. The arrest last week of the Chairman of the National Aluminium Company and his wife, and the seizure of significant quantities of gold and cash, are testimony to the need for anti-corruption agencies to focus on senior levels of the officialdom with greater aggression. The CBI is doing an admirable job on this front, and it deserves much larger annual accretions in manpower and more incentives to its staff. Their morale needs to be propped up substantially and meaningfully if the government is serious about tackling graft. In Parliament, the Opposition parties should concentrate on this agenda rather than seek to score brownie points over those in government who have grievously erred and lost their reputation for objectivity and clear thinking. This subject can do with a lot less of politics and more time-bound action, in order that everyone in high places would think twice before doing anything that is even remotely dishonest.

Debatable aspects

There are two aspects of the Supreme Court judgment of March 3 that are, however, debatable. The first is the direction that the pool for the choice of a CVC need not be confined to civil servants, and that it should be wider. Will this give heavily politicised individuals who may otherwise be known for their personal integrity, the opportunity to infiltrate the institution? This issue remains in the realm of conjecture. Given the proclivity among those in power or outside to look at every appointment through a political prism, I fear that the provision to appoint even a person who is not a civil servant to the office could become a mischievous tool in the hands of an unscrupulous executive. This direction to expand the zone of consideration will have to be read along with the Supreme Court’s rejection of the plea to make the appointment on the basis of a consensus. Indeed, giving the veto power to one member could stymie the process of selection, and this is not desirable. At the same time, the experience in the case of Mr. Thomas makes you wary of the possible designs of those in power to steamroll the process just to gain political mileage.

Recent events should convince the concerned citizen that maturity and magnanimity do not necessarily go with authority. This is why I would still plump for statutory recognition of the need for a consensus in making the appointment. This may seem preposterous, but is worth a trial. Even if this process leads to several names being rejected and a consequent delay, ultimately the Prime Minister, the Home Minister and the Leader of the Opposition should be able to agree on one name. The CVC’s job is not a fire-fighting assignment. Even if the position remains vacant for several months because of a lack of consensus, the heavens will not fall before an acceptable candidate is found. And there are other members of the Commission who can hold the fort till a chief is appointed. Let us hasten slowly and arrive at a universally acceptable candidate, rather than be saddled with the wrong individual who is surrounded by controversies.

The court judgment reinforces the widespread feeling that the judiciary is the last bastion of Indian democracy. It must be guarded zealously and at all costs. Let not petty minds be allowed to take pot-shots at it. Or else India will surely be on the road to disaster.

Chief Justice S.H. Kapadia will go down in history for his unparalleled courage and candour. He has no agenda except to bring order to a derailed nation. I understand that total reform in the police system — on the lines set out by the court’s landmark decision of September 22, 2006 — tops his wish list. This is heartening. The whole nation, especially the poor, will be ever-grateful to him if only he can achieve this aim before his term ends. Fortunately, he will not have to labour much to do this. He has a ready blueprint on his desk. What he needs to do is to sternly enforce the deadline that he has set for this. Or else the States will continue to dodge reforms, with a view to continuing the misuse of the police force for narrow political ends. In such a situation, most of the Indian police will remain people-unfriendly and dishonest. The distinguished Chief Justice knows that this task brooks no delay, because the victim of crime goes first to the police and only later to the judiciary. This is the crux of the problem.

(Dr. R.K. Raghavan is a former Director of the Central Bureau of Investigation.)



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