Independence, probity intrinsic to public office

Indian Parliament Building Delhi India
Image via Wikipedia


A politician with chargesheets pending against him in a corruption case, yet getting a plum ministerial post does not surprise many in this country when corruption has spread its tentacles far and wide, restricting the growth potential of the country. But when it came to P J Thomas presiding over the office of Central Vigilance Commission (CVC) — the statutory corruption watchdog given teeth by Supreme Court in its 1997 Vineet Narain judgment — there was a din on the ground that there was a chargesheet pending against him in the Kerala palmolein import scam.

Why this double standard in measuring the suitability of a person to an important post, be it the Council of Ministers or CVC? Did not Lalu Prasad remain railway minister at the Centre even when the fodder scam trial was going on against him? In the case of Thomas, the incongruity of the person’s suitability, not eligibility, to become the chief vigilance commissioner was the question, given the duty cast on the body by SC to protect an endangered quality — maintaining probity in public life.

Let us take a look at what SC expected of CVC in its judgment while entrusting it the important role of overseeing CBI’s anti-corruption work:

CVC shall be given statutory status and will be responsible for the efficient functioning of CBI
CBI shall report to CVC about cases taken up by it for investigation, cases in which chargesheets are filed and their progress

Recommendations for appointment of CBI director shall be made by a selection committee headed by the CVC with home secretary and secretary (personnel) as members. The final selection shall be made by Appointments Committee of Cabinet from the panel recommended by the selection committee. These three recommendations will tell the common man, witnessing a wide range of investigations being undertaken by CBI at a time when scams haunt the political and bureaucratic spectrum, the importance of a clean CVC.

Thomas is clean and has impeccable integrity. No one can probably question his eligibility to head the CVC. But, is he suitable? Like any honest person, Thomas is an angry man. And he is getting angrier with every question aimed at his suitability, which he mistakes it as being aimed at his eligibility for the post of CVC.

But how can a person, facing a chargesheet in a corruption case, even if the charge is criminal conspiracy, oversee the functions of CBI in corruption cases? He may have recused himself from overseeing investigations into the brazen 2G spectrum scam, but can he do it in every corruption case? After all, the chargesheet against Thomas is there since 2000 and is not going to vanish in a hurry, given the slow process of trial courts.

And, can Thomas head the selection panel to choose the director of CBI or empanel IPS officers who, like him, have impeccable integrity but have a chargesheet pending? What will he ask the concerned department about non-grant of sanction for prosecution in corruption cases, as many as 300-odd are pending? What if they reply that they are going to grant sanction against him for prosecution in the palmolein import scam? In the Vineet Narain verdict, SC had said, “Holders of public office are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people.”

So, whatever Thomas may say explaining his own integrity and honesty by producing a dozen certificates, the core question will remain: Is he suitable to head CVC when a chargesheet, howsoever politically motivated it might be, is pending against him?

‘Needed: a single, empowered Lokpal to fight corruption’

Vidya Subrahmaniam in THE HINDU

Santosh Hedge, Prashant Bhushan have drafted alternative bill

Existing system “flawed,” the probe being divided among multiple, ineffective agencies

Draft aims to bring whistleblower protection within Lokpal ambit

New Delhi: Santosh Hedge, Lokayukta of Karnataka, and Prashant Bhushan, Supreme Court lawyer, have drafted an alternative Lokpal bill — there have been several official versions — with the aim of replacing the existing, mutually exclusive anti-corruption agencies with a single, autonomous apex body empowered to investigate and prosecute politicians, bureaucrats and judges.

The draft bill also aims to bring whistleblower protection, currently in the form of a separate bill, within the ambit of the Lokpal.

The draft bill, recently released to the media by the non-profitable NGO, Parivartan India, has been sent to the Prime Minister and the Chief Justice of India. In identical letters, dated December 1, to Manmohan Singh and Justice S.H. Kapadia, Arvind Kejriwal of Parivartan and other signatories described the existing system of investigating corruption as deeply flawed what with the task being divided among multiple, ineffective agencies.

The letters pointed out that while the Central Vigilance Commission (CVC) and the Comptroller and Auditor-General of India (CAG) were independent, they were rendered toothless, being advisory bodies that were invariably overruled by the government in power. On the other hand, the Central Bureau of Investigation (CBI) was dependent on the government for permission to investigate and prosecute. The CBI lawyers were appointed by the Law Ministry and they reported to it. This explained the demand for Supreme Court-monitored investigation into the 2G spectrum scam.

The letters said this led to a situation where the “high and mighty” never got punished while the poor were harassed for petty crime in police stations. “In view of this state of affairs, we need a total overhaul of the anti-corruption delivery system,” the signatories said.

The draft bill proposes a single, autonomous Lokpal combining within it the powers and mandate of the CBI and the CVC and with jurisdiction over politicians, bureaucrats and judges. Besides being able to independently initiate investigation and prosecution without prior permission from any other agency, the body will act as an appellate authority in respect of public grievances linked to bribery.

The whistleblowers, currently under the supervision of the CVC, will also come under the protective purview of the Lokpal. The members and the chairperson of the Lokpal, 11 in all, will be selected by a transparent and participatory process and any complaint of wrongdoing against a member will be required by law to be investigated and acted upon within a month through a transparent process. In the event that the charges are upheld, the loss to the exchequer by the officer’s wrongdoing will be recovered.

Explaining why whistleblowers were brought under the draft bill, Mr. Kejriwal said they mostly reported political corruption. “But because they are under the CVC, which has no jurisdiction over politicians, they have no effective protection and many of them live in danger. The draft bill aims to rectify this unfortunate situation.”

Strengthening the CAG’s hands

Ramaswamy R. Iyer in The Hindu

A set of suggestions to ensure the effective functioning of one of the nation’s most important constitutional functionaries.

The institution of Auditor General, established in 1860, became Comptroller and Auditor General of India (CAG) with the commencement of the Constitution. On the occasion of the initiation of year-long celebrations to mark 150 years of the institution, may one, as a former member of the Indian Audit and Accounts Service, put forward a few suggestions (numbered for convenience) aimed at enhancing the effectiveness of the institution?

1. It is a matter of regret that the CAG, regarded by Dr. B.R. Ambedkar as the nation’s most important constitutional functionary, is not as prominent in the public consciousness as the Chief Election Commissioner or the Central Vigilance Commissioner. (At the present moment, the 2G spectrum allocation controversy has brought the CAG into some prominence, but this temporary salience may not last very long.) It seems desirable that the findings of Audit should not only be reported to the President and Parliament as close to the events as possible, but also made known simultaneously to the media and the public, with some explanations to aid understanding. It is for the CAG to decide how best the work of the Indian Audit Department, which the CAG heads, could be made more visible and intelligible. This is not to gain publicity for itself, but as a means to make it more effective. (Timeliness is important in this context. While audit must necessarily take place after the event and cannot be literally concurrent, the closer the reporting is to the event the more effective it is likely to be.)

2. There is now a vast accumulation of Audit Reports submitted over the years both at the Centre and in the States, and not all the matters reported upon have been discussed in Parliament or in the State Legislatures or in the media. It seems desirable to rescue at least some of the important cases from falling into oblivion. How best this can be done must be left to the CAG, but many past errors, deficiencies, irregularities and so on may still deserve attention despite the passage of time. An effort to salvage at least a part of the valuable work done during the last several years seems necessary.

3. The Audit Department is often exhorted to shed its narrow perspective and look at the big picture. That criticism is to some extent echoed even within the Department. While acknowledging the importance of a larger vision and a broader perspective, it must be pointed out that it is basic (or ‘routine’ or ‘pettifogging’) audit that brings to light irregularities, improprieties and fraud. That is the Department’s core function, and the pursuit of higher aims should not be at the expense of the core function. Nor should the auditor feel uncomfortable or apologetic about performing the often deprecated but essential job of ‘fault-finding.’ The present CAG ought to raise the status of the humdrum audit function in the value system of the Department, and persuade the Executive government and Parliament to realise that this is a vital part of the Department’s work.

4. There is of course the opposite criticism of overreach when Audit widens its horizons and attempts to examine efficiency or ‘cost-effectiveness’ or propriety. The criticism is untenable because any meaningful audit must necessarily go into these aspects, and the supreme audit institutions of many countries do so as a matter of course. A further and recurring refrain is that audit has an inhibiting effect on decision-making and paralyses initiative. The answer to such criticisms is not to whittle down the audit function but to ensure that it is performed carefully and well. It needs to be realised that audit is an important, indeed vital, function. It is not a necessary evil that is to be tolerated, but a positive good that is to be welcomed.

5. A forgotten aspect of the audit function is that of discovery or detection. Speaking subject to correction, it is difficult to recall any recent instances of a major scandal having been ferreted out by the audit process. Most of the cases that have figured in public debates have come to light in other ways. The CAG’s reports have come later and have in some cases confirmed and substantiated or modified the general impression of wrongdoing already created by the media. There is a need for the Audit Department to rediscover the role of auditors as financial and accounting detectives.

6. When faced with executive intransigence (denial or delays in the provision of documents or information, evasive replies, and so on), the CAG does not appear to have many weapons in his armoury to compel cooperation. That, at any rate, is the general impression. In this writer’s view, the CAG is not as helpless as this situation seems to indicate. The constitutional provisions and the provisions of the CAG’s Act do hold the potential to make the CAG a forceful authority, and it is for the CAG to make full use of that potential. Remember how T.N. Seshan transformed the Election Commission using the relevant constitutional and statutory provisions, and how N. Vittal left the institution of CVC somewhat stronger than it was earlier. If the present CAG is able to do for the institution what Mr. Seshan and Mr. Vittal did for their respective institutions, he will go down in history as the most effective CAG since the adoption of the Constitution.

7. A limitation arises from the fact that Audit is an examining agency, not an investigating one. The Indian Audit Department scrupulously confines itself to looking at the books, documents and papers submitted to it. The Department refuses to pursue its inquiries beyond these and undertake even limited checking outside the books. While this approach is valid in principle, in practice there is a case to relax it somewhat and do a degree of independent checking or verification of the facts stated in the documents. The supreme audit institutions in some countries do this. It is for the CAG to consider whether there is merit in this suggestion, and if so, how it should be adopted, and with what safeguards.

8. Lastly, corruption, even more than fraud, is the national malaise. Audit is not the prime safeguard against it; other investigating agencies are charged with the responsibility of dealing with it. However, given the wide prevalence of this deadly disease, it seems desirable that the Audit Department should do what it can to counter it. Though corruption is clandestine and takes place outside the books, it is likely to leave tell-tale marks here and there. Even from well-maintained books, a whiff of corruption may rise. Audit can remain alert to such indirect indications and develop a nose for the smell of corruption. The provision of such an orientation to Audit is a matter for the CAG to consider.

These suggestions, aimed to enhance the effectiveness of the CAG, are respectfully offered to that constitutional functionary for consideration.

In conclusion, there is one point that the government, Parliament and the Public Accounts Committee will need to consider. It seems self-evident that the process of selection of such an important constitutional functionary should be open, objective and credible. This is best ensured by a committee procedure of the kind statutorily laid down for the Central Vigilance Commission and the National Human Rights Commission. This suggestion has been made earlier, but there has been a strange lack of interest in the matter. This issue cannot be examined in detail here. (Please refer to the author’s article in the Economic and Political Weekly, issue of December 31, 2005.)

This suggestion is meant for future appointments and implies no reflection on past appointments. This writer holds some of the incumbents of this honoured position in high regard.