Judges may be kept out of Lokpal radar


It is now certain that the higher judiciary wouldn’t be under the purview of the proposed Lokpal. Consensus to this effect emerged at a roundtable held here in which members of the civil society, including four non-government members of the Lokpal Bill drafting committee, two former Chief Justices of India and many prominent citizens participated.

Another important issue on which there was “near unanimity” at the meeting was the procedure for appointment of Lokpal. “Almost everybody, including some members of the drafting committee, agreed that the procedure for appointment of Lokpal as provided in the Jan Lokpal Bill may not work. There was near consensus on having a search committee to first shortlist candidates and then a selection committee headed by the Prime Minister to make the final selection,” sources present in the meeting told The Indian Express.

The selection committee, a source said, could comprise the Prime Minister, presiding officers of the two Houses of Parliament, Leaders of Opposition in the two Houses of Parliament, two Judges of the Supreme Court and two eminent citizens to be nominated “unanimously” by other members of the selection panel.

However, the participants in the roundtable were sharply divided on whether the office of the Prime Minister of India should be under the purview of the Lokpal. Karnataka Lokayukta Justice Santosh N Hegde, former Union Law Minister Shanti Bhushan, lawyer Prashant Bhushan and RTI activist Arvind Kejriwal, all members of the Lokpal Bill drafting committee, participated in the roundtable.

Speaking to mediapersons at the end of the meeting, former Chief Justice of India J S Verma said there was consensus that higher judiciary should be kept out of the Lokpal’s purview. “While there is no question that some measures should be in place to make the judiciary accountable, it was felt that to curb corruption in the higher judiciary, a better mechanism is required,” he said. To a question on whether the four members of the drafting committee who participated in the confabulation were in agreement on the issue of exclusion of judiciary, Loksatta founder Jayaprakash Narayan, who was one of the organisers of the roundtable, replied in the affirmative.

On the issue of whether or not the Prime Minister should be under the purview of the Lokpal, both Justice Verma as well as former CJI M N Venkatachaliah said while the government itself seemed agreeable to this idea, it was felt by many of those present at the roundtable that the Prime Minister shouldn’t be open to any investigation by the Lokpal in the interest of political stability as well as the fact that he is the country’s face in the international arena.

“But, there were strong views from both sides on this issue,” Venkatachaliah said. The two former CJIs, incidentally, were among those who opposed the demand to bring in the PM under the purview of the Lokpal. It is learnt that many participants in the roundtable conference were of the view that the proposed Lokpal should take up only “sensitive” cases, including those involving huge bribes and those affecting the prestige of the country. “Nobody would like the Lokpal to deal with cases of bribe involving a few thousand rupees,” observed a participant. On the contentious issue of whether the CBI’s anti-corruption wing should be merged with the proposed Lokpal, the majority sentiment was that the CBI should remain a “distinct, independent” entity. “However, it was felt that the CBI should be freed from government control,” said a source.


Jan Lokpal bill: addressing concerns

Indian Parliament Building Delhi India

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Prashant Bhushan in THE HINDU

The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.

A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare‘s fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.

The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.

While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government’s sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.

The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal’s orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.

There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal’s investigations. That is why in the draft bill Ministers were sought to be kept out.

One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.

It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.

One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.

(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)

Citizen Anna and agent Prashant


In fashionably liberal circles, Prashant Bhushan is an authentic modern hero, the people’s advocate who uses the killer argument to avenge the aam admi on the bloodless battlefield of the Supreme Court. Among his lawyer peers, Bhushan is somewhat disdainfully seen as an “activist who takes up causes, not cases”. Some politicians call him a “self-righteous” busybody with a penchant for the sensational storyline. Some others loathe the 55-year-old, who helped draft the Jan Lokpal Bill, as an anarchist impelled to bring down the system. To the man on the street, Bhushan is all but invisible.

But the results of his relentless war on what he calls “evil and venality” are all around. There appears to be a decided people’s clamour for the anti-corruption Jan Lokpal Bill he wrote with former Supreme Court justice Santosh Hegde. And at the beginning of March, Bhushan effectively humbled India‘s chief political executive—the prime minister—as well as forced the highest court in the land to do his will.

With his trademark cautiousness, Bhushan admits this might be as good as it gets for a knee-jerk activist with “a passion for justice”. He acknowledges “I’ve been unwittingly catapulted into a kind of position of a hero, which I can see from the manner in which people are now wanting to interview me, as well as talk to me in the courts, congratulate me etc.”

It is safe to say Bhushan has made a career out of public interest litigation (PIL) having self-confessedly taken up “about 500 cases over 15-16 years” that deal with ‘good’ causes (environment, corruption, the Bofors case, Narmada dam). He made a career but not a fortune because he doesn’t charge for public interest cases, which he admits “take a long time, go on for a long time… more time than normal cases”. Effectively, therefore, he admits to spending just 25% of his time on paying cases, charging 5% of what other lawyers charge and earning just “enough to take care of my office expenses at any rate”.

Clearly, he is magnificently unworried about money. He lives in simple but great comfort with his former lawyer wife Deepa on one floor of his father’s house in Noida. The oldest of four children of well known lawyer and Prime Minister Morarji Desai’s law minister Shanti Bhushan, Prashant lives the dream described by American novelist Edith Wharton — the only way not to think about money is to have a great deal of it. This is the starting point of the difference in Bhushan’s worldview and that of people he lumps together as “professional lawyers”. Most of them, he says severely, “are amoral, morally vacuous and they’re not bothered whether their client gets justice nor are they bothered whether their client’s cause is just or not.”

Bhushan’s fellow lawyer in the Supreme Court, Harish Salve, acknowledges the grubby and distinct reality of being a “commercial lawyer (not an activist). Sometimes, even we’re not convinced our clients are right”. Contrast that with Bhushan’s lofty refusal to “take up a case unless I feel my client is at least morally right.” America’s leading expert on the Indian legal system and London School of Economics Centennial Professor Marc Galanter says Bhushan is quite remarkable for “being so empowered.” Unlike many great—and effective—activist lawyers, notably the late William Kunstler who fought for civil liberties, black people and native Americans, “Prashant’s circumstances have given him (financial) independence, Kunstler had the imperative of making a living. I find it admirable that Prashant has grasped the opportunity”.

And how. Just months ago, he successfully challenged the Prime Minister and Home Minister’s decision to appoint PJ Thomas as head of the country’s eight-year-old premier integrity watchdog, the Central Vigilance Commission. He was able to prove that the appointment of a man facing corruption charges to an anti-corruption institution was laughably inappropriate.

In mid-December, Bhushan managed to convince the Supreme Court it must monitor the Central Bureau of Investigation‘s (CBI) inquiry into the 2G spectrum allocation scandal, which the lawyer argued had only benefitted the “favourites amongst the favoured”. The Court even agreed with Bhushan that the CBI had dragged its feet on investigating the mega scandal. It was arguably just the fillip needed to start nailing those alleged to be guilty. From then on, it took the CBI just six weeks to arrest former telecom minister A Raja.

Bhushan wasted little time taking aim at his next quarry in the 2G scam. On March 1, he told the Supreme Court that the CBI was behaving suspiciously by failing to investigate the direct involvement of the Tata group in the entire matter. Justices G S Singhvi and A K Ganguly assured him the case was “progressing in the right direction. Prima facie there is no fault in its investigation. We are quite conscious that CBI must probe every aspect of the case.” Bhushan had made his point. But he is not triumphant. Possibly just a tad self-satisfied. He talks about his own “moral authority” and the fact that his “responsible and consistent” campaign against judicial corruption means judges “both respect and fear you (him)”. Despite being mild-mannered and retiring, some might find him as boastful as an Arab dictator: “Even judges today are afraid of throwing in jail someone who they know is perceived to be right by the people.”

Chiefly though, he is unyielding and as a friend describes him, “all heavy seriousness” about his role in India today. The science fiction addict who once wrote a turgid novel of the genre, is clear that he is an “agent of change, a catalyst”. The IIT Madras student who left halfway, went on to Princeton to study philosophy and economics but couldn’t stay the course, is steady as a rock about his destiny. He objects to the adjective “messiah”, saying “it can mean many things. I see myself as a person who tries to see the connections between what is happening and tries to spread the message that I feel should be spread about what is wrong with our economic policies, what is wrong with our judicial system.”

He studied law at Allahabad, doing part of the course before Princeton and taking his final exam on his return. He started early down the public interest road, inspired partly by his father’s views on justice, probity and corruption. Early on, he fought limestone quarrying in the picturesque Doon Valley. Then, there was the Bhopal gas tragedy litigation. He was Delhi president of the People’s Union for Civil Liberties, one of India’s oldest human rights organizations.

Bhushan is unembarrassed to be asked if activism is an indulgence for those who can afford it, chiefly people who don’t need to worry about feeding the family or putting a son through Oxford (Manav, oldest of his three sons, is studying Math there). “Activism certainly needs to be supported—by like-minded people or grants…I don’t need to seek grants because I come from a very well-to-do family”. Salve, who has faced Bhushan across the courtroom many times (“cases go up to two digits”) magnanimously says that “we need the Prashant Bhushans, we need people like him. Every system needs crackpots”. Bhushan himself describes Salve as his chief detractor but Salve insists that Bhushan is generally to be admired because “he takes every cause, good, bad or indifferent and argues it with passion.”

Salve’s words of praise may sit oddly with his deeds. In his own words Salve “drew the Supreme Court’s attention” to Bhushan’s September 2009 interview to a magazine in which he claimed “half of the last 16 Chief Justices were corrupt”. Bhushan now faces contempt of court proceedings. Salve denies animosity. “We’re all on the same side, as citizens, we’re against corruption but I think that he is sometimes out of sync with economic reality.”

This fierce romantic idealism seems to annoy Bhushan’s detractors most. Like America’s self-appointed “radical lawyer” William Kunstler, Bhushan is accused of being a “publicity seeker”. Some are suspicious of his chiming with writer Arundhati Roy to recall India Rising to right rather than jingoistic might. Some say the Jan Lokpal Bill would have been drafted with or without Bhushan. Others say the main opposition BJP would have achieved the same results on the 2G scam had Bhushan not managed courtroom success. His chief critics say he’s not really a serious lawyer at all, just a “cause-pleader”. But Salve will have none of this. “He is a good lawyer. His arguments are crisp and to the point. He doesn’t get into high philosophy and jurisprudence. He picks his cause and he bangs it hard”.

Bhushan, unemotional to the point of bloodlessness, bangs on. From his third floor office opposite the Supreme Court, he looks dreamily at the pigeons on the window sill: “There are some straws in the wind. There is reason for hope. Today you can sense a kind of arousal and excitement even among the urban middle class which one didn’t see earlier. There’s resistance everywhere against every kind of loot and degradation.”


Independence, probity intrinsic to public office

Indian Parliament Building Delhi India

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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.

Source:     http://www.hindu.com/2010/11/25/stories/2010112563061200.htm