The Hindu : Protecting the bureaucracy

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Friday, Mar 07, 2003

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Protecting the bureaucracy

By Rajeev Dhavan

The Lok Sabha has now provided a legislative basis for the Single Directive. The double protection of the bureaucrats is complete.

INDIA'S BUREAUCRATS have done it again. They have managed to protect themselves — no less their political bosses — from rigorous investigation for corruption. On February 26, 2003, the Lok Sabha passed the Central Vigilance Commission (CVC) Bill by voice vote. It is difficult to understand how legislation of this, or any, nature can be enacted by voice vote — especially when it is contested. Even if time-consuming, Parliament should vote on issues to profile each MP's vote rather than by a collective lungpower adjudged by the delicate ear of the Speaker.

The story of bureaucrats protecting themselves from investigative exposure goes back many decades. The Criminal Procedure Code, 1974 — and its 1898 predecessor — provides that Government servants cannot be prosecuted without sanction from the Government. But, the internal arrangements go deeper. The bureaucracy invented what is called the Single Directive whereby even an investigation for corruption of an officer above the rank of Joint Secretary cannot be carried out without prior sanction from the Government. Thus, senior bureaucrats have double protection — both from investigation as well as prosecution. Neither investigation nor prosecution can take place without permission or sanction. The Lok Sabha has now provided a legislative basis for the Single Directive. The double protection of the bureaucrats is complete.

Over the years, the bureaucracy has been vigilant in its own favour. The first phase of its over-zealousness is the sad trajectory of the Lok Pal Bill. This innovation was mooted in 1963. After elaborate debates in 1968, it was decided to have a comprehensive Lok Pal (ombudsman) for bureaucrats and Ministers. After the Emergency, the Lok Pal proposal was skilfully directed against politicians rather than civil servants. Bhupesh Gupta in a dissent to a parliamentary report rightly observed that bureaucrats must have been laughing all the way. In 1988, the Congress abandoned on flimsy grounds the entire Lok Pal proposal which did not survive revival until V.P. Singh's rule. In the 1990s, the proposal for a Lok Pal floundered for style precisely because controversies have been shifted from bureaucratic corruption to ministerial and prime ministerial corruption — much to the delight of the civil service.

But, after the whimpering demise of the Lok Pal proposal, a new challenge was posed by the Vohra Committee Report which exposed massive corruption and political and related gangsterism at all levels of governance. Although Justice Ahmadi's judgment in Dinesh Trivedi's case (1997) failed to deal with the implications of this incisive report effectively, a new controversy arose as an offshoot of the hawala imbroglio. The hawala case implicated the top politicians of the country — including L. K. Advani and others now in power. They eventually got off on the basis of a brilliant argument in court by Ram Jethmalani that the jottings in a lay account book did not constitute conclusive proof of the hawala transactions. But the hawala case in the Supreme Court lived on.

On December 8, 1997, the Supreme Court delivered a comprehensive judgment through Justice Verma on the hawala case in which it recommended the establishment of the CVC which, rather than the Government, would monitor the CBI. But, more significantly, it examined the Single Directive to lay down that the requirement of prior sanction for even investigating civil servants was arbitrary, unreasonable and over-protective. The civil service was most apprehensive about this striking down of the Single Directive. On March 19, 1998, the BJP-led Government came into power. Now the plot thickened. When the matter came before the Cabinet on April 8, 1998, a stalling exercise was undertaken to refer the matter to the Law Commission (then headed by Justice Jeevan Reddy) rather than implement the Court's judgment. As the Law Commissioner, Justice Reddy had taken stances on electoral reform and, later over anti-terrorism to the liking of the Government. The civil servants sought refuge in the Law Commission — as a kind of appeal from the Supreme Court. The Law Commission's Report was submitted on August 13, 1998. It approved of the Single Directive being done away with — amongst other proposals which were not to the liking of the civil servants. Thus, the Law Commission Report was suppressed and not brought to the notice of the Cabinet. The `Secretaries' Bill which protected bureaucracy was presented to the Cabinet on August 20, 1998. This wilful act of suppression would have lain where it was, but for the vigilance of Mr. Jethmalani — then the Law Minister. On August 23, 1998, this ploy of suppression was exposed by Mr. Jethmalani. Justice Reddy also revealed his discomfiture about his proposals not being placed before the Cabinet. But, the Secretaries to the Government moved first. On August 25, 1998, the CVC Ordinance, 1998, was promulgated which gave the Secretaries everything they wanted — including the Single Directive. The fraud became a fait accompli. When the matter returned to the Supreme Court on September 22, 1998, the Attorney-General, Soli Sorabjee, admitted to the need for some fine-tuning. This, by itself, was a euphemism. What was needed was not fine-tuning but a complete overhaul in the light of the Supreme Court's hawala judgment and the Law Commission report.

Unfortunately, no overhaul was effected. From April 4, 1999, the CVC became a non-statutory body headed by N. Vittal — a force to be reckoned with but rendered ineffective by the absence of adequate powers. And, so, the matter meandered to a Joint Committee of Parliament which retained the Single Directive and limited the Government's supervision of the CBI to matters relating to the Prevention of Corruption Act, 1988. The CVC was to be enlarged. Kuldip Nayar's dissent on the recommendations expressed well-founded fears.

Whenever a Government wants to kill a proposal or ensure that it loses its vitality it lets the proposal drift. This has happened with the Lok Pal initiative. This is equally true of the Women's Reservation Bill which fumbles for recognition. However, when the Government wants to act, it even pre-empts the parliamentary process. This is precisely what happened with POTA which was promulgated by Parliament in 2001 even though the parliamentary session was only a few days away. The Lok Sabha examined the much-diluted CVC Bill. The Bill is a clumsy but clever compromise. Even the recommendations of the CVC over the vigilance administration have been restrained. Although some protest was made on the floor of the House by members of the CPI (M) and others, few recounted Mr. Kuldip Nayar's powerful dissent in the Joint Committee. Most significantly, the Single Directive has been retained. Thus, senior bureaucrats cannot even be investigated unless the Government (which eventually means the bureaucrats themselves) approves the investigation. All this is in the teeth of the Supreme Court's judgment which struck down the Single Directive.

Corruption haunts Indian governance. Put on alert by the J. B. Kripalani Report on the Railways in 1954, the Chagla Report on the LIC in 1958, the concerns of the Administrative Reforms Commission of 1968 and many others, independent India has evolved virtually no independent mechanism to investigate corruption. Neither politicians nor bureaucrats want to investigate their own corruption. They make sure no real investigation happens. This leaves Indian governance bereft of curative mechanisms. Even the Vohra Committee's dramatic revelations of corruption at all levels have not started India into an effective response. Through the hawala case (1997), the Supreme Court virtually goaded the Government into providing a blueprint for a rigorous CVC. Now, bureaucrats and the Lok Sabha have short-changed even that remedy. The bureaucrats and their political masters have won. Indian governance is the poorer for it.

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