Political Diary

New Delhi, 5 March 2011

UPA Loses Face

INTEGRITY, WHAT’S THAT?

By Poonam I Kaushish

You reap what you sow. This truism has come to haunt the Manmohan Singh-led UPA Government as never before. In a stunning climax to months-long legal and political drama, the Supreme Court struck down the appointment of PJ Thomas as Central Vigilance Commissioner (CVC). In the process, it rewrote the rules of “institutional integrity” for a Government already suffering from a severe accountability deficit leaving many red-faced!

The story began on 3 September 2010 when a High-Powered Committee (HPC) comprising the Prime Minister Manmohan Singh, Home Minister Chidambaram and Leader of Opposition Sushma Swaraj met to appoint the CVC. Notwithstanding Sushma’s veto on the ground of Thomas’s indictment in the 1992 Palmolein oil import case as Kerala’s Food Secretary, the Government went ahead, as per majority of two, and appointed him. Leading to the Centre for Public Interest Litigation challenging Thomas's appointment in the Supreme Court.

Underscoring, that it was not enough to adhere to the letter of law but also uphold its spirit, the three-member Bench headed by India’s Chief Justice Kapadia in a 71-page order declared that the HPC's selection of Thomas was "non-est in law and, consequently, the appointment of Thomas as CVC is quashed."  Causing further embarrassment to the Government, it chided the HPC for “not considering” the pending criminal proceedings against him.

“It is the duty of the HPC to not recommend the name of a person who can affect the institutional integrity of the CVC. It is the independence and impartiality of an institution like the CVC that has to be maintained and preserved in the larger interest of the rule of law,” the Court said. Emphasizing that the institution was more important than the person, the Bench added, “Institutional integrity and the integrity of a person holding the post of CVC is the touchstone of the office under the CVC Act.”

Needless to say the judgment is not only a direct blow to Manmohan Singh but has also eroded his moral authority. Along-with further depleting the desperately needed political capital of the scam-tainted UPA Government. Especially against the backdrop of the Prime Minister assertion that “Caesar’s wife must be above suspicion” and the need for upholding probity, morality and accountability in governance.

True, Manmohan Singh has “accepted my responsibility,” but is that enough? Does it absolve him of misdemeanour? Was he misled or did he mislead himself? Who air-brushed Thomas’s bio-data? Why were the notings indicting Thomas not put up before the HPC? What was the tearing hurry to appoint Thomas on the same day? Questions abound.

Indeed, on all these counts the Prime Minister has to come clean. Given that the overall responsibility of the Department of Personnel and Training (DoPT) lies directly with him. Scandalously, six crucial notings between 2000-04 by the DoPT stating that penalty proceedings be instituted against Thomas in the Palmolein case and supported in 2003 by the then CVC went “missing” from the file put up before the HPC. The Committee surely could have waited a day to allay the Opposition Leader’s charges.

Perhaps the Opposition has a point when it alleges that Thomas was appointed primarily because the Government wanted a pliant CVC as the 2G spectrum scam was under investigation by the CBI over which the CVC exercises a decisive influence. In fact, the CVC approves the appointment of the CBI Director. Recall, Thomas was the Telecom Secretary from October 2009 to September 2010 and failed to take action against beneficiaries of the 2G spectrum licenses who had failed to fulfil their rollout obligations.

It is further alleged that he was chosen because he “secured” a note from the Law Ministry as Telecom Secretary that argued that the spectrum allocation was part of official “policy” which could not be questioned either by the CVC or the Comptroller and Auditor General of India.

Moreover, given the fact that there was no unanimity in the panel to select the CVC, even if one assumes that Thomas was not guilty of any wrongdoing, the Government could have easily avoided the unseemly controversy by selecting one of the two other IAS officers shortlisted, as suggested by Sushma Swaraj.

Particularly, as the office of the CVC was conceived as the supreme vigilance institution in the Government, free of control from any executive authority. The CVC is meant to monitor and supervise CBI probes and corruption cases against bureaucrats and Government bodies. As also to advise various authorities on “planning, executing, reviewing and reforming” all activities related to anti-corruption vigilance.

After the Central Vigilance Commission Act was passed in 2003, the Government passed a resolution on “public interest disclosure and protection of informers” by making the CVC the “designated agency to receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action” in 2004.

In 1993, the Supreme Court directed the Government to ensure that the selection of the CVC should be made by a three-member committee comprising the Prime Minister, Home Minister and the Leader of Opposition. Adding that the selection of the CVC should be made from a panel of “outstanding civil servants and others with impeccable integrity”. However, the Central Vigilance Commission Ordinance of 1998 confined the CVC selection to merely a “panel of civil servants” omitting the key phrases “outstanding” and “impeccable integrity.”

Undoubtedly, the Supreme Court needs to be lauded for bringing about a course correction in a key Constitutional post even as it made plain to our netagan that their lapses would be check-mated. This is not all. The Thomas judgment has proved beneficial in straightening the codes of governance on the issue.

The Court appended guidelines whereby in future, CVC appointments should not be restricted to bureaucrats but include people of outstanding and impeccable integrity from other fields also. Two, while rejecting that the CVC’s appointment by the HPC should be unanimous, it held that if case of dissent by any of the three members, the reasons have to be stated and these be considered by the majority. Three, the majority should also give reasons for their decision as this would lead to transparency and inspire public confidence.

Further, the empanelment of candidates should be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority. The empanelment shall be carried out by a person not below the rank of secretary to the Government in the Ministry concerned. Hopefully, the ruling will serve as the speed-breaker for all high-level appointments.

All in all, the Prime Minister, his Government and Congress President Sonia Gandhi are clearly on test. The time has come for our powers-that-be to seriously introspect on what went wrong. But more important to ensure that this is not repeated. After all, the right to do something does not mean that doing it is right.  Institutional integrity has to be upheld at all costs, no matter what it takes. Forsaking the Kursi included. The country demands that the ‘ethical deficit’ in governance be filled and filled fast. Are they game? ----- INFA

(Copyright India News and Feature Alliance)