The Hindu : The new neta-babu nexus

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Wednesday, Apr 02, 2003

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The new neta-babu nexus

By Harish Khare

By playing dirty at the behest of a Union Minister, an officer can buy immunity for himself under the new CVC regime.

WE LIVE in rather curious times. Last week at the National Democratic Alliance (NDA) rally, the Prime Minister, Atal Behari Vajpayee, praised his Government's record on the corruption front. Mr. Vajpayee even cited the raids/arrests/interrogation of the DDA brass last week in the capital as evidence of his Government's commitment to a corruption-free polity. A Prime Minister is of course entitled to blow his own trumpet, especially at a rally organised to celebrate five years in office. But what is most incongruous is that the Vajpayee Government is on the verge of putting in place a legal regime that would only legitimise a most unhealthy babu-neta nexus and once this new regime comes into being it would constitute a serious setback to any crusade against corruption; certainly, if the new regime had been in place, it would have been almost impossible for the investigative agencies to carry out the kind of action that they initiated against the DDA brass.

The new anti-corruption regime has been spelt out in the Central Vigilance Commission Bill, 2003. The Lok Sabha has already passed it, without any discussion; perhaps the entire political class is united in its ambivalence on fighting corruption. It is now up to the Rajya Sabha to discharge a legislature's obligation to "apply its mind", thereby ensuring that the anomalies in the proposed measure are properly debated, highlighted and if deemed necessary rectified.

The central theme of the new regime is the return of the infamous "single directive". Simply put, this provision — Section 6A of the proposed CVC Bill — makes it obligatory for the Central Bureau of Investigation (CBI) to secure prior approval of the Central Government before conducting any investigations under the Prevention of Corruption Act, 1988, if the allegation(s) relate to an officer of the rank of Joint Secretary or above. The "single directive" was thrown out by the Supreme Court in the Vineet Narain judgment on a most palpably fair argument: "every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone". It was a fundamentally innovative interpretation that restored, if only in a very limited way, some fairness to the structure of governance, which has all along sought to keep the rulers (politicians and bureaucrats) from any accountability mechanism. The Vineet Narain verdict struck at the very root of a smug mindset that power ipso facto conferred some kind of immunity on the rulers in this democratic country.

The suspicion of mischief gets further strengthened when it is understood that the Bill proposes to invest the new Central Vigilance Commission with powers of superintendence over the Delhi Special Police Establishment (which governs CBI's functioning) in matters relating to offences under the Prevention of Corruption Act. Though the proposed Bill provides this "superintendence would not entitle the CVC to exercise this power to require the CBI to investigate or dispose of any case in a particular manner", the new arrangements are all designed to circumscribe the CBI's autonomy. Not only would this power of superintendence be at variance with the existing Cr.P.C. regime (which vests investigation of criminal cases exclusively as a police function), it is also at odds with the Vineet Narain judgment which sought to release the CBI from the stranglehold of the politician-bureaucrat nexus. Now the nexus returns triumphantly.

The counter-argument, of course, is why should the CBI be given unfettered powers to investigate senior officers. Like all discretions, this inherently minatory power can be abused, if for nothing else than to make the "independent" bureaucrat bend. Has the country forgotten, the single directive advocates ask, all the havoc caused by the agency during the Joginder Singh era? Have we forgotten the entirely unconstitutional and unacceptable activism of a CBI Joint Director (U.N.Biswas) in the fodder scam? Do those who get called upon to man the CBI's senior positions become ipso facto immune to the frailties and flaws that otherwise gnaw the entire IPS cadre? Are the CBI officials equipped — intellectually and administratively — to understand the nuances of decision-making in an increasingly complex globalised context?

All these are valid questions, but the task of a mature polity is to summon the requisite collective wisdom and institutional innovativeness to put in place arrangements whose purpose cannot be defeated by an errant incumbent officer or Minister. Instead, what the CVC Bill proposes to do is to throw the baby out with the bathwater. The CVC Bill is a clever legal technician's ploy to sidetrack the cry for rolling back corruption at the official level; it is not a statesman's remedial prescription for curing a systemic malady. It is indeed possible to argue that the BJP establishment benefited politically from the inquisitional waywardness during the Joginder Singh era; the Congress and the United Front crowds were shown up to be neck-deep in scams and other acts of corruption whereas the BJP could position itself as a crowd of dedicated sants and swayamsevaks, all committed to austerity and probity in public life. Now that the BJP has got its chance, it wants to put a cap on any outbreak of activism in the CBI headquarters.

The problem goes beyond the BJP's predilections. To a very large extent, the problem is at the heart of a troubling — and at times troublesome — equation between the political leadership and the permanent bureaucracy. It is perhaps inevitable that some political leaders may be able to strike a special chemistry with this or that officer; in turn, the officer may be willing to go the extra mile to carry out the political leader's preferences. Individual chemistry apart, an obvious requirement of any constitutional arrangement is that the good guys (in this case the honest official) should not be made to feel harassed; vice a versa, the "rogue" officer should not feel he has immunity from the law just because he is willing to do the politician's dirty work.

The problem becomes acute when a relationship based on special chemistry degenerates into an alliance between a patron and a crony. In the knowledge that he will have the protection of the political establishment, a rogue officer may be more than tempted to go stray. Take, for instance, the case of an IPS officer of the Himachal Pradesh cadre who was airlifted to Shimla about six months before the Assembly elections; within weeks of landing in Shimla, he produced a chargesheet against Virbhadra Singh. This chargesheet then was used by the BJP political establishment to mount a vilification campaign against the Congress leader. And, lo and behold, within hours of the Assembly election results his services were requisitioned back in New Delhi by a politically friendly Union Home Minister.

That kind of game is being played in every State capital. The Mayawatis, the Chautalas and the Yadavs have their favourite officers, all willing to cross the limits of decency, way beyond the call of duty.

Now the problem is being sought to be imported at the Centre. By playing dirty at the behest of a Union Minister, an officer can buy immunity for himself under the new CVC regime. The new nexus between the corrupt Minister and the wayward bureaucrat introduces an intrinsic unfair element in the polity, without in any way getting rid of the rampant corruption in our public life.

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