Two Murder Cases Revisited

                         Two Murders- Comparisons and Contrasts

(One murder was committed in a distant land; the other one nearer home. The two cases differed in other ways too. This short article shows how.)
Two murders took place- one of a young man called Stephens Lawrence in the city of London, on April 22, 1993 and the other of a young woman named Priyadarshini Mattoo in the city of New Delhi, on January 23, 1996.  The London crime was a hate crime, born out of racist feelings; the one in New Delhi was a crime of passion.

In both cases, investigation done by the police was shoddy.  In London, the Metropolitan Police handled the investigation and did a bad job.  The police failed to unearth sufficient evidence to prosecute the five white young men involved in the case. The McPherson Commission of Inquiry that later inquired into the case found that “the investigation was marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers.” 

In Delhi, lack of professional competence and failure of leadership was seen from the beginning when nobody paid any heed to various complaints made by the girl alleging frequent stalking, sexual harassment and criminal intimidation to which she was being subjected repeatedly by the accused Santosh Singh.  The Delhi High Court in one of the hearings slammed the Delhi Police, saying they were the root cause of all this.  Had they taken action in time, the girl’s life could have been saved. “The girl has died because of you and not the boy (accused),"  said the judges.  The accused was the son of a senior Delhi police officer, a reason enough for him to enjoy the impunity.  

The Lawrence case was investigated second time by the Kent Police. The standard of investigation, as per the McPherson Commission report, was better, but did not lead to prosecution of the accused.  The Mattoo case was transferred to the CBI, but the trial court did not agree with the findings of the investigation and acquitted the accused on December 3, 1999.

In the London case, the parents of the murdered man pursued the case with huge dignity, courage and determination.  Their efforts supported by civil society finally pressurised the government to set up a Commission of Inquiry under Sir William McPherson of Cluny, a former High Court judge.  In the Mattoo case too, the father of Priyadarshini refused to be cowed down by the initial failures and perused the case with dogged determination till the pressure generated by the media and civil society and the sense of public outrage at the acquittal in Jessica Lal case forced the Delhi High Court to decide the long pending appeal in quick time.  Finally on Oct 17, 2006, the High court convicted the accused Santosh Singh for raping and killing Priyadarshini Mattoo.

Stephen Lawrence’s murder case, which was supposed to be dead long ago, came to life again when two of the five accused, Gary Dobson and David Norris were arrested by the police on September 7, 2010, and charged with murder. They were found guilty by the jury and sentenced by the trial court on January 4, 2012 to different terms of imprisonment.

The Lawrence as well as Mattoo case clearly show what civil society can do in a democratic society to fight against the denial of justice. 

The similarities end here.  The response of the police forces and the governments in the two countries was totally different.  In the Lawrence case, the police admitted that their investigations were defective. Sir Paul Condon, the then Commissioner of the Metropolitan Police Service, made a public apology to the parents: “ I, we in the Met. feel a sense of shame for the incompetence of that first investigation and for how the family were let down.  We could and we should have done better.”  The then British Home Secretary, Sir Jack Straw announced in the House of Commons on February 24, 1999 that he felt ashamed “that the entire criminal justice system, and the Metropolitan Police Service in particular, failed the Lawrence family so badly.”   In this country, clear evidence of bad investigation done by the police both in Jessica Lal and Mattoo cases came out, but no apology or remorse was expressed either by the police or the government.

Following the McPherson Inquiry report, the government in that country formulated an action plan to implement the recommendations.  Besides improvements in the policies governing recruitment, training, internal inspection, disciplinary and accountability processes of the police, the Race Relations Act of 1976 was amended in 2000 to see that all public services followed policies, practices and procedures that promoted race equality.  Here, we have yet to learn our lessons from the way the police forces and other public services have handled the communal riots.

The most significant outcome of the McPherson Committee’s recommendations was the establishment of an independent civilian oversight mechanism to inquire into public complaints against police personnel.  The Independent Police Complaints Commission started functioning in the United Kingdom from 1.4.2004.  In this country, despite the Supreme Court’s directives issued to the centre and states in Prakash Singh’s case on September 22, 2006, independent effective police complaint authorities are yet to be set up in most states.  

There has been considerable criticism of the police for their poor investigation  in  Jessica Lal as well as Priyadarshini Mattoo cases.  This is as it should be, as the police have to be accountable for their lapses.  But what about the failures of the courts in such cases?  The Delhi High Court called the judgment of the lower court “perverse”, which has “shocked the conscience of the judiciary.”   The trial court judge was convinced that Santosh Singh had committed the crime, but he didn’t find evidence sufficient enough to convict the accused- the same evidence on which the higher court felt that the sentence had to be either death penalty or life imprisonment.

There was considerable euphoria over the judgment of the Delhi High Court. Public campaigns for justice launched in Jessica Lal and Priyadarshini Mattoo deserve to be lauded, but they should not remain merely an urban middle class phenomenon.  There are so many Jessica Lal and Priyadarshini Mattoo belonging to poor and downtrodden families in villages and small towns of the country, but the civil society has not shown similar concern for their cry for justice.  

Freeing the CBI

Can the CBI be made independent?

The recent debate on the Lok Pal Bill has thrown up three propositions. One, retain the status quo; two, transfer the control to the Lok Pal; and three, make the CBI an independent organisation.

Presently, the CBI is governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4(1) of this Act vests the superintendence of the CBI in the central government, just as Section 3 of the Police act of 1861 vests the control of the state police force in the state government.

Since the word ‘superintendence’ has not been defined in any law, both the central and the state governments have misused the police forces to serve their partisan interests. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The fact that every government at the centre has misused the CBI to serve its political interests can hardly be denied

Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the central government can cite in favour of retaining its control over the CBI. One, any police force, including the CBI, is a part of the executive and in the Westminster model of governance that we have adopted, the Minister concerned is responsible to the parliament for the efficient and honest functioning of his departments. Two, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.

While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, the police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous powers that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.

In the Havala case judgement, the Supreme Court tried to make one such attempt. While the Court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The Court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.

Unfortunately, the government did not implement the judgement of the Supreme Court either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgement in three important ways. One, it resurrected the Single Directive despite the fact the Court had held it null and void, being bad in law. Two, It did not transfer superintendence to the CVC fully. The CVC Act, 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act, 1988. Three, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgement. It continued to influence decisions regarding the initiation as well as the process of CBI’s investigations.


The manner in which the central government thwarted the implementation of the Supreme Court’s judgement in the Havala case is similar to the manner in which the state governments have continued till now to defy the apex court’s directives in the judgement delivered on September 22, 2006 in Prakash Singh’s case.

The possibility of misuse of police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. In the United Kingdom, they appear to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, the policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The Police Acts in some other countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department.

Keeping our system and environment in view, the team Anna should advocate for mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. It should of course insist on the Lokpal to have its own independent investigating agency, which need not necessarily be CBI.

--
This article was published in the Indian Express dated December 28, 2011



Some ideas that figured in the above article formed a part of the proceedings of the Rajya Sabha on Lokayukta Bill. Relevant extracts from the speech of Shri D Raja, CPI (M) member delivered in the Rajya Sabha on December 29, 2010 are given below;

"Finally, Sir, about CBI, I would like to say that CBI as an
investigative agency should have independence. It should be freed
from political interference. At the same time, we should be
cautious; we cannot give absolute autonomy to an organization like CBI and CBI must be made accountable and answerable to some
authority.

SHRI D. RAJA (CONTD.): Sir, I am finishing after one point. In an
Article "Freeing the CBI" by G.P. Joshi, former Director of Bureau of Police Research and Development, it is pointed out, Sir, "The United Kingdom has successfully implemented a very subtle distinction between the Police as an organization and policing as a set of activities. While the Police as an organization is the responsibility of the Government, policing as a set of functions is the responsibility of the police force. Government's role is to formulate policies, provide Budget, set standards and monitor performance, but it cannot give any operational direction to any Police Chief." (Time bell)

In Queensland, Australia, communication between the Minister and the Commissioner of Police is guided by clear provisions in the Police Act. Directions from the Minister have to be given in writing and the Commissioner of Police is bound to comply with directions but keep a record of all correspondence which is later placed on the floor of the Assembly.

This is the experience. Now, I am asking the Minister and the
Government. ...(Interruptions)... Are they going to treat CBI like this?

MR. CHAIRMAN: Your time is over. ...(Interruptions)... There is
no time left. ...(Interruptions)...

SHRI D. RAJA: The Government will have to consider these points
with all seriousness. Otherwise, this Bill will remain a weak Bill. We want a strong and effective Bill for which we have given
amendments. Our amendments need to be considered with all
seriousness by the Government, by the House."

The UK Riots

The UK Riots- Impact on Policing

This appears to be a season of protests in many countries. But what happened in some cities of the United Kingdom recently was a very ugly kind of protest, if at all it can be called that. It was rioting in its worst form, in which buildings and vehicles were burnt; shops were looted; property was vandalized; and people were killed and injured. What added to the ugliness of the disturbances was the ease with which people, including young children and women, joined in the looting and vandalising spree. It was “criminality, pure and simple,” as the British Prime Minister called it, whatever its root causes might have been.

The police came in for considerable criticism. This had to happen, as they were involved in the event that triggered the riots. Their initial response to the rioting that followed was weak and incompetent. They took considerably long to reclaim the control of the streets and to bring some semblance of order. In the beginning, the deployment of strength was inadequate and their tactics were softer than what the situation required. Though the Metropolitan Police deputy assistant commissioner, Steven Kavanagh denied the police were soft on rioters, the fact that their initial tactics left a lot to be desired was acknowledged by the government. The British Prime Minister, on returning from holidays, referred to the inadequacy of deployment and said “the tactics they were using weren’t working.” Michael Gove, the education secretary, told Channel 4 News “the police response had not been robust enough...” Even the Home Secretary Theresa May told the Parliament “…police only retain the confidence of the wider community if they are seen to take clear and robust action in the face of open criminality”, clearly implying action taken by police was not strong and forceful enough to deter the rioters.

This critical assessment about the initial handling of riots by the police created unnecessary tensions between the political executive and police officers. There was a sharp reaction from Sir Hugh Orde, president of the Association of Chief Police Officers who felt the attacks on policing were totally unjustified and negative. He also opposed the Prime Minister’s decision to invite former LAPD Chief Bill Bratton to advise the government on policing in the UK. Occasionally one got an impression as if these riots had created a wall of distrust between the political executive and the police.

Will the widespread mayhem that occurred in some cities of the United Kingdom (from August 6 to 10, 2011) and the criticism of the police that followed their initial handling of the riots change the face of public order policing in the UK? The British Police till now have enjoyed the reputation of policing by consensus as opposed to doing it by fear. They believe in the principle of using minimum force and always tried to implement it uniformly throughout the UK in the last few decades while dealing with public order disturbances. Is this likely to change now? The question becomes relevant as increasing violence in that country has produced responses, some of which are disturbing.

In the United Kingdom at present, there is an overwhelming public sentiment in favour of hard and tough public order policing. The government is definitely giving an impression that police can no longer afford to be soft in dealing with violent disturbances and want them to change their tactics as well as their response equipment. The Prime Minister gave his support to “whatever tactics” the police officers considered necessary to control riots. The police are authorised to use baton rounds and plastic pellets and contingency plans to use water cannon to break up disturbances are in place. The government is even considering the use of CS gas on such occasions, if necessary. In addition, they feel it is time to consider whether the police need powers "to impose a general curfew in a particular area" and also to impose curfews on individual teenagers under the age of 16.

The Prime Minister said they would not let “phony human rights” obstruct the criminal justice system to bring rioters to justice. The courts are swift and harsh in inflicting punishment on those who took part in rioting. Even Social networks were not spared, and two young men who instigated others through entries in Facebook and Twitter were sentenced to four years imprisonment.

The government is not content with subjecting the rioters merely to the rigours of the criminal justice system. They want to cut off government benefits to offenders and this includes evicting them and their family members from publicly subsidised housing. This form of punishment reminds one of Section 15 of our Police Act of 1861, which authorised the colonial government in India to impose collective fine on all the inhabitants of an area that suffered disturbances, requiring the deployment of additional police. The government’s action to evict the offenders and their family members who had nothing to do with the disturbances has been called draconian by many within as well as outside Britain. What is at stake is much more than just the image of the British government and of their police force. As the New York Times states in an editorial piece, "Fair play is one traditional British value we have always admired. And one we fear is increasingly at risk."

NATIONAL ADVISORY COUNCIL'S BILL ON COMMUNAL VIOLENCE- A FLAWED PIECE OF LEGISLATION

The National Advisory Council’s Communal Violence Bill - Odd and flawed

Going by the statement of Kapil Sibal, the UPA II appears intent on taking forward the Prevention of Communal and Targeted Violence (Access to Justice and reparations) Bill, 2011 drafted by Sonia Gandhi’s National Advisory Council. He says the central government is determined to make individuals and state governments accountable for “the kind of things that happened in the past.”

But what happened in the past is much more than what happened in Gujarat. The Bill has obviously been shaped by the experience of 2002 Gujarat riots.

The Bill is distinctive in many respects, but there are some areas where the Bill’s peculiarities stare you at your face.

The Bill presumes that the victims of communal violence in all cases and circumstances are people belonging to minority communities. This presumption results from three definitions given in Section 3 of the Bill. One, it defines “communal and targeted violence” as any act or series of acts which cause injury or harm to the person and or property and are knowingly directed against that person “by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Two, the “group” means a “religious or linguistic minority” or Scheduled Castes and Scheduled Tribes in any State. Three, “Victim” means “any person belonging to a group” who has suffered harm due to violence.

So if a victim of communal violence does not belong to a religious or linguistic minority, that person is not covered by the provisions of the Bill. It also means that no person belonging to the minority can be accused of committing an offence of communal and targeted violence unless the victim also belongs to that group, which is highly unlikely.

It is reasonable for the government in a democratic society to legislate to protect the interests of disadvantaged groups, but in that case the legislation should state the objective clearly, as was done when the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed. If that is not done, the intention behind the piece of legislation is always questionable.

Chapter II of the Bill catalogues a few offences, like sexual assault, hate propaganda, continuing unlawful activity, aiding the commission of an offence, torture etc, but lists many offences of the Indian Penal Code 1860 in Schedule III. Section 11 of the Bill says that all such IPC offences shall be deemed to be offences of communal and targeted violence and dealt with accordingly. Chapter VIII prescribes penalties for these offences, ranging from three years imprisonment with fine or both for indulging in hate propaganda to rigorous imprisonment for life and fine for committing an offence of organised and targeted violence. All offences under the Act are cognizable and non-bailable.


Section 13 lists various failures by a public servant in dealing with the communal situation which would be treated as dereliction of duty, an offence punishable with imprisonment for two years which may extend to five years and fine. In addition to dereliction of duty, the Bill describes an offence of “breach of command responsibility” applicable to officers of armed or security forces, who fail to exercise control over persons under their command resulting in commission of offences under the Act. Officers guilty of such offences are punishable with rigorous imprisonment for life when such failure relates to organized targeted violence and in any other case with imprisonment for a term of ten years and fine.

Section 75 of the Bill says that the defence of sovereign immunity will not be available for offences committed under this Act. Sanction to prosecute public servants, as required by Section 197 of the Cr P C, shall not apply to offences mentioned in Schedule III. There is nothing wrong in marking a complete departure from the legal position stated in the Cr P C where no prosecution can be launched against a public servant for dealing with unlawful assemblies without permission from the government. However, the breach of command responsibility is too difficult to be proved in riotous situations and the penalty prescribed is unreasonably harsh. It would also lead to demoralisation of on-the- spot officers in controlling communal riots.

The Bill sets up a multiplicity of agencies to deal with the problem of communal violence. The National Authority for Communal Harmony, Justice and Reparation shall be set up to prevent and control the spread of communal violence and to monitor investigation, prosecution and trial of offences and payment of due relief and reparation. It shall also “observe, monitor and review the performance of duties by public servants” and also “postings, transfer and replacement” of individual officers “that affect areas where outbreaks of communal and targeted violence’ are reported or anticipated. A very tall order indeed. The creation of National Authority shall be supplemented with establishment of State Authorities for functions, which are more or less similar

The State Authorities may appoint Human Rights Defender for Justice and Reparations in each district. In addition, the Bill sets up State Assessment Committee and also District Assessment Committee to assess the quantum of compensation to be given to victims of communal violence.

The establishment of this highly unwieldy institutional framework raises more questions than it answers. It shows lack of faith in the existing administrative machinery, but some provisions of the Bill show that the new architecture will obviously be superimposed on what exists and not supplant it? If one goes by the past experience, such high powered bodies fail to function viably for long periods and generally end up by becoming post retirement benefit-accruing sanctuaries for politicians and bureaucrats.

The state governments have not shown any keenness to set up institutions that impinge on their powers. The reluctance of states to set up state security commissions suggested in the Supreme Court’s judgment in Prakash Singh’s case as a part of police reform programme is a clear example.

The state governments will have a stronger reason to oppose this Bill. Police and Public Order are subjects in the State List in the Seventh Schedule of the Constitution. Section 20 of the Biil

attempts to encroach on this domain of the state governments by authorising the centre to treat the occurrence of organised communal and targeted violence in a state as “internal disturbance” within the meaning of Article 355 of the Constitution of India and take suitable steps to deal with the situation accordingly. This is very dangerous provision for it will fracture the scheme of federal polity enshrined in the Constitution. How can one be sure that every incident of communal violence will not be interpreted as internal disturbance? After all, the tribe of governors like Buta Singh and H.N Bhardwaj is not yet extinct.

Impunity in Corruption cases

Impunity in Corruption Cases

Law Facilitates It

                                                                    

In less than a year and a half, the UPA government’s credibility has been badly dented, with major scams tumbling out of government’s cupboard with surprising frequency.  More than the scams, it is the way they have been handled by the government that has damaged its reputation.  On the one hand, it has been pusillanimous enough not to take the bull by its horns and stop it from galloping at breakneck speed. On the other, it has been arrogant enough to brazenly deny its own culpability, but succeeding only in scoring one self goal after another, the biggest and the foulest being the appointment of Thomas as Chief Vigilance Commissioner.

Rahul Gandhi keeps on talking about bridging the gap between the rich and poor India, but prefers to remain conspicuously silent on the subject of corruption.  He probably does not realise that the most important factor responsible for the big gap between the two is corruption.   As long as corruption remains, a part of India and the major part will remain poor. Corruption, as somebody has rightly said, is a tax on poor people.  If he has realised, as his father did, that not more than fifteen paise out of one rupee spent by the government for the betterment of the poor really reach them, then he has to do something to ensure this does not happen, instead of keeping his mouth closed and eyes blind.  This ostrich like attitude, remaining silent and inactive hoping that the storm will pass on its own, does not help.  In these days of right to information and wide spread of competitive, investigative and judgmental media, the facts are not easily suppressed; nor does the storm disappear early and easily. 

When denial of its involvement in corruption is no longer possible, all that the government does is to shift the guilty person from one position to another and then proclaim that law will take its own course, which it invariably fails to do.

Law in most cases fails to take its proper course, primarily due to three reasons.  Firstly, the justice system is cumbersome, dilatory and badly flawed. Secondly, the anti-corruption agencies do not function effectively, particularly against rich or politically influential people, as they have been badly politicised and rendered effete.  Thirdly and it is this which is proposed to be discussed here, law itself provides impunity and allows guilty to escape unharmed.

The anti corruption law has three main provisions that provide impunity.   One requires government’s permission to investigate; the other its sanction to prosecute and the third allows the government to withdraw or close cases. 

CBI is the most prominent anti-corruption enforcement agency at the central level.  Section 6 (A) of the Delhi Special Police Establishment Act, 1946, which governs its functioning, mandates the CBI to obtain prior sanction of the head of the ministry or department before undertaking any inquiry or investigation against any officer of the rank of Joint Secretary and above in the Central Government, including those in the public sector undertakings and nationalised banks.  This is what in popular parlance is known as the Single Directive, issued by the central government sometime in 1986.  Without such sanction no inquiry, not even one the CBI calls PE (Preliminary Enquiry) can be conducted.  This provision was earlier a part of executive instructions but it was given a statutory wrap by the Central Vigilance Commission Act, 2003, despite the fact that the Supreme Court had declared it null and void in the Hawala case judgement.  The main objective of the Directive is to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires, so that they can take their decisions without fear of being victimised.  However, in a large number of cases, this provision of law is used to provide impunity.  The most recent case is that of a senior officer of the National Highways Authority of India, where the CBI had to ask the Cabinet Secretary to transfer him to his parent cadre when it was denied permission by the Ministry of Road Transport and Highways to probe into allegations of corruption made against him.

The other provision of law that provides impunity is Section 19 of the Prevention of Corruption Act, 1988, which requires the police agency to obtain sanction from the concerned government before prosecuting public servants involved in corruption cases.  In many cases, there is considerable delay in receiving sanction and in some it never comes.  This had caused concern to the Supreme Court too, which in the Havala case judgment directed that the maximum limit of 3 months to grant sanction must be strictly followed

This government is not satisfied by providing impunity merely to serving officers; it has tried to include even the retired public servants within the ambit of impunity provisions of law.  In 2008, it tried to extend the scope of such provisions to former public servants by amending Section 19 of the  Prevention of Corruption Act, 1988.  Luckily, the amendment was not ratified by the Rajya Sabha even though it had been cleared by the Lok Sabha.

The need for prosecution sanction  and inordinate delays in obtaining it is an important bottleneck in the effective functioning of anti corruption agencies.  This bottleneck not only results in impeding their functioning but also in providing impunity to accused persons and thus defeating justice.

Law not only prohibits investigation and prosecution without government’s sanction; it  provides a third protection.  Even if prosecution is instituted, the government can always withdraw the case with the permission of the court under Section 321 of the Cr.P.C.  The government has occasionally used this provision too, the most prominent case being of Captain Satish Sahrma, a senior Congress leader against whom CBI had instituted cases pertaining to alleged irregularities in allotment of petrol pumps and gas agencies during his tenure as Petroleum Minister between 1993 and 1996.  The cases were later on closed.

The ostensible purpose of all the these provisions of law is different from what they are often used for. Amongst other steps the government must take to deal with the menace of corruption, it must review the law that helps in providing impunity.

Appointment of the Central Vigilance Commisioner - the Law is Defective

DEFECTIVE LAW FACILITATES WRONG APPOINTMENT

The UPA government’s blatant decision to plant their own man, P. J. Thomas in the office of the Chief Vigilance Commissioner, despite strong opposition by the leader of the opposition, has sparked off a huge political controversy. The BJP, calling the Government’s decision “sad and shocking,” took the matter right up to the President, requesting her not to sign the order of appointment. Now that the appointment has been made and the matter has become a fait accompli, it calls for dispassionate discussion.

The BJP objected to this appointment mainly on the ground that P. J. Thomas did not have the right credentials for the job. In past, there were allegations against Thomas’s alleged involvement in the palm oil import scam in Kerala. Though he had been absolved of the charges in an inquiry, the BJP argued - and rightly so - that the man occupying such an important post must be spotlessly clean.  The BJP also fears that this appointment has been made by the government to cover up the 2G spectrum scam, in which accusations have been leveled against the Telecom Minister A Raja.

The appointment of Thomas cannot be faulted on grounds of law. The legal provision for the appointment is contained in Section 4 (1) of the Central Vigilance Commission Act, 2003. It says that the appointment shall be made by the President after obtaining the recommendation of a Committee consisting of the Prime Minister as the chairperson, Home Minister as one member and the leader of opposition as another member.  The Act does not require the recommendations of the committee to be unanimous.  It does not say that the appointment can be made only when all three members of the Committee agree on a name.

Similarly, the Act is also surprisingly and conspicuously silent about the integrity record of  appointees to the post.  All that Section 3 (3) of the Act requires is that the chief and the other members of the Commission shall be appointed from amongst persons “(a) who have been or are in an All-India Service or in any civil service of the Union …. having knowledge and experience in the matters relating to vigilance, policy making and administration including police administration” or (b) who have held office or are holding office in a corporation or a company owned or controlled by the Central Government and persons who have “expertise and experience in finance, law, vigilance and investigations”  Thus while the Act  insists on having persons with administrative and other types of experience, it is definitely mute about their integrity antecedents.

However, what is legal need not necessarily be legitimate. The BJP’s objection that the Chief Vigilance Commissioner must be spotlessly clean has considerable merit. The legislation governing the structure and working of CVC owes its existence to the judgement delivered by the Supreme Court of India in December 1997 in the Havala case.  Besides directing that the Commission must be given a statutory cover, the Judgement also said that selection for the post of Central Vigilance Commissioner should be made by the Committee “from a panel of outstanding civil servants and others with impeccable integrity.” The CVC Act conveniently omitted the category of “others” and confined the selection to a panel of civil servants or office bearers of public sector undertakings of the central government.   The Act did not even insist on having officers who were “outstanding” or have “impeccable integrity.”  Being a central government employee with certain experience alone was enough.

However, the CVC Act was passed by the Parliament in 2003 when the BJP was ruling at the centre.  That was the time when the BJP should have ensured inclusion in the legislative enactment of “impeccable integrity” clause and widening of the circle from which recruitment could be made to this post.

Another objection to this appointment has been raised by referring to P.J.Thomas’s decision as Secretary, Telecom to obtain views of the Ministry of Law whether the CAG or CVC could question the policy decisions of the government. Here again, law, with its inadequacies and shortcomings, comes to the rescue of the government.  Section 8(1) (h) of the CVC Act  requires the CVC to “exercise superintendence over the vigilance administration,” but with a proviso, which says that “nothing contained in this clause shall be deemed to authorise the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters.” There is no cut and dried definition of what constitutes a policy matter and the Act made no attempt to describe it.  Prior to the enactment of the CVC Act, the CVC’s working was governed by The Resolution of the Government of India No. 24/7/64-AVD dated February 11, 1964 with which it was set up on the recommendations of the Santhanam Committee on Corruption.  The Resolution had no such clause. It required the Commission to “exercise general check and supervision over vigilance and anti-corruption work,” but simultaneously authorised it to “initiate at such intervals as it considers suitable review of procedures and practices of administration in so far as they relate to maintenance of integrity in administration.”  These powers were diluted through law passed in 2003 to govern the working of the Central Vigilance Commission.

The need of the UPA government to have its own man as Central Vigilance Commissioner has probably been guided by another consideration, which has not received adequate notice.  The present Director CBI is retiring very shortly.  The Central Vigilance Commissioner is the chairperson of the committee which selects the officer for the post of Director CBI.

The CVC Act, 2003 is not only inadequate and deficient but also mischievous in many ways.  This is the law which legalised a set of executive instructions known as the Single Directive, which were held by the apex Court in the Havala case judgement as contrary to law.  It also introduced a system of dual control over the CBI.  The Act did all it could to dilute the judgement of the highest Court in one of the most important criminal cases decided by it since Independence and to weaken the two important offices meant to check corruption in the country - the CVC and the CBI.