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MANDARIN MATTERS | appointments | cvc row
Doubting Thomas

Had the Central and State governments implemented existing executive and judicial guidelines, the office of the CVC could have avoided being besmirched

by NARESH MINOCHA

THE deepening controversy over the appointment of the Central Vigilance Commissioner (CVC) has brought to the fore the larger issue of bad governance and inordinate delays in the litigation process. The row threatens to snowball into an executive versus judiciary showdown.

The affair began some months ago when the United Progressive Alliance could not achieve consensus on the CVC’s appointment. The swearing-in of IAS officer Polayil Joseph Thomas (1973, Kerala cadre) as CVC in the President of India’s office on September 7, 2010, kicked up a storm. The leader of the Opposition in the Lok Sabha, Sushma Swaraj, boycotted the ceremony. As a member of the statutory committee that appointed the CVC (the other two members are the Prime Minister and the Home Minister, as provided for in the CVC Act, 2003), she had opposed Thomas’ candidature because he is a co-accused in the 19-year-old palmolein import case that led to loss of Rs 2.8-crore revenue for the Kerala exchequer.
Swaraj met the President after the ceremony to explain the boycott. She had proposed selecting the CVC either from among the two other short-listed candidates or enlarging the panel of candidates to select a person of impeccable credentials. She put the blame squarely on the Prime Minister. As she told a newspaper: “Only three of us were there — the Home Minister, the PM and the Leader of Opposition. I told him, ‘This is wrong, I will object in writing.’ I gave alternatives – choose any one of the other two names on the panel, apart from Thomas; or enlarge the panel; or defer the meeting by a day and take feedback. He [the PM] said, ‘The swearing-in is on Tuesday.’ I said, ‘Today is Friday, let’s meet on Saturday.’ He said, ‘Give your dissent,’ and went ahead with the appointment.”
The Prime Minister now runs the risk of reprimand from the Supreme Court in case it upholds the public interest litigants’ contentions regarding Thomas’ appointment. A major contention is that the lack of consensus with the Opposition representative in the appointments committee should itself serve as the basis for quashing the CVC’s selection.
Further mismanagement by the government was evident in the failure to implement existing disciplinary guidelines (see box) pertaining to corrupt as well as innocent and maligned officials.

Swaraj met the President after the ceremony to explain the boycott. She had proposed selecting the CVC either from among other short-listed candidates or enlarging the panel of candidates.

In its affidavit, the government has not only strongly defended the Thomas appointment but almost questioned the judiciary’s right to raise concerns over the suitability of an appointee. The affidavit reportedly says: “It is well-settled that the question of a candidate is squarely the domain of the appointment authority.” The government’s stand is that Thomas was cleared in the palmolein scam by the CVC itself in 2007 and the Kerala government’s wavering stance in the case should not affect his career.
He is the eighth accused in the charge-sheet framed by Kerala’s Vigilance and Anti-Corruption Bureau with the first and prime accused being former Chief Minister K Karunakaran. The latter had managed to delay the judicial process by securing stays from the Supreme Court. After his death on December 23, 2010, the Supreme Court disposed of his appeal against the State government’s move to revive prosecution in the palmolein scam. With this, the way is clear for framing of charges against the accused in a trial court in Kerala. In addition to Karunakaran’s delaying tactics, the State government also shifted stands due to political factors.
The Supreme Court has resumed hearing the case. Its verdict will certainly help the government avoid controversy in the CVC’s appointment in future as well as strengthen its role in fighting corruption within the government and its appendages. The two member bench that is hearing the case has already voiced doubts over the ability of a person facing criminal charges to oversee anti-corruption cases.
The government’s affidavit has quoted Centre-State correspondence that led the Centre to grant a de facto integrity certificate to Thomas, who was transferred to the Centre in January 2009 as Secretary, Ministry of Parliamentary Affairs. He later served as Telecom Secretary where he was involved in fire-fighting in the 2G scam.
UNDER the existing rules at the Centre, even when a criminal case is pending investigation or a disciplinary inquiry is contemplated against an official, the person does not get the “integrity certificate” from the Department/Ministry and consequently cannot be considered for promotion.

The painful price of delay
“Delay in the disposal of disciplinary cases is neither in the interest of the Government nor in that of the Government servant. Undue delay in the disposal of the disciplinary cases also affects the morale of the Government servant.” Thus states the preface to the “Guidelines for Expeditious Disposal of Disciplinary Proceedings”, issued by the Union Department of Personnel & Training (DoPT) on April 2, 1985. Several such guidelines have been laid down. The “Guidelines for checking delay in grant of sanction for prosecution” were issued by DoPT on November 6, 2006, after Delhi High Court took suo moto cognizance of a newspaper report about the problem.
They state: “Delay in the disposal of sanction of prosecution cases is not in the interest of the Government. The Government is keen that innocent officers should not needlessly face harassment through prosecution while at the same time the really culpable and guilty officers should not escape prosecution on account of failure of the competent authority to appreciate properly the fact brought out in the CBI investigation reports.”
Had the Central and Kerala governments implemented these two sets of guidelines and several other executive and judicial orders regarding delays in prosecution of central services officials, the office of the Central Vigilance Commissioner could have been saved from tarnish.

Thomas, who is yet to file his affidavit, obviously believes that resigning would be tantamount to admission of guilt in the palmolein import case. His contention is that he merely implemented the decision of Kerala’s Council of Ministers in his capacity as Food Secretary. “On that basis, to level a charge of criminal conspiracy against me is funny,” he told PTI.
If Thomas’ contention is correct, the charge against him might get diluted from criminal conspiracy to that of being a pliable official. Politicians, especially in the States, try to ensure that officials from the all-India services are pliable. Those who are not get pushed to the fringes. They also face suspension or false charges that torment them for the rest of their careers.

Will the crisis bring about a review of the delicate power balance between the executive and the judiciary?

This brings to the fore the need for reviving the Public Services Bill, whose first draft was unveiled in 2006. Yet, the Bill has not even reached the stage of Cabinet approval. Among other things, it provides for a Public Services Management Code which would specify the interface between the political executive and the public services based on the principles of neutrality, professional excellence and integrity. It would also hold public servants accountable for their decisions or the decision making process in implementation of the code.
Apart from enacting the proposed law, both the Center and the States should act on the recommendations of the Committee of Experts on Disciplinary & Vigilance Inquiries that submitted its report to DPT in July 2010 under the chairmanship of PC Hota, former Chairman, Union Public Services Commission. The Hota Committee suggested a new framework for speedy action against corrupt officials as well as protection of innocent officials. Its recommendations include appropriate amendments to the Constitution, Prevention of Corruption Act, Code of Criminal Procedure and setting up of statutory vigilance commissions in all States.
The Committee’s observation that the problem of delay in the course of disciplinary inquiries and in their final decisions is far more serious in the States than in the Central government is relevant to the Thomas case. It recommended amendment to the All- India Services (Discipline and Appeal) Rules, 1969, for intervention and action against such accused officials serving in the States.
The Thomas case might acquire larger dimensions during the Supreme Court hearings. It remains to be seen whether it will pave the way for a new roadmap for governance and bring about a review of the delicate power balance between the executive and the judiciary.