Dialogue October-December, 2011, Volume 13 No. 2

Subversion of Institutions

Prakash Singh

The strength of a country is determined by the credibility of its institutions and not so much by the numerical strength of its armed forces. The founding fathers of the Indian Constitution took great care to establish certain institutions which would work as the bulwark of democracy and ensure justice, liberty, equality and fraternity to its citizens. These institutions are unfortunately under attack by a predator executive.

     The institutions whose credibility has suffered in recent years include the Vigilance Commission, the CBI, National Human Rights Commission, Election Commission and even the office of the Prime Minister and the President of India.

   The controversy over the appointment of Chief Vigilance Commissioner culminating in the Supreme Court order that the high powered committee’s selection of PJ Thomas was “non-est in law” was a slap on the face of the government. It is unfortunate that the Prime Minister and the Home Minister, two of the best specimens in an otherwise lack lustre ministry, made such a serious error of judgment. The yardsticks for the selection of CVC were very clear: that he should be a person of “impeccable integrity” and that he should be selected by a panel comprising the prime minister, home minister and leader of the opposition. Thomas did not have an unblemished record and so did not qualify to be a person of impeccable integrity. Besides, including the leader of the opposition in the selection panel essentially implied that there should be unanimity in his selection, and that this would be achieved by selecting an impartial and non-partisan person. The leader of the opposition was, however, overruled in the matter. The Supreme Court was compelled to lay down fresh guidelines, modifying the principle of unanimity and stating that each member of the panel was expected to perform his statutory duty in selecting the candidate and that no single member could be given the power of veto.

     It is not that the prime minister and the home minister were not aware of Thomas’ background, but they seem to have been either misled or pressurised by a powerful regional party into appointing Thomas as CVC. However, even if government’s explanation is to be taken at its face value, the personnel department and cabinet secretariat cannot escape responsibility for not placing full facts before the PM and the HM. And, in the final analysis, why did the President have to approve the recommendation? She also had a constitutional responsibility to ensure that a tainted person recommended by the committee, howsoever powerful, did not get her seal of approval.

     The Central Bureau of Investigation has not covered itself with glory in spite of the security of tenure being assured to its Director by the Supreme Court in the Vineet Narain case. In politically sensitive cases, the CBI has been blowing hot and cold depending upon the equation of the ruling party with the accused. Its handling of cases against Mulayam Singh and Mayawati has been most un-professional, to say the least.  Justice J.S. Verma, the author of the historic judgment, in an article published on the edit page of The Indian Express on April 11, 2009, stated as follows:

“It is sad that even now the CBI continues to disappoint the people whenever it deals with cases against the powerful. The blame can no longer be laid elsewhere. It is too much of a coincidence that in sensitive matters, the outcome of the CBI’s investigation invariably depends on the political equation of the accused with the ruling power, and it changes without compunction with the change in that equation”.

      Justice Verma, in the same article, deplored “the waning credibility of the premier investigating agency”.

     Two reasons have particularly affected the responses of the Director, CBI – the keenness to have a post-retirement benefit and the selection of a pliable person for the post. The lust to have an assignment after retirement is, in fact, causing havoc in administration. The higher the officers go, the weaker they become. Selecting a Director who would toe the government line has also devastated the CBI. Ashwini Kumar’s selection as Director, CBI was a scandal. He was foisted on the CBI by the political bosses. Needless to say, his two years were a disaster for the organisation.

     The 19th Report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, in its Report presented to the Rajya Sabha on May 10, 2007, drew attention to earlier reports wherein it was recommended that a separate Act should be promulgated for CBI “in tune with the requirements of the time to ensure credibility and impartiality”. The Committee regretted that no proactive steps had been taken in this regard, and reiterated its earlier recommendation that the Ministry should consider bringing forward “a separate enactment for CBI rather than deriving powers from the Delhi Special Police Establishment Act, 1946, in order to ensure its smooth functioning”.  The Government of India is, however, averse to passing a separate law for the CBI for narrow, partisan interests.

      The post of Chairman, National Human Rights Commission was kept vacant by the government for more than a year. Suitable justices were available to fill the slot but they were not appointed for extraneous reasons. The post was ultimately filled up by a person of whose integrity is being publically questioned. Loyalty and pliability have unfortunately become the most important criteria for selection to high positions. Merit is at best a secondary consideration.

     There was an attempt to subvert the Election Commission of India also when a bureaucrat known for his proximity to the establishment was planted in the Commission, knowing fully well that one day he would become the Chief Election Commissioner. Fortunately, not much damage was done.

      The Prime Minister is widely respected for his integrity.  However, it is well recognised that the centre of authority lies elsewhere.  The National Advisory Council headed by Sonia Gandhi has been laying down the roadmap for Government of India on several critical issues.  The Prime Minister has particularly come in for severe criticism for his failure to restrain and discipline the delinquent ministers indulging in corruption.  The extra-constitutional authority has severely dented the credibility and image of the office of the Prime Minister.  The Times of India commented as follows on this phenomenon:

“The working arrangement that Sonia Gandhi crafted in 2004, with Manmohan Singh as her CEO prime minister and herself as political head of the ruling alliance, seems to have ground to a halt.  A deadly swirl of corruption scandals and messy encounters with anti-graft campaigners Anna Hazare and Baba Ramdev have exposed hidden chinks and put the Congress chief directly in the line of fire for the first time in seven years.”

   The President of India’s appointment generated an unsavoury controversy. Happily, that has since been buried. However, the nagging doubt persists. Would she, in the event of a crisis, play her mandated role and uphold the Constitution or be just a rubber stamp of the executive?

     The state governments, at their level, have been merrily subverting the institutions in their respective areas. The police in quite a few states are functioning as militia of the ruling party. UP, West Bengal and Tamilnadu are particularly bad examples. There is opposition to implementing Supreme Court’s directions on police reforms. Officers on operational assignments are transferred round the year in violation of the Court’s direction to give them stability of tenure. The bureaucrats have been reduced the position of ‘babus’. The steel-frame has been bent. Public Service Commission and other important institutions are packed with stooges of the ruling party.

      Where will all this lead us to? The judiciary can play only a limited role in arresting this trend. If the ruling class do not wake up to the threat and agree on remedial measures, the future of democracy in the country would be in peril.