In a nutshell, this is another agency which has not yet realised its potential to preempt and address wrongdoing by the official community. Whereas the CEC was a barking, biting dog, and the CAG occasionally barked but never bit, the central vigilance commissioner or the Vigilance Commission can well be likened to a pet poodle, which never barks and cannot bite. It has turned out to be another passive, submissive, conformist friendly watchdog, guaranteed not to make noise, for fear it may rock the boat. In a system replete with financial irregularities, fraud, major malfeasance, the central vigilance commissioner goes by the book – ensures that all files are in order, and certifies that there is no wrongdoing. I wish Seshan could be given another incarnation to have a three-year tenure as central vigilance commissioner – he will shake up the system, and shake it into life. Sadly, the central vigilance commissioner could be likened to a favourite private external auditor appointed to a medium-size or large-size firm, never rotated, who can always be trusted to pick up only minor irregularities, but ignore large-scale skullduggery.
The CVC has not encouraged 'whistle blowing', while ensuring nondisclosure of identity and protecting its interests. The CVC, sadly, also has not encouraged alternate independent means of gathering information and bringing offenders to book. Its exclusive reliance is on 'files' to detect a wrongdoing. It is indeed very rarely that an official with criminal intent will display it on the government's papers! Indeed it is the failure of institutions such as CVC, which have encouraged so much of collusion, conspiracy and wastage of public funds.
We again see the same phenomenon repeating itself. The guardians charged with responsibility to ensure that public interest is safe in their hands do not have the stature to grow with the responsibilities entrusted to them. Most of them are grateful for the post-retirement tenure given to them, and treat it as a sinecure.
One would have expected that the CVC would be in the public eye nearly every day, announcing crackdown on one wrongdoer or the other; use technology and 'stings' with adequate safeguards, to catch delinquency; generally show itself to be the true watchdog that it is expected to be; not the soporific, gentle, inactive, passively quiet agency it has turned out to become, despite the statutory position it enjoys.
Central Bureau of Investigation (CBI) – Government's best friend . . .
The CBI was established during the Second World War period, primarily to investigate and also to prevent malpractices in war-time government purchases. This was constituted through a special Act – Delhi Police Establishment Act. In course of time, after Independence, this was expanded to become the foremost national internal criminal investigating agency. Whereas its jurisdiction extends to all Central Government cases, state governments also do transfer alleged criminal activities in different parts of the country for investigation, to this agency. Supported by more than one thousand investigators and staff, the CBI carries fear in the minds of wrongdoers. Due to its supposed impartiality, many state governments transfer controversial and sensitive cases to the CBI for investigation. Also in many major crimes including murder, rape, etc., particularly involving politicians or with major local interest, citizens prefer and clamour for investigation by the CBI, as they feel that they are likely to get 'justice'.
Experience over the past sixty years indicates that the special position enjoyed by the CBI has more to do with the absence of a high quality, fair and competent investigating agency in the country, rather than the intrinsic merit of this agency. Compared to the performance of similar agencies abroad (FBI, the Scotland Yard and the like), the CBI's performance appears extremely weak, shoddy and dilatory. The quality of its investigation leaves much to be desired. This is partly due to the fact that by the time the CBI gets into investigating a case, the local police may already have mucked up much of the evidence, either due to incompetence or pressure of local interests. In addition, the support it receives from technical forensic laboratories is unreliable at best. Despite these handicaps, the CBI is certainly far superior in quality to the Criminal Investigation Department (CID) in most states, and is the preferred option for investigation, mainly for want of a more reliable agency.
The CBI is also seen by the general public, indeed by the political and bureaucratic class, as a handmaiden of the government in power. This is generally perceived to be achieved by dilatoriness and inaction at critical times to allow the evidence to get smudged and unusable in court. The Bofors case, the HDW submarine case and a host of other high profile matters involving people in high places are too well known to elaborate. In theory, the CBI is expected to be completely independent of any political influence of any government department, insofar as the critical elements of investigation are concerned. The reality is that in high profile cases, there is a clear perception that the controlling elements of the CBI are amenable to give the desired direction to the investigation, to suit the needs of the political masters; almost certainly there is much truth in this.
One frequently sees headlines in the newspapers of the CBI registering a First Information Report (FIR) against this person or that. Indeed the CBI's website proudly proclaims each new 'catch', on a near-daily basis. However, in the absence of anyone monitoring the progress of investigation, the public does not get to know the broad details of total number of FIRs registered, charges framed in these cases, whether they have proceeded to trial or not and what is the conclusion thereof. In short, the public is totally in the dark about the efficacy of the CBI in bringing culprits to book. They see cases registered everyday against 'alleged' wrongdoers, but they hardly get to see the next stage of the chargesheet being filed in court. While it is true that the CBI has an overwhelmingly crippling investigative load to carry compared to its resources (both qualitatively and quantitatively), it is also true that it is now coasting along on the good reputation it earned over the first three or so decades after Independence. Sadly, there are immense delays in the investigation stage; this is probably because the agency is flooded everyday with new cases for investigation, that older ones get relegated to limbo.
Frequently, the registration of an FIR against the bureaucrat is the kiss of death for him. Whereas a politician, named in an FIR continues merrily, frequently influencing the course of investigation, in any case carrying on his 'public service' without hindrance, the bureaucrat is on a different footing. In many cases, the mere fact of a case being registered can deal a major blow to his career progress. That he is exonerated ten or twenty years later cannot compensate him for the critical time lost when he was 'climbing the ladder'. Indeed this is one of the weapons used to cripple an 'uncooperative' official. There ought to be some kind of time limit, say six months, after which the official is deemed to be clean, unless charges are meanwhile proved against him in the court.
The question of total independence and 'autonomy' for the CBI has been debated many times in the past. Sometime in the mid-1990s, the apex court directed a specific method for appointment of the CBI director – the matter was exclusively in the jurisdiction of the government of the day till then. There was also a brief debate whether the CVC should oversee or supervise the functioning of the CBI; probably the correct decision has been taken not to implement this view, for reasons mentioned earlier in this chapter. However, some kind of supervision is essential, at least to keep track of the progress of investigation, if not to go into the details of each matter. Thus, if the CBI fails to convert an FIR into a chargesheet, within a specified period, say three months or at most six months, the legal presumption should be that the person should be deemed to be clean. Beyond the specified period, the CBI ought to obtain the specific approval of a non-governmental supervisory body to continue the process of investigation; where, for reasons beyond its control, the period of extension goes beyond a year, there needs to be a special scrutiny before awarding further time to complete the process. In many Western countries, there are very sharp deadlines to bring an FIR to the stage of the chargesheet, in many cases amounting to a few days or
a couple of weeks. This process is highly dilatory in the hands of the CBI, generally going on into many years, often decades. The opaqueness of the functioning of the CBI should be eliminated – this is not to argue that the details of each investigation be made public.
Much or most of the staff of the CBI is drawn from the state police services, and at senior levels by the IPS. This very culture naturally resists the induction of specialists from different disciplines to man this primary investigative agency. Many of the policemen have experience of rural crimes and maintenance of law and order in district towns. These certainly are no doubt quite relevant. However, there are major additional dimensions in many urban crimes, particularly economic offences involving the corporate sectors as well as cyber-related crimes. Even though a few specialists have been recruited by the CBI, the impression remains that the agency is not adequately equipped to handle sophisticated crimes, which are on the increase. Major modernisation, and specialised training again are called for.
One read in 2005 or so that the CBI is 'revamping' itself, and planning to hire a consultancy agency, probably Mackenzie, to assist them in this endeavour. While one appreciates the urge to 'modernise', surely Mackenzie is not the agency to do the job. All they will do is to hire a few retired CBI personnel to tell the CBI how to revamp itself. After all the CBI is not a commercial or business enterprise, to seek Mackenzie's help. Instead close association with the FBI or Scotland Yard or similar agencies from Canada or Australia to get good technical advice, surely would be the better option.
The CBI is still looked up to by a desperate public, despite widespread allegations of its lack of objectivity and amenability to political pressure. At the lower levels of the organisation, reputation of many of their functionaries is not savoury – the drawing room talk in industry circles frequently refers to 'influencing' the investigation and the corresponding levels of consideration that will swing the deal. Indeed there always is quiet confidence in industry circles that they could 'handle' any contingencies, by suitably dealing at lower levels of CBI. Surely, a major step to clean up the image of the CBI is in order. Towards this, it is essential to ensure that the director of the CBI, through an official directive, cannot be given any post-retirement gubernatorial or other assignment. It can be surmised that the main reason why the successive CBI directors take direction directly from the prime minister of the day relates to their desire to pave the way for a post-retirement 'cushy' assignment.
The Enforcement Directorate is the main investigative arm of the finance ministry, charged with discovering tax-evasion, and investigating tax-frauds. As can be imagined, they have a major role to play in the economy. In a country where black money plays a dominant role in a number of transactions, and where tax evasion is rampant, this is another agency which has not effectively performed the functions assigned to it. One rarely comes across major discoveries made by this agency and the severe penalties imposed as a result of its initiative. One cannot escape the feeling that its primary function is to support the political masters, particularly in the finance ministry, in having an upper hand over the large industrial houses. In the process, some officials of the directorate at middle and lower levels, are reputed to be among the richest government servants; anecdotal versions of large sums changing hands to silence or derail major tax-fraud investigations abound in business circles.
Union Public Service Commission (UPSC) – fair competition, may the best win . . .
The first Public Service Commission was set up on 1 October 1926, followed by the Federal Public Service Commission in 1935 during the British period. The Constituent Assembly, after Independence, saw the need for giving a secure and autonomous status to Public Service Commissions both at federal and provincial levels for ensuring unbiased recruitment to civil services as also for protection of service interests. With the promulgation of the new Constitution for independent India on 26 January 1950, the Federal Public Service Commission was accorded a constitutional status as an autonomous entity and given the title Union Public Service Commission (UPSC).
The Commission is managed by ten members in addition to the chairman. The chairman and the members are nominated by the government of the day as vacancies arise. The UPSC is charged with recruitment to various civil services through a series of annual competitive examinations. It conducts over a dozen examinations a year to meet the recruitment needs of different services. Recruitment to the IAS, IFS, IPS and other Class I Central services falls under the purview of the UPSC. In addition, selection through interviews or examination-cum-interviews for designated posts, are also undertaken by the UPSC. Besides, disciplinary cases of different categories of civil servants are also referred to the commission; it should be noted that the advice of the commission is of a binding nature.
Having discussed the performance of a number of constitutional and executive bodies with below-par performance, it is indeed gratifying to refer to an institution created by the Constitution that has discharged its duties over time in a commendable manner. In the past sixty years or so, none has raised any doubts about the integrity of the competitive examination process, as conducted by the UPSC – this is a remarkable feature, underlying the stability and quality of performance. The internal systems are so geared that the process of setting the papers, having them evaluated, and subsequently arranging for unbiased selection interviews on a large scale, is undertaken quietly, efficiently, and in an exemplary manner.
Credit should go to the successive chairmen of the commission who have guided the affairs of this body with wisdom and efficacy, and have ensured its independence and autonomous functioning, keeping it shielded from attempts by the government to intervene in its affairs. It is thus that the process of the selection of the All India Service officers, one of the most important tasks of the commission, is still held in high esteem – none has raised a voice or a finger against its integrity. Fortunately, appointments to the posts of chairman or members, till today, has generally been free from the taint of the political hand, which probably explains why the appointments to these positions have generally been on merits. However, with political interference entering every aspect of administration, the time is not far off when appointments to these posts are made to reward not merit but loyalty or collaboration. To prevent this, it will be wise to include this body also in the list of agencies, whose management is to be appointed by a collegium, as defined elsewhere. After all, the government of the day, of whatever complexion, has forfeited the right to appoint persons to high office, through past performance.
The process of selection to ad hoc posts through interviews or the task of handling disciplinary cases and other matters, perhaps do not receive the same level of attention inside the commission. Sometimes these processes could be dilatory and follow autonomous paths, unrelated to the needs of the indenting ministry. This weakness has been perceived and noted in many quarters.
The Constitution also provides for Public Service Commissions in states, for recruitment to civil service posts in the purview of each state. Their roles in the states are roughly on the same footing as the role played by the UPSC at the Centre. While many of the State Public Service Commissions have performed their tasks with credibility, a number of scandals have erupted in recent years, relating to selections in exchange for bribes and similar malpractices. In some of these state commissions, these have not been isolated incidents, but the result of systematic malfeasance by one or more members, in conspiracy with the staff. No greater disservice can be done by an official, than recruiting undeserving persons, for monetary considerations. Apart from diluting the quality of recruitment, a recruit who has entered through this route, will pollute the atmosphere for the next thirty-five years of his service career. In proven cases of malpractices, highest possible punishment is deserved. It should be noted that ultimately, good governance is dependent on the quality of people who man the supervisory posts. Appointments of members of State Public Service Commissions frequently are done by
the political executive to reward loyalty, even when the individual selected is well recognised to have low morals. Sadly, many state governments are guilty in this regard. It is all the more necessary that appointments to such posts should be done by a state level collegium.
The Competition Commission – the body which does not exist!
The progress of the establishment of the Competition Commission of India (CCI), meant to replace the erstwhile Monopolies and Restrictive Trades Practices Commission (MRTPC), will bring interesting insights. The perception has been created that the government was trying to encroach into the judiciary's space by replacing a judge with a bureaucrat. It is necessary to understand that the CCI is designed to perform a widely different set of functions than was performed by the erstwhile MRTPC. It is expected to be an important tool to regulate, in a healthy proactive manner, the growth of corporates in a complex and growing economy, functioning in an era of rapid capital movements and with large domestic and multinational corporates in the fray, in the background where new technologies emerge continuously at a furious space. The need is for a savvy regulator, au fait with the latest advances in corporate practices, fully familiar with the use and abuse of financial instruments and company-law provisions, in an era of rapid technology changes. The issues to be tackled are not merely consideration of inter-se interests of, say, the government versus bidders, or disputes between different licensees, or settlement of grievances relating to compensation, etc. The canvas is much larger and in a different dimension. The need is to regulate combines, recommend division of an enterprise as required, and to undertake competition advocacy. The body needs to take into account the very large interest of the common citizen, who may not be adequately represented, if at all, in a proceeding before the CCI. Its function is not envisaged to be quasi-judicial like its predecessor MRTPC, but to be a body corporate, reaching out for memoranda of understandings with foreign agencies and providing broad directions on issues like determination of market domination, market concentration, elasticity of demand, predatory pricing, etc. This is a proactive economic body, to contend with complex, technical and corporate issues; in short to assist in critically guiding the traffic in our economic space. Its role is not merely to do post-mortem examinations or adjudicate compensation disputes between parties.
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