Good idea to look at the protection Article 311 gives to bureaucrats should they want it
Right through the Coalgate saga, there is not one letter from the CBI chief protesting about being asked to show the report to politicians/bureaucrats
With the Supreme Court coming down heavily on the government, and rightly so, for trying to influence the CBI probe, the clamour for an independent CBI has got yet another lease of life. Governments are corrupt and venal by nature, the argument goes, and the only hope the people have of being able to fix this is to have an independent investigating authority—but that, as the Court has shown, has been badly compromised.
So you have various solutions being bandied about to ‘fix’ the CBI’s reporting structure, never mind that the purpose of the CBI is to be the investigating arm of the government. Get the CBI to report to Parliament is one solution offered; get it to report to group of 4, or is that 5, group of eminent and uncorruptible persons like Kiran Bedi and Anna Hazare or Arvind Kejriwal; have an independent counsel—sort of like public prosecutors—who go after corrupt government officials and have the CBI report to them in high-profile cases like the Bill Clinton-Kenneth Starr one; make the CBI a Constitutional body like the Election Commission (EC) or the Comptroller and Auditor General (CAG) whose head cannot be removed by the government of the day. There are many more nuanced versions of these, but these are the broad range of solutions on offer.
And why not? The CBI has changed its view on whether a politician needs to be charged or not in so many corruption cases where the person being charged is/can be a valuable ally of the government, you begin to wonder if the investigating body should be called the Coalition Builders of India.
Given the Court’s directives, the government will have to come up with some workable solutions to giving the CBI genuine autonomy, but it would be useful to keep some caveats in mind. What happens if the 4 or 5 gentlepersons of impeccable integrity chosen to keep a watch on the CBI are influenced in some way—remember the dictum of power corrupting and absolute power corrupting absolutely? If Parliamentarians cannot be trusted to even vote on Bills, to work in the house for a minimum number of hours, how can they be expected to look after the CBI—in any case, the farcical JPC hearings in the 2G case should make it clear to everyone that Parliament works along party lines.
The Constitutional status for the CBI sounds the best bet and needs to be explored thoroughly, but this is not the panacea it’s supposed to be either. If, for the sake of argument, the head of the CBI turns out to be a corrupt person, or someone seen to be acting to protect the government, how do you remove him/her from a Constitutional post? Keep in mind our sad history of impeaching judges. Let’s also keep in mind that, till before TN Seshan took over as the Chief Election Commissioner, how many politicians took the EC seriously? Before Vinod Rai became the CAG, how many people took CAG reports that seriously? And even in the case of the CAG, while its 2G and Coalgate reports stunned the nation into taking corruption seriously, there are many reports where the CAG has got it so wrong it is embarrassing. In some cases, losses to be incurred over 30 years have been discounted and the loss estimates presented in terms of net present value, in others they’ve just been added up, dramatically exaggerating the losses. In the case of coal, the CAG caught the scam, but its refusal to discount profit streams or to simply assume that underground mines made no profits (so there was no scam in those allotments) make little sense (http://goo.gl/HQdvN)—bringing down the estimate of losses by a tenth from the draft report certainly casts a shadow over the CAG’s credibility. Equating losses for Air India—which the CAG said was a symbol of the state!—with granting bilaterals was bizarre. As was the recent report slamming the CACP for recommending support prices in an arbitrary manner—in some cases, at 20% above farmer’s costs, in some cases 40%—which showed equal lack of application in mind since the prices were fixed with a view to influence what crop the farmer grew.
The most important thing, and hardly discussed by too many despite the Court’s strictures, is the role of bureaucrats and the Constitutional protection given to them. Article 311 of the Constitution gives complete protection to bureaucrats, saying “no person … shall be dismissed or removed by a authority subordinate to that by which he was appointed”—since all appointments are made by the President of India, this means no government can dismiss a bureaucrat. Nor, the second part of the Article goes on to say, can the person be “reduced in rank” except after an inquiry process. Indeed, under the rules of business, even if a minister overrules a bureaucrat, s/he can ask for the file to be recirculated for everyone to give a fresh opinion.
Yet, when is the last time you heard a bureaucrat complain in writing about a political decision? In even the 2G matter, some of the tallest bureaucrats in the country had the lamest excuses about why they didn’t pursue their original quest for auctions—in all the documents being made public, you don’t find anyone going out of his way to ensure A Raja didn’t get away with what he wanted. In other cases, bureaucrats talk of ‘pressure’ being brought to bear on them. What pressure? The minister, even the Prime Minister, can’t sack the bureaucrat—at best s/he can be transferred, even the pay cannot be reduced.
If officials don’t want to stand up for anything despite having such a great degree of protection, frankly there is little that any kind of Constitutional or other protection can give the CBI. If, even after the deletions at the government’s request which the CBI chief has said were “significant”, his affidavit goes on to say this “neither altered the central theme of the report, nor shifted the focus of inquiries or investigations in any manner”, it is the CBI that needs to introspect a lot more than just the government.