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IS the appointment of N. Vittal as Central Vigilance Commissioner (CVC) going against the grain of the 1997 Supreme Court ruling which directed the Centre to set up a commission to oversee the functioning of investigative agencies like the CBI and the Enforcement Directorate? All that the court had wanted is to protect the agencies from executive and legislative interference. But it hasn't quite worked out that way.
Vittal, a 1962 batch IAS officer, is suitably low-profile but what has made his appointment controversial is the manner in which certain Supreme Court directives as well as Law Commission recommendations have been flouted while framing the CVC ordinance. The most damaging point of conflict revolves around the selection of the CVC.
Justice J.S. Verma and the Law Commission had stated that the CVC's post would not be restricted to a bureaucrat. But the ordinance clearly lays down that "the CVC and the two vigilance commissioners shall be appointed from persons who are or have been in an all India service". Says Justice Jeevan Reddy, chairman of the Law Commission: "We said very clearly that if appropriate qualified persons outside the Civil Services are found, they may be appointed. In fact, we have issued a corrigendum to that effect."
The ordinance makes it mandatory that only bureaucrats can make the grade—and even excludes police officers and retired judges. This, lawyers as well as police officials allege, has been done to keep the post of CVC within bureaucratic circles. Union minister for urban development Ram Jethmalani is fuming: "It goes against both the Supreme Court and the Law Commission's recommendations. A lobby of bureaucrats has worked to protect its own interests."
Legal experts have found fault with another clause. The ordinance has reintroduced the 'Single Directive', a departmental guideline introduced by the government in 1988, which makes it mandatory for the CBI to seek a higher authority's (now, the CVC) approval before proceeding against officials of the level of joint secretaries and above. In essence, the move provides immunity to senior government officials. But this goes against Justice Verma's order which had held the 'Single Directive' invalid. He had categorically stated that "the law does not classify offenders differently for treatment thereunder, including investigations of offences according to their status in life".
Says a senior CBI official: "The inclusion of the 'Single Directive' actually goes against the Constitution which provides equality to all individuals." Vittal, however, does not subscribe to this point of view: "As a government servant, I would justify the inclusion of the Single Directive. But what we need to guard against is that what has been given as a safety net should not become a shield for the corrupt."
Trouble seems to be in the offing for the CVC from other quarters too. There are indications that public interest groups are planning to file a review petition in the Supreme Court challenging the ordinance. The issue is likely to be raised by amicus curiae Anil Diwan on September 8, when the Supreme Court bench headed by Justice S.P. Bharucha hears the Indian Bank case.
Yet another point where the ordinance has gone against recommendations is on the issue of "supervision". While both the Supreme Court and the Law Commission had provided that the CVC would supervise the working of the CBI "in all respects", the ordinance restricts the supervision only to cases involving the Prevention of Corruption Act. This implies that all cases involving terrorism, espionage and murders would not be within the ambit of the CVC.
Finally, the inclusion of the secretary of the personnel department as an ex-officio member of the Vigilance Commission has raised the hackles of legal experts. "While all other members are to be appointed by the selection committee, the personnel secretary will be automatically appointed, which will give the post a statutory status," argues a member of the
Law Commission. This point has given rise to insinuations that Arvind Verma, secretary, Department of Personnel, engineered the re-drafting of the ordinance. "How can you question the ordinance? It has been issued by the president," he told Outlook. For Verma, along with other bureaucrats, is aware that any attempts to attack the ordinance by provoking a contempt of Justice Verma's judgement may well prove futile.
Though the ordinance goes against Justice Verma's 1997 judgement which sought to unshackle investigating agencies, it does not qualify as contempt of court. Says Supreme Court advocate Ashok Panda: "A presidential ordinance enjoys immunity against contempt proceedings. The only option is to file a review petition which will make the government reconsider its decision."
The new CVC, meanwhile, is only taking his first few tentative steps in his latest assignment. "He's the right man in the right place," is how a former colleague from the Ministry of Telecommunications describes him. Vittal, who has had a three-decade stint as administrator, is not so sure: "One great advantage that bureaucrats have is ignorance.Since I am ignorant about my new assignment, I will make every effort to learn without any pre-conceived ideas."
But Vittal, despite his seemingly easy ways, is known to be tough. His former colleagues remember the anti-corruption stance he adopted as chairman of the Telecom Board when he waged a running battle against the then telecom minister Sukh Ram. Vittal was shifted from the Telecom Board in September 1994 after he took up the issue of violation of procedures in tender evaluations with then PM Narasimha Rao.
"I have been in situations where pressures exist and I know how to deal with them," said Vittal a few hours before he was to take the oath as CVC. The soft-spoken former bureaucrat has quite a task at hand. The CVC, according to the ordinance, shall "exercise superintendence over the functioning of the Delhi Special Police Establishment Act (the CBI), grant approval for investigations" and chair a committee for the appointment of the director and other officials of the ED. Besides, he has to supervise the handling of individual cases by the CBI, to prevent any political interference.
But how will the new appointment affect the CBI? According to officials, the ordinance has placed the agency under yet another bureaucratic eye and also shackled it through the Single Directive. Says a CBI official: "Legally, only a magistrate has the power to supervise investigations. How can the CVC be handed these powers without giving it a quasi-judicial status?"
But Vittal envisages his role more as an "administrative" supervisor. Says he: "I don't see myself as a super-cop with extraordinary powers. I believe in the pro-active method of drawing from other people's strengths." Vittal, who is regarded as a "thinker and planner", says he plans to work like "a famous Chinese general who won battles without firing a single shot". Given the fact that his stint is going to be a turbulent, four-year war against corruption, Vittal may find it difficult to follow his adage. Adds a former colleague: "He enjoys a statutory status like the chief election commissioner, nobody can touch him for four years." But will Vittal do a Seshan? That is anybody's guess.