BY all yardsticks, it was a judicial coup. Last week, when a three-member Supreme Court bench headed by Justice S.P. Bharucha pressured the government to reinstate M.K. Bezbaruah as enforcement director, just a month after he was summarily transferred from the post, the message was clear: in the balance of power among the arms of the state, the judiciary would like to set the rules. In effect, this means that the courts are once again ready to take on administrative functions and insulate investigating agencies from political interference.
The government's volte-face on Bezbaruah is telling in many respects. It has brought to the fore the inexperience of the BJP government and the lack of coordination between the law ministry and the PMO. And at a political level, a bid to subvert the system by arbitrarily transferring a bureaucrat has been exposed. The result? After decades of an uneasy balance between the judges on one side and an obdurate legislature-executive combine on the other, things have again reached a flashpoint. The change, this time round, is that the bureaucracy does not appear to be working in tandem with the political leadership but, on the contrary, seems eager to safeguard its position vis-avis both the courts and the ministers.
But the political leadership's tendency to blatantly misuse power by removing unpliable officers from key posts is widespread. Close on the heels of Bezbaruah's transfer, a fresh controversy arose in the portals of New Delhi's Nirman Bhawan. The standoff between Union urban development minister Ram Jethmalani and his senior-most bureaucrat, Kiran Aggrawal, secretary to the ministry, centred on reviving a contract between HUDCO and Pawan Sachdeva, of MS Shoes fame. This took an ugly turn when Jethmalani took up the issue of "insubordination" with the prime minister and referred the "leak" to the CBI. Characteristically, Jethmalani remains blase, claiming, "You can see the files. Nothing illegal has been done by me."
But back to the Bezbaruah case. Here, the crux of the matter is more than an 'arbitrary' transfer, it pertains to interference in investigation. Besides, not only did the government arbitrarily transfer the enforcement director, it also chose to defend its decision in a manner not entirely above board.
The controversy arose when the government's affidavit—filed by solicitor general Santosh Hegde on August 17, in the Indian Bank case—misquoted Justice J.S. Verma's 1997 judgement in the hawala case. The judgement had quoted an office memorandum, submitted by the government, which laid down that an independent review committee (set up on November 18, 1997) would suggest changes in investigating agencies to ensure that there would be "no arbitrary withdrawals or transfer of persons of the concerned functionaries". Defending its stand on Bezbaruah's transfer, the government's recent affidavit omitted the words 'transfer of persons'.
The courts were far from understanding. "The least we can say is that the government has been extremely cavalier in its attitude," thundered Justice Bharucha during the open court hearing last week. On its part, the political leadership, too, has taken up the issue. It is learnt that prime minister A.B. Vajpayee has ordered an enquiry into how an incorrect affidavit was filed by Shankar Aggarwal, director, department of personnel and training.
Already, everyone is passing the buck. "About 40 per cent of papers relating to the personnel department come to the establishment office. Therefore, people are alleging that this affidavit was filed by us," says establishment offi-cer T. Rajendran Nair.
HOWEVER, the rumour mills suggest that the affidavit was vetted by senior bureaucrats in the PMO. What perhaps gives additional credence to these charges is the fact that Bezbaruah, in his capacity as ED director, had written six letters to the then revenue secretary, N.K. Singh, seeking the removal of the ED deputy director, Ashok Aggarwal. It is reliably learnt that Bezbaruah had complained of a nexus between controversial godman Chandraswami and Aggarwal and that the latter had been peddling influence in the PMO to have Bezbaruah removed.
On hindsight, it seems no one had quite taken into account the court's determination to unshackle investigative agencies. "The reinstatement of the enforcement director is a symbolic victory. At least, it will deter the government from taking such steps in future," says Supreme Court advocate Kamini Jaiswal, who is assisting amicus curiae Anil Diwan in the Indian Bank case.
The history of investigative agencies is littered with examples of how the government has fixed uncomfortable officers: the shunting of CBI director A.P. Mukherjee when he refused to file an FIR in the Bofors case in 1990; joint director, CBI, N.K. Singh's transfer to his home state Orissa during the St Kitts probe; the attempted hushing-up of Harshad Mehta's allegations against Narasimha Rao during CBI director S.K. Datta's tenure, and now Bezbaruah.
The ED director, however, remains unfazed. "It is work as usual. I hope that all law enforcement officers will draw the right lessons from these orders and discharge their duties objectively and resolutely," he says, back in his Lok Nayak Bhawan office. But his stint there may not last long. The Central Vigilance Commission ordinance states that the post of the enforcement director be occupied by a bureaucrat of the rank of an additional secretary; Bezbaruah, who belongs to the 1968 batch, does not have the requisite seniority.
Therein lies the problem. Senior CBI officials feel that the ordinance actually violates the spirit of Justice Verma's judgement. Says Anil Diwan: "The ordinance is violative of Article 14 and the rule of law. It flies in the face of the Supreme Court judgement." Verma, who had laid down the blueprint for the ordinance, concurs: "The attempt was not to target individuals. We were concerned with the setting up of a structure which would be as foolproof as possible. But it doesn't seem to be working that way."
Much of this pessimism stems from the fact that despite the recent judicial activism—which started as routine supervision and evolved into micro-management of individual cases—nothing concrete had emerged. Says a senior ED official: "Things have worsened with the inclusion of the single directive in the CVC ordinance." The single directive—which bars the investigation of officials above the post of joint secretary—has been a source of worry ever since the courts started monitoring the Rs 1,300-crore Indian Bank scam in 1996. For, despite concrete evidence about the involvement of senior officials, the CBI has been unable to proceed.
But all is not bleak. The three-judge bench hearing the Indian Bank case has already displayed a keen interest in reviewing the ordinance. It has asked the solicitor general to file a written response to Diwan's queries. Close on the heels of this, the Centre for Public Interest Litigation, represented by advocate Prashant Bhushan, also submitted a judicial review petition challenging the ordinance.
In case the courts decide to adopt an aggressive posture on the single directive, the government may have no choice but to nullify the ordinance. For within the government too, largely due to Jethmalani's open criticism of "the manner in which the ordinance draft was hijacked by a lobby of bureaucrats", an exercise to pin responsibility has begun. Could this finally lead to a clean-up of the stables?