More by accident than design, the UPA II (United Progressive Alliance) Government which governed from 2009 to 2014 became a textbook case of all round poor governance by making practically every organisation for governance dysfunctional. This performance of UPA II looks tragically ironical when we read the following passages in the recent best seller by Sanjaya Baru, ‘The Accidental Prime Minister –The Making and Unmaking of Manmohan Singh’.
Excerpts from the book
“UPA’s first Parliament session began on a rocky note. From the prime minister’s point of view, it was a sad note. For the first time in parliamentary history, a newly elected prime minister was neither allowed to introduce his council of ministers to the Parliament, nor given the privilege of replying to the debate on the motion of thanks to the President for his address to the Parliament.”
“Dr Singh returned home upset at the turn of events. It was then decided that the statement he had intended to make in the Parliament be read out as an address to the nation on television. Mani Dixit and I were asked to redraft it as an “Address to the Nation.” The template for the address was the NCMP (National Common Minimum Programme). After listing the new government’s agenda, I added a paragraph that said – No objective in this development agenda can be met if we do not reform the instrument in our hand with which we have to work, namely the government and public institutions. Clearly, this will be my main concern and challenge in the days to come. It is a paragraph that many have pointed to over the years as the one that gave them great hope and the one agenda item on which the PM failed to deliver.”
Brazen misuse of CBI
Two of the key organisations of governance which played a significant role in UPA II are the CBI and CAG. The CBI is the premier police organisation and a major instrument in the hands of the Government of India (GOI) for investigating and bringing to book cases of corruption and major crimes. In the politically volatile era of the UPA II it became an effective instrument for the Indian National Congress to ensure the political support of allies like the BSP (Mayawati) and SP (Mulayam Singh). Whenever these parties did not support the Congress led UPA II, the CBI was directed to initiate harsh legal action against them and when they toed the line of the government, the CBI went easy on them. The misuse of CBI by the government was so brazen and cynical that the Supreme Court had to intervene and pull up the CBI many a times. Sometimes, the court distrusted CBI’s professionalism to such an extent that it set up Special Investigation Teams (SIT) and monitored the cases directly.
The brazen misuse of CBI led to the opposition party BJP, openly labelling the CBI as the Congress Bureau of Investigation.
Legal background to Article 355 and 356 of the Constitution of India
The CBI has a very special legal background. The 7th schedule of the Constitution lists the subjects allotted to the Union Government and the State Government as well as subjects which can be handled concurrently by both.
These are list I [Union list] list 2 [States list] and list 3 [concurrent list]. Police, including Railway and Village Police, subject to the provisions of entry 2A of list I (the Union list) is allotted to the states (entry 2). List I of the 7th schedule, 2A says, deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any state in aid of the civil power: powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. The Constitution of India which was framed between September 1949 and January 1950 had a number of distinguished lawyers as members. Many of them were the leaders of India’s struggle for Independence, led by Mahatma Gandhi. The Constitution was largely based on the Government of India Act 1935.
This Act represented the culmination of the process of increasing self-government in India under the colonial rule. The British were the paramount power when India was a colony. Nearly one-third of India was under native states of varying sizes and development. The British also adopted different models of governance so far as the frontier areas like the North-West and North-East were concerned.
The main thrust of the GOI Act 1935 was that while the central government retained under its exclusive jurisdiction, subjects like currency, armed forces, national defense and foreign affairs, the residual powers rested in the provinces/states. The experience of the operation of the GOI Act 1935 for the next 14 years up to 1949 highlighted the need for ensuring overall peace and law and order as a national priority. Our founding fathers of the Constitution therefore dramatically reversed the central thrust of the 1935 Act and made a radical shift to strengthen the central government. Instead of India becoming a federation of states, it was converted into a union of states with the residual powers resting with the central or union government.
It may be mentioned here that in the evolution of the United States of America, the reverse process took place. Initially the nation of America became a nation for migrants from other countries especially Britain and the European continent. Thirteen such states banded together as the United States of America and declared independence in 1775. The Civil War of 1861-1865 took place because the southern states which depended on slave labour of the blacks for their economic needs of growing cotton and the northern states which were industrialised wanted to abolish slavery. The southern states were defeated in the war and this finally resulted in the emergence of a single nation – the United States of America under the visionary leadership of the great President Abraham Lincoln.
Having learnt the lessons of history and the experience of the Government of India Act 1935, our Constitution makers made two key provisions in the Constitution – Articles 355 and 356 – which read as follows:
Article 355 – Duty of the Union to protect states against external aggression and internal disturbance: it shall be the duty of the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution.
Article 356 – Provision in case of failure of constitutional machinery in states: This is the notorious Article under which the President’s Rule or Central Government’s rule can be introduced in a state. It provides that the President on receipt of a report from the Governor of a state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution, the President may by proclamation assume to himself all or any of the functions of the government of the state.
CBI facing an existential problem
The credibility of the CBI was systematically damaged and lost during the UPA II regime. The earlier reputation built by the CBI was because of the competence and professionalism deployed by the officials of the CBI from the time of its formation in 1963 up to 1977. As the subject of police is within the jurisdiction of the state under the Constitution, a legal sleight of hand had to be used to give legal cover to the CBI. The Delhi Special Police Establishment Act was formed in 1961, especially to handle cases of law and order and investigation of crimes in the capital city of Delhi. This Act was amended to be used for criminal investigations of the central government employees and crimes relating to central government property, all over the country. However as the states have exclusive jurisdictions under list 2, the CBI can investigate cases involving central government employees only with the concurrence of the state government.
In recent times, the very legal basis of CBI functioning under the Delhi Special Establishment Act has been challenged in the Assam High Court, which has held the law to be invalid. An appeal of the central government is pending with the Supreme Court. The CBI is therefore facing an existential problem today. It has no credibility thanks to its recent record in handling of scams during UPA II and its very legal basis is under a cloud.
Measures to restore credibility
A few months ago, Arvind Kejriwal of the Aam Aadmi Party, by going on hunger strike on the issue of Delhi Chief Minister’s control over the Delhi police highlighted the constitutional problem arising from the distribution of the powers relating to the police under Schedule VII. I would suggest the following solutions for both these problems.
- The Constitutional conundrum highlighted by Kejriwal can be solved by the creation of a union police force like the United States federal police. This could be manned by exservicemen primarily and operated along with the state police in the same jurisdiction including investigation of crimes. This will create for the citizen, a choice of the police force he/she wants to complain to when any crime takes place. That police force alone will investigate and pursue the case till its conclusion.
- This will also help to break the monopoly and the rampant and widespread corruption in the state police forces.
- Ultimately the credibility of any organisation depends on the type of people who operate the system. The entire process of selection and operation of the CBI can be radically improved by ensuring total transparency regarding qualification and selection process for recruiting people. The process of selection should not only be transparent but such that there should be a TINA (There Is No Alternative) factor built into it.
CAG should adopt CVC model
The CAG is the second organisation which rose to prominence during the UPA II regime. Surprisingly this was for diametrically opposite reasons which made CBI an organisation without credibility. Mr Vinod Rai, the ex- Comptroller and Auditor General of India, was not only a competent officer, but also was very bold in highlighting the major scams which came under the scanner of the audit department like the 2G scam, the CWG (Common Wealth Games) scam etc.
The UPA II government which felt nervous and threatened by his actions tried to question his functioning and complained that the CAG was exceeding its powers visualised under the Constitution Article148. The government tried to strike at the root of the organisation by choosing a person who had earlier served as Defence Secretary. However, with defence scams like the helicopter deal, etc coming to light, it created doubts in the minds of many concerned citizens, whether the new CAG will be able to objectively discharge his duties.
In fact a PIL (Public Interest Litigation) has been filed by eminent persons like the former cabinet secretary and chief election commissioner, challenging his selection. The CAG as an organisation, generally has built an excellent track record of professional and competent performance over the last five decades. Its future reputation can be ensured by introducing the principle of transparent selection process with the TINA factor built in as in the case of the CBI. The imminent change of regime following the UPA II is an excellent opportunity to rebuild and restore the credibility of both the CBI and CAG.
As far as CAG is concerned, we must adopt the model of CVC (Central Vigilance Committee) for selection. A high power selection committee with the Prime Minister, Finance Minister, the leader of the opposition in the Lok Sabha and the Rajya Sabha and the Chief Justice of India along with the outgoing CAG must be formed. The name of the candidate must be submitted to the President for approval.
The CAG like the CVC must be debarred for life from holding any office of profit after his single term of office is over.
These steps will usher a better era of good governance.