Appointment and disappointment

The September 7 decision to appoint Polayil Joseph Thomas, one of the seniormost officers of the Indian Administrative Service (IAS), as the Central Vigilance Co­m­missioner (CVC), has raised dou­b­ts about whether the Union go­ve­r­nment is serious about investigating the second-generation (2G) tel­e­communications spectrum sc­a­nd­al that has caused a huge loss to the country’s exchequer. Without questioning Mr Thomas’ integrity and also keeping in mind the fact th­at he was not the top bureaucrat in the Department of Telecommunicati­ons (DoT) when the spectrum scam occurred, the point simply is that the way in which he was appointed has raised a number of doubts about the government’s intentions.
The office of the CVC was conceived as the apex vigilance institution in the Government of India that is supposed to be free of control from any executive authority. The CVC is meant to monitor all vigilance activities relating to government bodies and it is also supposed to advise various authorities in Central government organisations on “planning, executing, reviewing and reforming” all activities related to anti-corruption vigilance. After the Central Vigilance Commission Act was passed by both Houses of Parliament in 2003, the following year the government passed a resolution on “public interest disclosure and protection of informer” by making the CVC the “designated agency to receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action”.
In 1993, the Supreme Court directed the government to ensure that the selection of the CVC should be made by a committee comprising the Prime Minister, the home minister and the Leader of the Opposition in the Lok Sabha. The country’s apex court also stated that the selection of the CVC should be made from a panel of “outstanding civil servants and others with impeccable integrity”. The Central Vigilance Commission Ordinance of 1998 — and the bill introduced in Parliament later — co­nfined the selection of the CVC from a “panel of civil servants” alone while the phrases “outstanding” and “impeccable integrity” were not included.
The manner in which Mr Thomas was selected and appointed as the new CVC indicates that the United Progressive Alliance government has, at best, perfunctorily sought to adhere to the directions of the Su­pr­eme Court of consulting the Lea­der of the Opposition before appo­inting an officer to this important po­sition. At worst, the government seems reluctant to expedite the on­g­oing inquiries into the spectrum scam that was presided over by co­m­munications minister A. Raja, in­vestigations that are being currently conducted by the Central Bur­e­au of Investigation (CBI) after a re­ference was made to it by the CVC.
It is hardly surprising that the appointment of Mr Thomas as CVC by Prime Minister Manmohan Singh and Union home minister P. Chidambaram by over-ruling the objections raised by Sushma Swaraj (who, incidentally, also holds a Cabinet rank as Leader of the Opposition) raised a big hue and cry, since he had just demitted office as secretary, DoT. The Bharatiya Janata Party has alleged that Mr Thomas was chosen because he would not rigorously pursue investigations into the 2G spectrum scandal since he “secured” a note from the law ministry while he was DoT secretary which argues that the allocation of electro-magnetic airwaves, or spectrum, used for telecommunications was part of official “policy” that cannot be questioned either by the CVC or the Comptroller and Auditor General (CAG) of India.
The seven-page response of the law ministry — to the DoT’s queries on whether spectrum allocation was a policy issue — quotes various Supreme Court rulings and contends that the CVC, the CAG and “other watchdogs no doubt pl­ay a very significant role in any de­­mocracy, but they being constit­utional/statutory functionaries ca­n­not exceed the role assigned to th­em under the Constitution or law”. The law ministry’s response adds: “Even the courts refrain fr­om que­stioning the wisdom of the government in policy matters, unl­e­ss the policy decision is patently arbitrary, discriminatory or malafide”.
The DoT note to the law ministry on the spectrum allocation issue apparently moved with remarkable alacrity between August 10, 2010, and August 12 from official to official before the signatures of minister Mr Raja and secretary Mr Thomas were appended. That’s not all. Wi­t­hin a day, on August 13, the law mi­nistry responded to the DoT’s queries. Such expeditiousness is ha­rdly the hallmark of Indian bureaucracy.
Be that as it may, in appointing Mr Thomas as the head of this important anti-corruption body, the government has not really adhered to the spirit of the Supreme Court’s ruling. With Ms Swaraj’s opposition to the appointment, there was no unanimity in selecting the CVC. Secondly, even if one believes that Mr Thomas is an officer of integrity, the government could have easily avoided controversy by sele­cting one of the two other IAS officers whose names figured on the shortlist, namely, Bijoy Chatterjee, secretary, department of chemic­a­ls & petrochemicals or S. Krishnan, who retired as secretary, fertilisers.
As telecom secretary, Mr Thomas may have had to support his depa­rtment’s contention that the CVC had no jurisdiction to investigate a “policy” decision of the government, even if the par­ticular policy was rather dubious since it caused a hu­ge loss to the country running into more than `60,000 crores. The Prime Minister has reportedly cl­a­imed that Mr Th­o­mas was the best choice for the new CVC. Ho­w­ever, in this instance, Caesar’s wife is not en­t­irely above suspicion.
On Monday, a two-judge bench of the Supreme Co­urt comprising Justices G.S. Si­n­ghvi and A.K. Ganguly issued no­tices to Mr Raja and various ag­e­ncies of the Union government (such as the DoT, the CBI, the En­f­o­rcement Directorate and the income-tax department) to respond wi­t­hin 10 days to a public interest pe­tition urging the court to monitor a CBI investigation into the alleged irregularities in the 2008 sale and al­lotment of 2G spectrum. Among the petitioners is the author of this column.

Paranjoy Guha Thakurta is an educator and commentator