The nation witnessed a tragedy unfold in slow motion as the government and the Supreme Court clashed on the appointment of the Central Vigilance Commissioner (CVC). In the end the court won; but to do so it had to step into some new territory in its jurisdiction. The tragedy is not about a good man humiliated, but about the erosion of institutions that are the foundation of our democracy. The silver lining in this dark cloud of despair is the fact that the court acted with exemplary impartiality on the plea of a dedicated lawyer who is also the source of the questions about the integrity of several of its senior luminaries.
But a great deal needs to be done to restore the faith of informed opinion in the legitimacy of our democratic system. The argument that the common people do not care for all this as long as the political class delivers roti, kapda, makan and bijli, pani, sadak is short-sighted. The middle class matters, the media and the intellectual class counts because they, even more than the masses have toppled governments, as we saw in Egypt recently and in Eastern Europe sometime back.
We must begin with the watchmen — the people who man the institutions who guard the rule of law, the rights of individuals and the probity of governance. One can include in this the higher judiciary (the Supreme Court and High Courts), the Comptroller and Auditor General and Chief Vigilance Commssioner, the Central Bureau of Investigation, the Chief Information Commissioner who is the custodian of the powerful RTI Act and the Election Commissioners.
The central goal must be to ensure that the right person is chosen and that this person’s independence is protected against the normal tendency of the rich and the powerful to corrupt others to serve their ends. The most common temptation is some post retirement benefit and protecting independence also means putting constraints on these inveiglements. In fact, when the Roman satirist Juvenal asked quis custodiet ipsos custodes, who will watch the watchmen, his concern was the loose behaviour of women and his question arose because the first ones they offered their favours to were the watchmen!
The selection of persons for the higher judiciary is today the responsibility of a collegium of judges though the power of final appointment rests with the government. There are stories about horse trading, “you support my candidate I will support yours”, regional biases and worse. There is a case for depoliticising the process and appointing a Judicial Commission charged with this exclusive responsibility and given clear guidelines for this purpose. If gender, caste and regional balance are important for legitimacy, then put it in the guidelines and not in the ad hoc politicking that goes on now.
Supreme Court judges should be appointed for life. The active bench may consist of only the younger judges, say those below the current retirement age of 65, and the older judges would be available to the government for tribunals, commissions of inquiry and similar responsibilities of which there is no shortage. Even if there were, the financial burden of a full salary and perquisites, instead of the half salary they draw now, is a small price to pay for guaranteeing judicial independence. This would liberate, in fact prevent, retired apex court judges from doing any sort of private legal work.
A closely related reform would be to raise the retirement age for High Court judges to 65 so that the urge to please those higher up to get three extra years, if elevated to the apex court, becomes irrelevant. This reform will help to raise the standing of the High Courts so that they become the final court of appeal in all cases that do not involve important issues of constitutional principle or the interpretation of some core principle of jurisprudence.
The CAG system has stood the test of time much better. Its solidity owes a lot to the first three CAGs, V Narahari Rao, A K Chanda and A K Roy, all from the Indian Audit and Account Service, please note, and not the Indian Administrative Service, like most later holders of the post. Clearly, there was a desire then, in Nehru’s days, to look for the most knowledgeable and competent, rather than to go for some one intimate with and familiar to the politicians who appoint. Since the mid-sixties, many of the appointees have held sectoral charges and, if this goes on, it may backfire if the audit throws up some malfeasance in a Ministry that was once the responsibility of the incumbent CAG. Something like this happened in the case of the CVC Thomas who was telecom secretary when the 2G decisions were taken.
The appointment of the CVC requires consultation with the leader of the opposition, not because the government wanted it but because the Supreme Court insisted in an earlier judgement. The same should hold for the principal investigating agency, the CBI. Such consultation with the opposition is even more essential in the appointment of the CAG, which services the Public Accounts Committee, our principal Parliamentary watchdog institution, directly. The appointment of the Chief Information Commissioner and the Election Commissioners must also be on the basis of a depoliticised and transparent selection process and in consultation with the opposition.
In all of these cases one needs restrictions on post retirement employment that stops a retired incumbent from participating in activities that they once regulated. Surely, it is not right for a former election commissioner to become an active party politician as has happened recently.
If the independence of the guardians is ensured then one question that arises is who will guard them. In The Untouchables, the film about the famous group of feds who went after the Chicago hoods, someone asks Elliot Ness this precise question. His answer is “The people will”, which in our context means a vigilant media and civil society.
But the real need is the self-respect of the guardians themselves and the recognition that their behaviour reflects not just on them but also on the institution. The culture of these institutions must instill a sense of honour where probity and independence comes naturally because it reflects on what the soldier calls paltan ki izzat, the good name of the platoon.