The role of the Legislature and the Judiciary in probing Executive mismanagement

Kartikeya analyzes the various avenues available within our country’s institutional framework to probe scandals of far-reaching effect in the context of the 2G spectrum scam. He argues the necessity of a thorough legislative probe into all aspects of the scandal that can be the basis for immediate mandatory reforms in governance practices around the country in this awkward era of coalition dharma. Despite the political drama that gets shriller with each passing day, he examines the merit of an insightful and critical examination of the scandal by the Members of Parliament across the spectrum through Parliamentary Committees..The recent political impasse over the 2G spectrum scam and the Opposition’s insistence in having a Joint Parliamentary Committee (JPC) probe brings alive the political situation prevalent in the mid 1980s with the discovery of the Bofors scandal. The situation then was similar to the one we see in the fallout of the 2G scam – the Indian National Congress kept protracting a response or action to seriously investigate the scandal and the Opposition kept insisting on a JPC. The demand for a JPC probe was finally accepted, but, when presented before the Parliament, the Opposition complained that the constitution of the JPC was skewed in the favor of the ruling party causing a huge furore across the spectrum. This was followed by senior Congressmen defecting and an eventual victory to the Opposition. The reluctance on the part of Congress today to accede to a demand for JPC and aggressive rebuttals from the Government, of which Mr. Kapil Sibal, in charge of the Telecom Ministry after the resignation of Mr. A. Raja, is the eloquent representative, can perhaps be understood in the context of avoiding a repetition of 1989. The mudslinging and counter-accusations are fairly conspicuous. Though one might possibly be disconsolate with the political exchanges and the deadlock in Parliament, (that, as some news channels focus on, has caused a loss of tens of crores to the nation) it might be useful to view this confrontationist pattern in Indian politics as prompting, beneath its aggressive sensationalism, a need to understand the benefits of utilizing the opportunities a nation has in its legislative and judicial structures in probing mismanagement or corruption by the Executive. In that regard, attempts by political parties to maneuver how best they can utilize the institutional framework to further their interests (which may or may not have a useful larger motive) must not necessarily be seen as disproportionate or even unrighteous; in any case, that is a tangential exercise. One’s political allegiances or ideologies must not come in the way of an objective assessment of the respective stand taken by our nation’s representatives in the Parliament. Taking the context of the 2G spectrum scam, I endeavor to explain the purpose and scope of parliamentary committees in the backdrop of scathing political confrontation as well as the active role taken by the Judiciary in attempting to sustain a healthy and overall net positive balance in the idea of justice held by the nation. Throughout this article, I argue that whereas the collective focus of the nation is, in most cases, on criminal penalties and retribution against wrongdoers, it is equally important, if not more, to have a comprehensive probe on the systemic deficiencies, quality of leadership not just of the Prime Minister but also of ministers and bureaucrats as well as policy-framing procedures – all areas that may not necessarily result in criminal conviction. In other words, probing in detail how some members of the Executive allegedly managed such a scam is as important as convicting them in order to advance the demand for procedural reforms and transparency in governance..The Supreme Court’s “continuing mandamus”.As I have described in detail in a previous article, the Supreme Court of India has, in an act of remarkable judicial activism, created the concept of “continuing mandamus” on policing and investigative authorities in order to ensure that criminal investigation, particularly in high-profile cases, is done without intrusions from the Executive. To further this free and fair investigation, the Supreme Court monitors investigations performed by agencies like the Central Bureau of Investigation. In its order dated December 16, 2010 in Centre for Public Interest Litigation and Ors. v. Union of India and Ors., the Supreme Court ordered a continuing mandamus on the investigation by the CBI and the Enforcement Directorate into the 2G spectrum scam. The Court has ordered the CBI to investigate serious irregularities in the grant of licenses, blatant violation of terms and conditions of licenses, inaction on part of TRAI and Department of Telecommunication against those licensees who sold their stakes/equities for huge sums, grant of huge loans by the public sector and other banks to some of the companies which have succeeded in obtaining licenses in 2008 and whether the Department of Telecommunication’s officials were signatories to these loan agreements. The inherent objective of this court-ordered investigation is to find out convictable instances of criminal behavior, mostly corruption, and to punish the guilty. Indeed, the course of investigation may reveal systemic deficiencies or inefficient policy decisions or inaction at the top, but these revelations shall be assessed for the purposes of a criminal conviction to or violation of the law by wrongdoers. The collective focus, therefore, will be on “prosecutable evidence”. .Moreover, as I have pointed out in my earlier article, a surprising fact that in the same hearing, the Solicitor General represents the Executive and, specifically, the Department of Telecommunications whereas the Additional Solicitor General represents the CBI and the Enforcement Directorate, is a severe conflict of interest that displays some of the inherent problems with the legal representation and advancement of investigation by the CBI in a court of law. Indeed, it is very likely that the CBI’s investigation might be limited by how its counsel (often the law officers of the Executive) advises the agency on legal tenability of pursuing investigations. While the Supreme Court may (and it has lately) pass strictures against CBI for its shoddy investigations, the attitude of governments has been to ignore such strictures. One shall recollect, in a recently televised interview, Mr. Kapil Sibal passing these strictures off as ‘mere observations’ and not constituting the Court’s judgment. In this context, a wider legislative inquiry by a team consisting of Members of the Parliament of the Opposition who have more insight on the desired quality of governance and who can engage in open criticism might be instructive on many other aspects of this scam..The Legislature’s options – the different Committee probes.The significant (and strategic) political drama over the past couple of weeks has witnessed loud protests from different sides of the political spectrum indicating divergent preferences for delineating the scope of investigation with the Congress-led government preferring a Public Accounts Committee (“PAC”) probe as opposed to a Joint Parliamentary Committee (“JPC”) probe demanded by the Opposition at the cost of normal Parliament work. Before going into an assessment of these respective mediums of legislative inquiry, it is pertinent to understand the purpose of Committees, particularly since the act of setting up a Committee often evokes cynicism among the nation as a tactic to delay punishment. The need for Committees arises out of a need for vigilance on the part of the Legislature over the actions of the Executive that cannot be debated and enquired at length during normal discourse in the Parliament. These Committees are not meant to weaken the administration; rather they prevent misuse of power exercisable by the Executive by highlighting mismanagement and abuses through its Reports that are discussed in the Parliament. Parliamentary control in the context of the functioning of the Committees has, as per the description on our Parliament website, “influence, not direct control; advice, not command; criticism, not obstruction; scrutiny, not initiative; and accountability, not prior approval”..The main realm of the PAC probe is to ascertain whether the money granted by Parliament has been spent by Government within the scope of the Demand. The Appropriation Accounts of the Government of India and the Audit Reports presented by the Comptroller and Auditor General mainly form the basis for the examination of the PAC. The Comptroller and Auditor General is the “friend, philosopher and guide” of the PAC. It is the duty of the PAC to satisfy itself:.(a) that the money shown in the accounts as having been disbursed were legally available for and applicable to the service or purpose to which they have been applied or charged;.(b) that the expenditure conforms to the authority which governs it; and.(c) that every re-appropriation has been made in accordance with the provisions made in this behalf under rules framed by competent authority.The Committee, constituted every year, examines cases involving losses, nugatory expenditure and financial irregularities. As is self-explanatory, the Committee is not concerned with questions of policy and its scope can be said to be broadly limited to what the CAG has concluded. If the PAC wants to question a minister or the Prime Minister on any issue pertaining to its investigation, it has to get an approval from the speaker before doing so. Notably, the JPC’s authority to do so would depend on the terms of the motion that the Parliament decides. Therefore, though the Prime Minister has agreed to appear before the PAC quoting the slogan that Ceasar’s wife must be above suspicion, the Leader of Opposition in the Rajya Sabha, Arun Jaitley, responded stating that ‘Ceasar’s wife did not choose her form of inquiry’. While one often tends to express preference for a Supreme Court monitored investigation as free and fair and without overbearing political motives (which it certainly is), it is useful to point out here that legislative inquiries reflect upon many other aspects of a scam and is, in that sense, supplementary to the Supreme Court’s jurisdiction. I add here a caveat that in line with its remarkable judicial activism, the affidavits filed by the Centre for Public Interest Litigation indicate that the Supreme Court will look upon matters very similar to those the PAC is authorized to look into, which takes me to the importance of a JPC. .The JPC is mandated to inquire into a specific subject described in a motion adopted by one House and concurred by the other or through communication between the presiding officers of the two Houses. The terms of reference and scope of inquiry, thus, depend on the motion adopted and are not limited to the scrutiny of government finances as in the case of a PAC. A JPC can obtain evidence of experts, public bodies, associations, individuals or interested parties suo motu or on requests made by them. If a witness fails to appear before a JPC in response to summons, his conduct constitutes contempt of the House. The proceedings of parliamentary committees are confidential, but in the case of the joint committee which investigated the Harshad Mehta scam, the committee decided that considering the widespread public interest in the matter, the chairman should inform the media on a regular basis about deliberations of the committees. If a JPC has to be constituted to investigate the 2G spectrum scam, it must release regular reports about the deliberations of the probe similar to the practice agreed upon in the Harshad Mehta scam probe. Unlike the Supreme Court monitored investigation the substantive progress of which is not likely to be announced to the press due to the requirements of a fair trial to the accused, the JPC can be a strategic tool for the political class not in power to inform the nation on wider aspects of the probe. It is, in some ways, a more instant regularly updating probe which, I argue, is needed to provide the nation some confidence in midst of profound cynicism..Indeed, the JPC can, as stated above, only “advice, not command” and in the past, a few JPC reports have been ignored by the government of the day, Bofors scandal report being an example. So, if a JPC report recommends prosecution or a change in government policies or holds the Prime Minister accountable for alleged inaction or suggests retrospective cancellation of the 2G licenses, the government can disagree with the JPC and refuse to take such action even though it has to report to parliament on the follow-up action on the JPC recommendations. Whether or not these Committee reports are effective on a historical assessment of past JPCs, the reasons for a defeatist cynical approach towards such probes are significantly diluted due to an alert media and increased global attention on India. The details of the report are bound to be more closely scrutinized. There are expectations out of every powerful country and the squeamishness increases with each step India takes into an increased global prominence. This raises realistic hope that our country’s leaders will be more serious in reforming systems. In that sense, political confrontations, despite their ostensible focus on scoring points, are necessary challenges to those in power for any instance of irregularity or corruption. The fact that the Opposition might be salivating at the prospect of embarrassing the Government through a detailed probe and the ruling party is fielding its most vocal candidates to expand the scope of irregularities to the Opposition when the latter was in power should not restrict our focus to these sensationalizing battles. It is in the nature of things in a democracy that political representatives have, somewhere in the back of their mind, the object of winning an election or sustaining one’s victory which involves a defeat to the other. Despite sensational political cross-exchanges, the participants of these verbal battles are, in my view, best placed to make the government accountable and highlight varied aspects of a scam of this nature for concrete action either through the Executive itself or through the Judiciary. The JPC’s findings can provide the Parliament a detailed account to fiercely debate, the Executive a well investigated report to tighten deficient systems that have left open the possibility of fraud and for the nation to chew upon important aspects of our nation’s governance and leadership. It is necessary to prevent the possibility of separate government departments creating fiefdoms of their own in this awkward era of coalition politics particularly when one hears about the abrasive response from the Department of Telecommunication to objections from the Ministry of Finance and the Prime Minister in this 2G spectrum scam..Conclusion.My strong view, therefore, is that a scam of this nature and outreach requires an immediate and detailed legislative probe even if it requires questioning of the Prime Minister. The oft-repeated attribute to our Prime Minister as a man of highest integrity and honesty does not automatically imply excellence in the level of leadership a rising power needs at the highest echelon of the Executive. By probing each and every step of the 2G spectrum scam without the limitations of procedural rules, the JPC can assess those steps through the prism of effective governance and can be a useful tool in the evolution of governance practices in the country. One will, indeed, argue about the futility of the committee probes since the increase in the scale of corruption has coincided with each JPC. There is a vociferous aversion to committees that have anything to do with politicians. I would argue that, despite the seemingly futile outcome of such probes, they are vital in order to highlight even the most innocuous errors of judgment in order to bring them to the nation’s focus. The media must focus on these crucial aspects of the report and recognize the need of a reasoned discussion and persistence in holding the government accountable. Moreover, as we enter a new decade, we have a boisterous information supply and exchange going on over the internet, particularly widely read blogs and social networking sites such as Twitter. Dissemination of information is no longer limited to mainstream media (who one might still accuse of being subversive). The constant tendency to immediately relate to events in the late 90s or even early years of the 21st century to conclude the futility of probes misses a crucial point – the rapid evolution of technology and a certain increase in awareness in the nation apart from a hawk-eye focus of the world on us. The sheer power of awareness that 21st century mediums can provide to us as a nation must not be underestimated..The oft-repeated decry of what ‘one man can do’ has been rendered redundant not just with the power of the internet, but with tools like a three decade old mechanism of a public interest litigation and the recent empowerment of the nation through the Right to Information Act. This isn’t to say there are no thorns in availing these mediums of activism. Though there are some issues in the practical application of the PIL and the RTI regime, there is an overwhelmingly positive force that these two tools as well as the internet have generated. Despite convincing possibilities of institutional changes and an increase in the mediums of empowerment, however, there is another aspect that is more worrying – the apathy of our huge middle class whose voices are heard globally and can make a difference. If the nation’s urban middle class are not keen to protest against allegedly corrupt practices of companies and business groups because the nexus of these corporate giants with the Executive enhances the value of the share prices held by a huge number of the middle class empowering them financially, then powerful transparency tools become severely limited in their efficacy. A subconscious need is often felt to not disrupt the enriching status quo. It is worth reflecting upon the fact that our rising personal finances, either directly through the stocks we hold or indirectly through the contribution of these corporate giants to the overall growth, owe a lot to the corrupt corporate – neta nexus. Add cynicism and apathy to this self-induced recusal by the potentially active segment of our country from protesting and what we have is activism skewed to a few quarters of the country. This imbalance in activism and awareness provides a significant incentive to the dangerous nexuses that continue to thrive in New Delhi..Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.