CAG-FROM FRONTLINE

  Reckless activism


A.G. NOORANI


Comptroller and Auditor General Vinod Rai in his address to recruits
at the National Police Academy sought to enlist them in his campaign.





G. KRISHNASWAMY

Vinod Rai, Comptroller and Auditor General, delivering the 26th Sardar
Vallabhbhai Patel Memorial Lecture at the National Police Academy,
Hyderabad, on October 11.

BAGEHOT'S classic explains why and how a genre of civil servants
mushroomed in India latterly as executive power, authority and
prestige declined. None of them had earlier revealed a particularly
strong spine. T.N. Seshan bared his traits once he was appointed Chief
Election Commissioner (CEC). Others need not be mentioned save one.
N.K. Singh had his moment of fame during the Bharatiya Janata Party
regime when the BBC repeatedly had him say of its predecessor that it
had a “foreign policy [that] was out of sync”.

The situation today is far worse. Parliament is held hostage seemingly
to L.K. Advani's ambition to become Prime Minister. It is not allowed
to function. The political divide does not make for a non-partisan
approach to institutions when men who run it behave badly. This clime
fostered “judicial outbursts” and judicial excess. Civil servants took
their cue. One of the worst in this line is Vinod Rai, Comptroller and
Auditor General of India. His address to young police officers at the
Sardar Vallabhbhai Patel National Police Academy in Hyderabad on
October 11 richly qualifies as a misdemeanour that renders his
continuance in office untenable ( The Hindu, October 13).

Yet, continue he will, assuredly. Our permissive atmosphere ensures
that. To appreciate the enormity of his misdemeanour one must consider
the place of the office of CAG in our scheme of things. Significantly,
Chapter V of the Constitution, on the CAG, comes immediately after
Chapter IV on the Union Judiciary. Article 148(1) establishes the
office and provides that “he shall only be removed from office in like
manner and on the like grounds as a judge of the Supreme Court”. The
Comptroller & Auditor General's (Duties, Power and Conditions of
Service) Act, 1971, supplements Article 148(1).

The proviso to Article 324(5) imposes an identical condition on the
removal of the CEC. However, the CAG is advisedly subjected to a bar
by the Constitution, which it did not impose either on judges of the
Supreme Court or on the CEC. Article 148(4) lays down that “the
Comptroller and Auditor General shall not be eligible for further
office either under the Government of India or under the government of
any State after he has ceased to hold his office”. It is not difficult
to appreciate the raison d'etre of this bar.

Of course, it is open to him to carve out a career in politics after
retirement, as T.N. Chaturvedi did. He joined the BJP, which accepted
him with open arms and made him Governor of Karnataka.

When Article 148 was debated in the Constituent Assembly on May 30,
1949, the Chairman of its Drafting Committee, Dr B.R. Ambedkar, said:
“I am of opinion that this dignitary or officer is probably the most
important officer in the Constitution of India…. His duties, I submit,
are far more important than the duties even of the judiciary…. I
personally feel that he ought to have far greater independence than
the judiciary itself” ( Constituent Assembly Debates, Volume 8, pages
407-8).

Hence the additional curb on his freedom after retirement. Ought he
not be subject to the same restraints while in office, if not, indeed,
greater?

Ask yourself a simple question: Would a judge of the Supreme Court
have escaped censure if he had spoken in the language Vinod Rai
deployed? The norms that bind the judges surely apply a fortiori to
the CAG. A judge who flagrantly flouts them in a speech on a public
platform, on an issue related to one which he has pronounced or is
about to pronounce on the Bench as a judge, inescapably incurs doubts
on his impartiality and integrity. The CAG is not immune to this; the
greater the transgression, the graver the doubt.

The norms are clear and well settled. “Judges are by reason of their
office and nature of work expected not to get involved in
controversial matters or to concern themselves with political issues
or policies undertaken by political parties as a part of their
political programme,” the Supreme Court said on August 19, 1976, while
rejecting charges of contempt of court against 15 lawyers who had
criticised a High Court judge for controversial statements outside the
court.

The basic principle was well stated by the Law Commission in 1958 in
its 14th report: “A judge has to maintain an aloofness amounting to
self-imposed isolation…. It has to be realised that if the public is
to believe that justice is being impartially administered, judges
cannot rub shoulders with one and all in a manner which any other
person may do. Their public activities and even their pronouncements
outside the court have to be consistent with the isolation which their
office demands.”

When, in October 1968, Chief Justice of India M. Hidayatullah
criticised Nath Pai's Bill, he was strongly criticised by the doyen of
the Bar, M.C. Setalvad. “These observations clearly involved a lack of
propriety… there was also a want of judicial decorum…. It was said
that the observations were justified inasmuch as the Chief Justice
made them in his capacity as a citizen. That view is unsound. A
citizen assuming judicial office necessarily agrees to impose certain
restraints upon himself. One of these is complete isolation from all
controversial matters particularly those likely to form the subject of
legal proceedings before him.” This applies to the CAG also.

The familiar plea of “spoke in a personal capacity” is puerile. It is
reminiscent of the defence of the President of the Temperance Society
when he was found drunk in a public place. He was drunk in a purely
“personal capacity”, he argued.

Instructive Canadian case

A Canadian case is most instructive. In August 1983, Justice Thomas
Berger resigned from the Supreme Court of British Columbia. He was a
man of considerable learning and of deep sympathy for the
underprivileged. He resigned because the Canadian Judicial Council,
consisting of the country's 27 senior judges, ruled that “it was an
indiscretion on the part of Mr Justice Berger to express his views as
to matters of a political nature, when such matters were in
controversy”. The council stopped at a reprimand for it felt that the
indiscretion provided “no basis for a recommendation that he be
removed from office”. This was an endorsement of the report of its
committee of investigation.

The complaint against Justice Berger was made by Justice George Addy
of the Federal Court of Canada. On November 18, 1981, he wrote to the
Chief Justice of Canada, Justice Bora Laskin, Chairman of the Canadian
Judicial Commission, enclosing a clipping from Ottawa Citizen of
November 10 reporting a speech by Justice Berger. He had characterised
as “mean spirited and unbelievable” the compromise arrived at by the
provincial premiers on the Charter of Rights because, in his view, it
did not protect minority rights, especially those of the natives, the
“poor and powerless”. He was touring to promote the sale of his book
Fragile Freedoms: Human Rights and Dissent in Canada, a severely
critical survey of “the actions that governments at all levels have
taken against minorities”. The speech, Justice Addy complained,
violated “the bounds of propriety”.

The next day, Justice Addy lodged another complaint, enclosing a page
of The Globe and Mail of November 18 containing an article written by
Justice Berger on the same subject. Either he had “not the faintest
idea of the position and role of a judge” or, if he had, Justice Addy
angrily remarked, “then he is guilty of misconduct which, in my view
at least, would tend to cause far greater harm to the administration
of justice than sleeping with a prostitute or driving whilst
impaired”. It was purely a question of judicial behaviour for, Justice
Addy conceded, “the views expressed therein are quite logical and
acceptable and are also very relevant to the serious political
problems currently facing our country”.




JUSTICE THOMAS BERGER. He resigned because the Canadian Judicial
Council ruled that "it was an indiscretion on the part of Mr Justice
Berger to express his views as to matters of a political nature, when
such matters were in controversy".

The Canadian Judicial Council, set up under the Judges Act, was
activated. Justice Berger wrote to Chief Justice Laskin on December 3,
1981, justifying his conduct in terms which have a familiar ring.
“What I have done may be unconventional. But it was not a venture into
politics in any ordinary sense. It is not as if I had discussed the
ordinary stuff of political debate – inflation, interest rates, the
budget, or the nationalisation of the Asbestos Corporation. The issues
which I discussed transcended partisan politics.”

This exceptional feature apart, the rest of the reply squarely raised
the issue of a judge's right to speak in public. “I believe it is a
mistake to think it is possible to place fences around a judge's
conscience. These are matters that no tidy scheme of rules and
regulations can encompass, for all judges are not cast from the same
mould. These are matters that individual judges must decide for
themselves.”

Justice Berger cited precedents of public pronouncements by judges,
including his own. The council, however, proceeded with the complaint,
whereupon Justice Berger wrote again to its Chairman, Chief Justice
Laskin, on March 2, 1982, in his defence. “I do not dispute that, in a
given case, a judge's public statements may constitute grounds for his
removal from office.” If the council considered that the appropriate
course, it could say so.

In any case “there can be no difficulty in establishing the facts in
my case”. They were not in dispute. An inquiry was unnecessary and he
would not participate in it. But he circulated an elaborate
memorandum, dated March 15, 1982, to his colleagues, in which he asked
defiantly: “If a judge were to say in public that he was opposed to
the imposition of martial law in Poland, notwithstanding that the
Government of Canada apparently takes a different view, would this be
misconduct? Would such activities bring the judiciary into disrepute?
I doubt it.”

Unconvinced, the Judicial Council resolved on March 8, 1982, to set up
a committee of investigation consisting of three Justices. It received
a most erudite memorandum from Chief Justice McEachern of British
Columbia in defence of his colleague.

The report of the committee of investigation carefully considered all
the issues that were raised. Its findings rest on both precedent and
principle. “The principle that emerges from legal history is that the
political and judicial spheres of action must remain clearly separate
and apart if the fundamental premise of parliamentary democracy is not
to be violated.”

It analysed dicta on judicial norms and pointed out that the restraint
must be mutual. “The history of the long struggle for separation of
powers and the independence of the judiciary not only establishes that
the judges must be free from political interferences, but that
politicians must be free from judicial intermeddling in political
activities. This carries with it the important and necessary
concomitant result – public confidence in the impartiality of judges –
both in fact and in appearance.”

Applying the principle to the facts of Justice Berger's case, the
report emphasised that what was in issue was his “use of his office as
a platform from which to express those views publicly on a matter of
great political sensitivity”.

‘Curb crusading zeal or resign'

To judges who are unable to curb their crusading zeal, the report
offers this sage counsel – resign. For, “Not only must judges be
impartial, the appearance of impartiality… must be maintained for the
fair and proper administration of justice. If a judge feels compelled
by his conscience to enter the political arena, he has, of course, the
option of removing himself from office. By doing so, he is no longer
in a position to abuse that office by using it as a political
platform.”

The report refuted those facile and facetious pleas so completely that
it bears quotation in extenso:

“A judge's conscience is not an acceptable excuse for contravening a
fundamental rule so important to the existence of a parliamentary
democracy and judicial independence. To say that not all judges are
cast in the same mould, as does Justice Berger, is only to state the
obvious. On every great matter of political concern it would be
probable that judges would hold opposing views privately and, if
Justice Berger's view is acceptable, it would be possible to have
judges speaking out in conflict, one with the other, because they hold
those opposing views from a sense of deep conviction.

“We say again if a judge becomes so moved by conscience to speak out
on a matter of great importance on which there are opposing and
conflicting political views, then he should not speak with the
trappings and from the platform of a judge but rather resign and enter
the arena where he, and not the judiciary, becomes not only the
exponent of those views but also the target of those who oppose them.
This is not a question, as Mr Justice Berger suggests, which each
judge must decide for himself. That question has been answered for him
from the moment he accepts the Queen's patent as a judge.”

The committee upheld the complaint but did not recommend Justice
Berger's removal from office. The Judicial Council concurred. The
judge resigned all the same.

Every line in that dicta applies to Vinod Rai. Indeed, even more so.
For, the text of his speech shows that his was not an academic
pronouncement. He spoke as an activist. He wanted to enlist the police
officers in his campaign. This is what he said at the very outset: “I
wish to make three propositions today and seek your reactions on
whether you agree and whether you are in a position to be a
participant [sic.] in ensuring that the All India Services regain
their past glory. “First: That governance is at its lowest ebb. That
the morale of the civil servants is low. That credibility of the
government is at its lowest. That decision-making has become a
casualty. Second: That this situation is deleterious for the nation.
That too much is at stake for too many in such a situation. Third: On
you and officers of the All India services, among others, rests the
onus to remedy the situation.” (Emphasis added, throughout.)

It is not his place to speak on “governance” or on “the credibility of
the government”. That crass impropriety apart, the speech reveals the
insolence and ignorance that come very naturally to civil servants of
a certain type. “On you [police officers] and officers of the All
India Services, among others, rests the onus to remedy the situation.”
That “onus” rests mainly on the people of our country, as Jayaprakash
Narayan emphasised. No country was ever saved by its judiciary or its
civil service alone.

Read this: “The public demand for shift of power from bureaucrats to
citizens has led to change of governance structures. In fact, there
are even demands for sharing of the legislative functions by moving
from a representative raj to direct people's raj. All these demands
stem from an increased awareness of the citizen to participate in
decisions relating to governance, development and welfare entitlements
through decentralised governance structures.” Ergo, power belonged to
“bureaucrats” and not to elected Ministers. “The public demand” was to
shift the power “from bureaucrats to citizens”.

These are the kinds of remarks that a person inebriated with power
would make. They also cast doubt on his work as CAG though each report
must be considered closely on its merits. Vinod Rai is by no means “a
man to watch”, as the phrase goes. It will, however, be interesting to
watch the trajectory of his career after he demits the office he has
undermined so recklessly.