Out of ruling party domain
Bharat Jhunjhunwala suggests appointment process revamp to curb govt corruption
FOR ALL the public outrage over widespread corruption within the government, at the root of it lies the procedure of appointment of constitutional officials who have the responsibility of controlling corruption within the government. That corrupt individuals get elected is nothing new. Hitler and Sukarno were elected by the people. The voter, it seems, does not have the confidence that electing honest persons will actually usher in good governance. We can only brace ourselves to live with corrupt politicians. But the role of constitutional officials such as the President of India, Chief Justice of India (CJI), Chief Election Commissioner (CEC), Central Vigilance Commissioner (CVC) and Comptroller and Auditor General of India (CAG) becomes increasingly important in such a situation. These officials have powers enough to control corruption within the government but, often, they do not use the powers effectively. Instead they use their powers for personal gains in connivance with the government. This leads to the government becoming free of checks and corruption becomes widespread. Control of corruption requires that these officials do their work seriously and not be afraid of taking action against corrupt politicians.
But that’s easier said than done. At least going by the records. Chief Justice Chandrachud had given a ruling supporting the Emergency, which, if I recall correctly, he later regretted. In 2010, former law minister Shanti Bhushan in a plea to the Supreme Court accused eight former chief justices of being ‘corrupt’. Recently, PJ Thomas had to resign from the post of CVC due to pendency of a corruption case against him. These officials, who had the responsibility of controlling corruption, have become corrupt themselves and the problem is rooted in their appointment. The ruling party appoints them. The CJI is appointed by the President on the advice of the Prime Minister. Traditionally it is the senior-most judge who is appointed, but there have been exceptions. Indira Gandhi had superseded three senior-most judges to appoint one of her choice. The prime minister an recommend appointment of a corrupt judge as CJI.
The President is elected by the MPs and MLAs belonging to all political parties, but again the person selected has almost always been at the whims of the party in power and the Opposition is mostly rendered irrelevant. The results have not been very encouraging. The CEC and the CAG are also appointed by the President on the advice of the PM. Unlike the CJI, however, there is no tradition of appointing the senior-most person here. The PM can recommend the name of any person whom he thinks is suitable for the post. The procedure of appointing the CVC is a bit different. A collegium of the PM, the home minister and the Leader of Opposition in the Lok Sabha recommends a name to the President. PJ Thomas was recommended for appointment by this collegium. But Sushma Swaraj, leader of the Opposition, says that the collegium wasn’t told that a corruption case was pending against him. She nevertheless gave her dissent for his appointment. The dissent went unheeded, but Thomas had to resign when the matter reached the Supreme Court. This indicates that participation of the opposition in the process of appointment does not make much difference.
This is unlike developed countries where the opposition is generally kept in the loop in such appointments. In the US, the President appoints the six ECs to the Federal Election Commission which are confirmed by the Senate. In the UK, the 10 ECs are directly accountable to the Parliament. A Parliamentary Parties Panel comprising representatives of all political parties keeps a check on the activities of the Election Commission. The Australian Election Commission is headed by a serving or retired judge of the Federal Court. The Commission is placed under the jurisdiction of the government headed by a special minister of state. Elections in Canada are done by passing a resolution in the House of Commons wherein all the political parties participate in the process. This participation of the opposition in appointments seems to have delivered better governance in these countries.
However, there is a crucial difference. Incomes of these countries are much higher and ability of those people to bear the consequences of corruption is greater. The daily life of the people is not much affected by corruption. There is also a question of tradition. India appears to be more individual-centric in comparison to the West, which is more institution-centric. Therefore, participation of opposition in the appointment process does not deliver the same benefits as seen in the case of CVC Thomas. For this reason, the demand made by BJP leader LK Advani to appoint CAG and CEC through a collegium on the lines of CVC is not likely to be very effective though it would be a step forward.
THERE IS limited chance of improvement till appointments are primarily in the domain of the ruling party. There is a need to explore alternative modes of appointing these officials. The President can be elected by universal suffrage by all voters of the country as is the practice in France. Then the political parties will not have a direct power to appoint a person of their choice. They will have to take the people into confidence. The President will draw his authority from the people, not from the party in power, and will have the moral authority to say no to the requests made by the government. It is difficult for a President to control corruption of a party, which has appointed him/her to the office.
The CJI can be appointed by a collegium comprising heads of all State Bar Councils. CAG can be appointed by a collegium consisting of heads of State Chapters of Institute of Chartered Accountants of India and the Chambers of Commerce. CVC can be appointed by a collegium consisting of the four Shankaracharyas and heads of Christian, Jain, Muslim and Sikh denominations. Other alternative compositions of these collegiums can be thought of. The gist of all this: Appointments to constitutional offices, which have the responsibility to control corruption in the government should not be done, even indirectly, by the same government which they are expected to control.
Indeed, some of these alternative procedures too will fall prey to political maneuvering. However, multiplicity of these collegiums will make it difficult for the party in power to manipulate the system, because the composition of the collegium will be rooted in entirely different social paradigms. Multiple checks on the government rooted beyond its control alone will deliver.
Bharat Jhunjhunwala is a former economics professor at IIM Bengaluru. The opinions expressed are his own.