A weak ‘Executive’?
A senior civil servant the other day came out with a blasting statement, and that needs very serious attention in all its seriousness, that in the development process there are five ‘C’s which hinder smooth development. The five ‘Cs’ are: Comptroller and Auditor General of India (CAG, Central Bureau of India (CBI), Central Vigilance Commission (CVC), Central Information Commission (CIC), and the Courts.
(This is reported in the Times of India, Pune, dated 6th April 2016 on its very first page).
These are the five entities which are considered to be detrimental to the development process since these very five ‘C’s have become responsible for slowing or disturbing factors in the decision making process of the ‘Executive’ i.e. the Government in power.
This contention needs an elaborate analysis. There is a crisis of identity in India. Moreover, the tragedy of parliamentary democracy in India is that the political institutions are subjected to harmful twists and pressures. Hypocrisy at every echelon, complete mutual distrust and disrespect , disregard for society and social harmony, disregard for intellectual and rational approaches and arrogance of every sort in personal and public life are the characteristics of the Indian citizen.
The unsatisfactory growth on the part of the individual has also cast its shadow on the national prestige and image in the international theater.
It is disgusting to experience the ‘waste-of-time’ debates and atheistic movements (in the name of modern rational approach), organized by the anti-social leaders corroding the development pace leaving the ordinary poor needy citizens betrayed. The approach with which I am essaying these views as at present is in no way anti-liberal, anti-democratic or anti-social. All that is swung forward is a point of view painting a sorry picture of the infant British Indian Macaulay polity introduced lately in an ancient rich society.
The entities: Fact-file:
Let us at the outset refer to the statutory role and functions of the above entities.
Audit of government accounts (including the accounts of the state governments) in India is entrusted to the CAG of India who is empowered to audit all expenditure from the Consolidated Fund of the union or state governments, whether incurred within India or outside, all revenue into the Consolidated Funds and all transactions relating to the Public Accounts and the Contingency Funds of the Union and the states. Specifically, audits include:
Transactions relating to debt, deposits, remittances, Trading, and manufacturing
Profit and loss accounts and balance sheets kept under the order of the President or Governors
Receipts and stock accounts.CAG also audits the books of accounts of the government companies as per Companies Act.
In addition, the CAG also executes performance and compliance audits of various functions and departments of the government. Recently, the CAG as a part of thematic review on "Introduction of New Trains" is deputing an auditors' team on selected trains, originating and terminating at Selah and Howrah stations, to assess the necessity of their introduction.  In a path-breaking judgment, the Supreme Court of India ruled that the CAG General could audit private firms in revenue-share deals with government.
The DSPE's scope was enlarged to cover all departments of the Government of India. Its jurisdiction extended to the Union Territories, and could be further extended to the states with the consent of the state governments involved. Sardar Patel, first Deputy Prime Minister of free India and head of the Home Department, desired to weed out corruption in erstwhile princely states such as Jodhpur, Rewa and Tonk. Patel directed Legal Advisor Karam Chand Jain to monitor criminal proceedings against the dewans and chief ministers of those states.
The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated 1.4.1963. No. 4/31/61-T
GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963
R E S O L U T I O N:
The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes, participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals, the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular interest to the Government of India or crimes having all India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime.
As a first step in that direction, the Government Of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely :-
(I) INVESTIGATION AND ANTI-CORRUPTION DIVISION (DELHI SPECIAL POLICE ESTABLISHMENT).
(II) TECHNICAL DIVISION.
(III) CRIME RECORDS AND STATISTICS DIVISION.
(IV) RESEARCH DIVISION.
(V) LEGAL DIVISION & GENERAL DIVISION.
(VI) ADMINISTRATION DIVISION.
The Charter of function of the above said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases.
Sd/- (V. VISHWANATHAN)
Secretary to the Government of India
The CBI is headed by a Director, an IPS officer with a rank of Director General of Police. The director is selected based on the CVC Act 2003, and has a two-year term. Other ranks in the CBI which may be staffed by the IRS and the IPS are Special Director, Additional Director, Joint Director, and Deputy Inspector General of Police, Senior Superintendent of Police, Superintendent of Police, Additional Superintendent of Police, and Deputy Superintendent of Police. Inspector, Sub-Inspector, Assistant Sub-Inspector, Head constable, Constable which is recruited through SSC or through deputation from Police and Income Tax Department.
The CBI is subject to three ministries of the Government of India and Two Constitutional bodies: -
1. Ministry of Home Affairs: Cadre Clearance
2. DoPT: Administration, Budget and Induction of non IPS officers
3. Union Public Service Commission: Officers of and above the rank of Deputy SP
4. Law and Justice Ministry: Public prosecutors
5. Central Vigilance Commission: Anti-corruption cases.
The legal powers of investigation of the CBI are derived from the DSPE Act 1946, which confers powers, duties, privileges and liabilities on the Delhi Special Police Establishment (CBI) and officers of the Union Territories. The central government may extend to any area (except Union Territories) the powers and jurisdiction of the CBI for investigation, subject to the consent of the government of the concerned state. Members of the CBI at or above the rank of sub-inspector may be considered officers in charge of police stations. Under the act, the CBI can investigate only with notification by the central government.
CBI and the States:
Maintaining law and order is a state responsibility as "police" is a State subject, and the jurisdiction to investigate crime lies with the state police exclusively. The CBI being a Union subject may investigate:
Offences against central-government employees, or concerning affairs of the central government and employees of central public-sector undertakings and public-sector banks
Cases involving the financial interests of the central government
Breaches of central laws enforceable by the Government of India
Major fraud or embezzlement; multi-state organised crime
Multi-agency or international cases
The High Courts and the Supreme Court have the jurisdiction to order a CBI investigation into an offence alleged to have been committed in a state without the state's consent, according to a five-judge constitutional bench of the Supreme Court (in Civil Appeals 6249 and 6250 of 2001) on 17 Feb 2010. The bench ruled:
Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular,
It was set up by the Government of India in February, 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam Committee, to advise and guide Central Government agencies in the field of vigilance. Nittoor Srinivasa Rau, was selected as the first Chief Vigilance Commissioner of India.
The Annual Report of the CVC not only gives the details of the work done by it but also brings out the system failures which lead to corruption in various Departments/Organisations, system improvements; various preventive measures and cases in which the Commission's advises were ignored etc.
The Commission shall consist of: A Central Vigilance Commissioner – Chairperson and not more than two Vigilance Commissioners - Members;
Role of the CVC
The CVC is not an investigating agency.
The only investigation carried out by the CVC is that of examining Civil Works of the Government which is done through the Chief Technical Officer.
Corruption investigations against government officials can proceed only after the government permits them. The CVC publishes a list of cases where permissions are pending, some of which may be more than a year old.
The Ordinance of 1998 conferred statutory status to the CVC and the powers to exercise superintendence over functioning of the Delhi Special Police Establishment, and also to review the progress of the investigations pertaining to alleged offences under the Prevention of Corruption Act, 1988 conducted by them. In 1998 the Government introduced the CVC Bill in the Lok Sabha in order to replace the Ordinance, though it was not successful. The Bill was re-introduced in 1999 and remained with the Parliament till September 2003, when it became an Act after being duly passed in both the Houses of Parliament. The CVC has also been publishing a list of corrupt government officials against which it has recommended punitive action.
CVC is only an advisory body. Central Government Departments are free to either accept or reject CVC's advice in corruption cases.
CVC does not have adequate resources compared with number of complaints that it receives. It is a very small set up with sanctioned staff strength of 299.  Whereas, it is supposed to check corruption in more than 1500 central government departments and ministries.
CVC cannot direct CBI to initiate inquiries against any officer of the level of Joint Secretary and above on its own. Such permission has to be obtained from the concerned department.
CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary cases.
CVC has supervisory powers over CBI. However, CVC does not have the power to call for any file from CBI or to direct CBI to investigate any case in a particular manner. CBI is under administrative control of Department of Personnel and Training (DoPT). Which means that, the powers to appoint, transfer, suspend CBI officers lie with DoPT?
Appointments to CVC are indirectly under the control of Govt of India, though the leader of the Opposition (in Lok Sabha) is a member of the Committee to select CVC and VCs. But the Committee considers candidates put up before it. These candidates are decided by the Government.
As a result, although CVC is relatively independent in its functioning, it has neither resources nor powers to inquire and take action on complaints of corruption that may act as an effective deterrence against corruption.
Any aggrieved person who has been refused access to any information requested under this Act further, who has not been given a response to a request for information or access to information within the time limit specified under this Act, moreover who has been required to pay an amount of fee which he or she considers unreasonable and who believes that he or she has been given incomplete, misleading or false information under this Act has the right to approach the CIC for further directions.
All the above mentioned entities have been assigned important constitutional or legal role to play while discharging their respective duties. It is interesting to note that these agencies have come into being to safeguard the fundamental rights and legal interests of the citizens. These agencies are saviors. It is also important to note that these agencies are manned by civil servants who can, if determined, remain independent and can become the toys in the hands of the political executives. It is equally true that these agencies and its personnel too are possessed by organizational rivalries (ref. Herbert Simon) and inferiority or superiority complexes in the competitive services. Every senior civil servant is conscious of the political consequences while he would decide a politically sensitive case. Moreover, every civil servant has his own personal preferences as well as likes and dislikes too. Are these tendencies deployed as devices or instruments to further their vested interests? It is important to note that the organizational behavior of these ‘watchdog ‘ agencies perhaps under the pressures of a populist outlook , fall prey to the temptation of arriving at twisted decisions and complicate the matters. Deliberately or inadvertently, a hostile atmosphere is created leading to a belligerent company of Agencies. Decision making in such an environment becomes difficult and risky. It is interesting to note that this is a conducive atmosphere for the political executives to enter the fray and vitiate the process. (These observations, of course, require serious University research studies in public administration.).
Senior civil servants in the Government machinery and senior civil servants in the ‘C’s Agencies are required to make at times politically sensitive decisions which are likely to impact development process. Political executives from the treasury benches and their opposition elements mark the time for offensives through various courses including the judicial onto servetheirpolitical ‘masters’.
The senior civil servant whoblastedthe system aims at this and has posed a question mark. There is of course no readymade answer to such a question. Is it not a question of our society? Is it not a question of the disciplined and law-abiding ‘individual citizen’? Is it not a question of understanding that public administration vis-à-vis democratic administration is based on rule of law? Is it not a question of defining democracy and public administration? Is it not an exaggeration of the principles of democracy? Itisalsoa question of social equilibrium and excessive politicization of every issue covering the concept of individual liberty and welfare. It is also weakening the ‘Executive’ and undermining its authority, role and its very ‘status’. There is something faulty in the process of parliamentary democracy. Where does the fault lie?
Let us therefore scan the scams and explore the problems
CAG unfolded the following irregularities which eventually were unearthed as big scams:
2G Spectrum allocations:
A CAG report on issue of Licenses and Allocation of 2G Spectrum resulted in a huge controversy. The report estimated that there was a presumptive loss of ₹1766 billion(US$26 billion) by the United Progressive Alliance, UPA government In a charge sheet filed on 2 April 2011 by the investigating agency Central Bureau of Investigation (CBI), the agency pegged the loss at ₹310 billion (US$4.6 billion)
All the speculations of profit, loss and no-loss were put to rest on 2 February 2012 when the Supreme Court of India on a public interest litigation (PIL) declared allotment of spectrum as "unconstitutional and arbitrary" and quashed all the 122 licenses issued in 2008 during tenure of A. Raja (then minister for communications & IT in the United Progressive Alliance, UPA government) the main accused. The court further said that A. Raja "wanted to favour some companies at the cost of the public exchequer" and "virtually gifted away important national asset". 
Revenue loss calculation was further established on 3 August 2012 when according to the directions of the Supreme Court, Govt of India revised the reserve price for 2G spectrum to ₹140 billion (US$2.1 billion)
Coal Mine Allocations:
A 2012 CAG report on Coal Mine Allocation received massive media and political reaction as well as public outrage. During the 2012 monsoon session of the Parliament, the BJP protested the Government's handling of the issue demanding the resignation of the prime minister and refused to have a debate in the Parliament. The deadlock resulted in Parliament functioning only seven of the twenty days of the session.
The CAG report criticized the Government by saying it had the authority to allocate coal blocks by a process of competitive bidding, but chose not to.  As a result, both public sector enterprises (PSEs) and private firms paid less than they might have otherwise. In its draft report in March the CAG estimated that the "windfall gain" to the allocatees was ₹10673 billion (US$160 billion).  The CAG Final Report tabled in Parliament put the figure at ₹1856 billion (US$28 billion.
While the initial CAG report suggested that coal blocks could have been allocated more efficiently, resulting in more revenue to the government, at no point did it suggest that corruption was involved in the allocation of coal. Over the course of 2012, however, the question of corruption came to dominate the discussion. In response to a complaint by the BJP, the Central Vigilance Commission (CVC) directed the CBI to investigate the matter. The CBI named a dozen Indian firms in a First Information Report (FIR), the first step in a criminal investigation. These FIRs accuse them of overstating their net worth, failing to disclose prior coal allocations, and hoarding rather than developing coal allocations.The CBI officials investigating the case have speculated that bribery may be involved.
The scandal was first exposed due to the CAG report in the matter in December 1995. The report alleged of fraudulent withdrawal of government funds worth ₹9.5 billion (US$140 million) in the Bihar animal husbandry department against non-existent supplies of fodder and medicines. Subsequently, based on Patna High Court's orders, CBI investigated the case and registered as many as 63 cases. Many accused have been convicted while many cases are still under trial.
Krishna-Godavari (KG) D6 Gas Block:
The oil ministry imposed a fine of 7000 Rs. crores on Mukesh Ambani's company for the sharp drop in production of gas and violations mentioned in CAG's 2011 report. Oil ministry did not approve company's US$7.2 billion stake in deal with BP.So Jaipal Reddy known for his honesty was shifted from oil ministry to the Science and Technology ministry owing to pressure from Reliance group of Industries.RIL allowed the CAG to begin the audit in April this year after stalling it for a year. But unresolved issues could stall audit of KG Basin, again. Then Reliance appointed Defence Secretary Shashikant Sharma as new CAG to audit KG Basin, said Prashant Bhushan in KG D-6, most of the cost had been recovered by the private player and the increase in price would only go as profit. About 90% of receipts from K-G D-6 were so far booked as expenditure and in the remaining 10%, only 1% was paid to the government and rest 9% went to the operator as profit.
Here are some well known CBI probes:
Because of the CBI's political overtones, it has been exposed by former officials such as Joginder Singh and B. R. Lall (director and joint director, respectively) as engaging in nepotism, wrongful prosecution and corruption. In Lall's book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organization has been revealed in information obtained under the RTI Act, and RTI activist Krishnan and Tripathi has alleged harassment from the CBI to save itself from exposure via RTI.
Normally, cases assigned to the CBI are sensitive and of national importance. It is standard practice for state police departments to register cases under its jurisdiction; if necessary, the central government may transfer a case to the CBI. The agency has been criticized for its mishandling of several scams. It has also been criticized for dragging its feet investigating prominent politicians, such as P. V. Narasimha Rao, Jayalalithaa, Lalu Prasad Yadav, Mayawati and Mulayam Singh Yadav; this tactic leads to their acquittal or non-prosecution.
In January 2006 it was discovered that the CBI had quietly unfrozen bank accounts belonging to Italian businessman Ottavio Quattrocchi, one of those accused in the 1986Bofors scandal which tainted the government of Rajiv Gandhi the CBI was responsible for the inquiry into the Bofors case. Associates of then-prime minister Rajiv Gandhi were linked to alleged payoffs made during the mid-1980s by Swedish arms firm AB Bofors, with US$40 million in kickbacks moved from Britain and Panama to secret Swiss banks. The 410 howitzers purchased in the US$1,300 million arms sale were reported to be inferior to those offered by a French competitor.
The CBI, which unfroze ₹21 crore (US$3.1 million) in a London bank in accounts held by Bofors, accused Quattrocchi and his wife Maria in 2006 but facilitated his travel by asking Interpol to take him off its wanted list on 29 April 2009. After communications from the CBI, Interpol withdrew the red corner notice on Quattrocchi.
A 1991 arrest of militants in Kashmir led to a raid on heal brokers, revealing evidence of large-scale payments to national politicians. The Jain hawala case encompassed former Union ministers Ajit Kumar Panja and P. Shiv Shankar, former Uttar Pradesh governor Motilal Vora, Bharatiya Janata Party leader Yashwant Sinha. The 20 defendants were discharged by Special Judge V. B. Gupta in the ₹650-million case, heard in New Delhi.
The judge ruled that there was no prima facie evidence against the accused which could be converted into legal evidence. Those freed included Bharatiya Janata Party president L. K. Advani; former Union ministers V. C. Shukla, Arjun Singh, Madhavrao Scindia, N. D. Tiwari and R. K. Dhawan, and former Delhi chief minister Madan Lal Khurana. In 1997 a ruling by late Chief Justice of India J. S. Verma listed about two dozen guidelines which, if followed, would have ensured the independence of the investigating agency. Sixteen years later, successive governments circumvent the guidelines and treat the CBI as another wing of the government. Although the prosecution was prompted by a public-interest petition, the cases concluded with no convictions. In Vineet Narayan & Othrs v Union of India AIR 1996 SC 3386, the Supreme Court ruled that the Central Vigilance Commission should have a supervisory role over the CBI.
Priyadarshini Mattoo murder case:
In this case Santosh Kumar Singh, the alleged murderer of a 25-year-old law student, was acquitted for what the judge called "deliberate inaction" by the investigating team. The accused was the son of a high-ranking officer in the Indian Police Service, the reason for the CBI's involvement. The 1999 judgment noted that "the influence of the father of the accused has been there".
Embarrassed by the judgment, CBI Director R. K. Raghavan appointed two special directors (P. C. Sharma and Gopal Achari) to study the judgment. The CBI appealed the verdict in Delhi High Court in 2000, and the court issued a warrant for the accused. The CBI applied for an early hearing in July 2006; in October the High Court found Singh guilty of rape and murder, sentencing him to death.
This case concerns the 27 March 1992 death of a nun who was found in water well in the Saint Pius X convent hostel in Kottayam, Kerala. Five CBI investigations have failed to yield any suspects.
The CBI has been accused of supporting the ruling Congress Party against its opposition, the BJP. The CBI is investigating the Sohrabuddin case in Gujarat; Geeta Johri, also investigating the case, claimed that the CBI is pressuring her to falsely implicate former Gujarat minister Amit Shah.
Sant Singh Chatwal case:
Sant Singh Chatwal was a suspect in CBI records for 14 years. The agency had filed two charge sheets, sent letters rogatory abroad and sent a team to the United States to imprison Chatwal and his wife from 2–5 February 1997. On 30 May 2007 and 10 August 2008 former CBI directors Vijay Shankar and Ashwani Kumar, respectively, signed no-challenge orders on the imprisonment. Later, it was decided not to appeal their release.
This closed a case of bank fraud in which Chatwal had been embroiled for over a decade. Along with four others, Chatwal was charged with being part of a "criminal conspiracy" to defraud the Bank of India’s New York branch of ₹28.32 crore (US$4.2 million). Four charges were filed by the CBI, with Chatwal named a defendant in two. The other two trials are still in progress. RTI applicant Krishnanand Tripathi was denied access to public information concerning the closed cases. The Central Information Commission later ordered the CBI to disclose the information; however, the CBI is exempt from the RTI Act (see above). Chatwal is a recipient of the Padma Bhushan .
Bhopal gas tragedy:
The CBI was publicly seen as ineffective in trying the 1984 Bhopal disaster case. Former CBI joint director B. R. Lall has said that he was asked to remain soft on extradition for Union Carbide CEO Warren Anderson and drop the charges (which included culpable homicide). Those accused received two-year sentences.
2G spectrum scam:
The UPA government has been accused of allocating 2G spectrum to corporations at very low prices through corrupt and illegal means. The Supreme Court cited the CBI many times for its tardiness in the investigations; only after the court began monitoring its investigations were high-profile arrests made.
Indian coal allocation scam:
This is a political scandal concerning the Indian government's allocation of the nation's coal deposits to private companies by Prime Minister Manmohan Singh, which cost the government ₹10673.03 billion (US$160 billion). CBI director Ranjit Sinha submitted an affidavit in the Supreme Court that the coal-scam status report prepared by the agency was shared with Congress Party law minister Ashwani Kumar "as desired by him" and with secretary-level officers from the prime minister’s office (PMO) and the coal ministry before presenting it to the court .
(Source: Citations are derived from the Wikipedia ditto thru pg.2-11)
These werest hurdle before the duly installed new Government i.e. the ‘Executive’ is that it is not allowed to function, it has become difficult for the ‘Executive’ to discharge its statutory functions and duties. It appears as if these five ‘C’s have proved themselves over a period of time to be the effective hurdles irrespective of party in power. The ‘Executive’ needs to discharge the constitutional function of decision making on every issue and its subsequent execution. A weakened and week-end ‘Executive’ is not conducive to the sustenance of parliamentary democracy.
It is also true that the transparency movement has accelerated the process of development oriented decisions which seems to have off-balanced the process. This is the area of anxiety.
The factors which warrant immediate introspection are, first ,the corrupt individual citizen ,secondly , corrupt political leaders, third, disrespect for law and lawful acts at the lowest-individual level , fourth , tiresome, dull, intricate judicial procedures in India and fifthly, corrupt political parties and their practices . The Fourth Estate which was not mentioned by the said senior civil servant, but the Fourth Estate and its progeny i.e. the electronic media through its irresponsible tactics while playing the role of a spoiler misleads the society. It is true that the electronic media has played an important role in exposing the corrupt politicians in power, on several occasions it did, but while doing so they shook the faith of the common man in the political institutions in the country and made them feel helpless.
I am reminded of a story wherein a King while going to sleep had asked his monkey-maid toward his nose from flies, and when the fly sat on the tip of the nose, the alert monkey hit his sword on the nose of the King to kill the fly, the nose was knocked off where as the fly escaped.