*Rajan Kashyap


If integrity is defined as “firm adherence to a code of moral, ethical values”, all institutions for governance are expected to maintain utmost integrity. What, then, are ‘integrity institutions’ that the Supreme Court of India mentions in a recent judgment striking down the appointment of India’s Chief Vigilance Commissioner? In the judgment the Supreme Court traces the concept of integrity institutions to certain democratic bodies established in the USA, UK, Canada, and in several states of Australia. They are assigned such names as Independent Commission against Corruption (Hong Kong), Corruption Commission (Western Australia) and Misconduct Commission (Queensland). The verdict notes that these powerful instruments have been given autonomy and insulation from external influences. The Supreme Court bluntly states, “In our view CVC is an integrity institution.” Since CVC is to control vigilance administration in the country, the Commission is expected to be the epitome of ethical standards in administration, the model for all official organizations. The Commission is the ultimate authority, appropriately armed with vast powers for enforcement of probity in public life.

The Constitution of India provides for the establishment of several such institutions. The Election Commission of India is expected to ensure free, fair and impartial elections, the bedrock of a vibrant democracy. The Comptroller and Auditor General of India enforces financial discipline in the management of public funds. The Union Public Service Commission, along with State Public Service Commissions, is a vehicle for assuring merit in selection for public appointments. The mother of all integrity institutions is of course the Supreme Court itself, for it sits in judgment over maintenance of impeccable integrity of every other public body. The landmark pronouncement of the Supreme Court has demanded the accountability of the highest executive functionary, the Prime Minister of India, in making appointment of CVC, the most powerful watchdog of the nation’s morals. The judgment makes a crucial distinction between “legality and merit as also between judicial review and merit review.” The Court clarifies that “Government is not accountable to the courts in respect of policy decisions. However they are accountable for the legality of such decisions.” Obviating any perception of conflict between the two vital organs of the state, the Executive and the Judiciary, the Supreme Court quashes the appointment of PJ Thomas as invalid in law. The order asserts that it has confined itself to the legality of the recommendation made by a high powered committee headed by the Prime Minister to the President of India.

The court accepts that the PM’s recommendation in the matter is binding on the President. It holds, however, that the PM’s committee erred in ignoring certain well founded doubts about the integrity of the candidate it recommended for the august office. As per statute the other members of the committee are the Leader of the Opposition and the Union Home Minister. Since the leader of the Opposition dissented, the recommendation was carried by majority. Even as the court agrees that a decision of the committee need not be unanimous, it mandates that when there is no unanimity, the majority must give specific reasons for overruling any dissent.

The orders of the Supreme Court in the case of PJ Thomas have assuredly embarrassed the Union Government. Its implications, however, go far beyond the judicial ruling of a single government decision as being untenable or illegal. Firstly, it leaves no room for arbitrariness by any future government in similar cases. While the Supreme Court takes note of deficiencies in the functioning of government, it lays down concise guidelines in matters concerning integrity institutions. Secondly, it strengthens the role of the political opposition in the making of crucial appointments. Thirdly, it brings into the public domain important decisions of concern to the common citizen, who can question these in an open forum. It continues the tradition of transparency in decision making at the very highest level. Last but not least, the judgment alerts all integrity institutions to be prepared for inevitable public scrutiny of their performance. The institutions call into account numerous other bodies, spread over the entire country, that are entrusted with governance. Any improvement in their own performance would percolate to the cutting edge of administration.

The directions given by the Supreme Court in respect of appointment of CVC would in future apply equally to the role of several other ‘integrity institutions’ at the national and state level, all of whom play a critical role in governance in their respective fields.

Over the years India has followed other mature democracies in establishing institutions for regulation and enforcement of norms of ethical behavior by public authorities. By virtue of the autonomous authority vested in them, integrity institutions evoke both fear and reverence. By law they function independently of political and other extraneous considerations. They also stand for utmost accountability and transparency. In an imperfect polity, these very characteristics of independence, openness and principled decision making create a dilemma for entrenched interests. Many elected governments in the states and even at national level have been chary of arming them with adequate authority and administrative support. Thus the Lokayuktas in the states are currently hamstrung by the limited powers given to them by statute, and by the lackadaisical support of the states they serve as ombudsmen. Witness the recent crisis in the state of Karnataka, where the Lokayukta had to confront the state government on issues of political corruption. Legislation creating the office of the national ombudsman, the Lokpal has been hanging fire with successive governments over several decades, possibly on account of apprehensions regarding the wide powers the office would have for checking and punishing corruption in high places. “The nation’s morals are like its teeth: the more decayed they are the more it hurts to touch them”, observed the playwright George Bernard Shaw.

Under the Right to Information Act, 2005 the appointment of Central Information Commissioners is by a committee consisting of the Prime Minister, the Leader of the Opposition, and a Union Minister, a pattern similar to that enjoined for appointment of CVC. Unanimity has often eluded the high powered committee. In many states, the majority view (that of Chief Minister and his Minister) in a similar committee for recommending the appointment of State Information Commissioners has prevailed over the dissent of the Leader of the Opposition. The spirit of the statutes for integrity institutions was to prevent arbitrariness by the political party in power by including space for dissent by the political opposition. Unfortunately appointments to important offices, including members of state Public Service Commissions, often continue to be based on extraneous considerations, which can outweigh merit. This erodes the impartiality and quality of performance. As the Bible puts it, “If the salt hath lost its flavour, wherewith shall it be called salt”?

An example of how the government missed a great opportunity to harness the power of an integrity institution in the national interest is the role and status assigned to the Telecom Regulatory Authority of India (TRAI). The telecom sector is today hailed as a success story in our country’s economic development. When TRAI was constituted in the year 1997 it was given both authority and responsibility. By all accounts TRAI successfully put in place transparent systems for regulation and control, and to bring in competition in the entire telecom sector. The benefits that the subscribers are enjoying today are on account the level playing field provided to competition. This has not only made telecom services affordable, but also vastly increased the number of persons availing of them. Top companies in the world are now vying with each other to enter the vibrant Indian market. The term of office of the members of TRAI was 5 years. In the year 2000, just when TRAI had established its credentials as an institution of integrity, the term in office of TRAI’s members was abruptly curtailed from 5 years to to less than 3 years. The members quietly faded away, and the role and status of TRAI was redefined by statute. The changed situation would obviously have emboldened those at the helm to take decisions that led to the 2G scam. TRAI, it transpires, is an integrity institution that might have been, but for the own goal scored by the government in divesting the Authority of its authority.

Of late the Supreme Court of India has been proactive in tackling issues of corruption. According to a foreign newspaper, The Economist, the Supreme Court ruled in as many as 50 cases of corruption within the last year alone. Observing the surge in India’s economic growth, the paper expects that massive volumes of funds are likely to be infused in the economy in the coming years, much of the investments being in the public sector.

In today’s scenario, integrity institutions, led by mother Supreme Court, are bound to have an ever increasing role to play. The moot question is, will the government give them teeth, and allow them to chew?


*Mr. Rajan Kashyap, formerly Chief Secretary, Government of Punjab, is Adviser, Mahatma Gandhi State Institute of Public Administration, Punjab.

- Kamal Kant Jaswal

October – December, 2011