This letter was released at press conferences in Jammu (hosted by Sangarsh RTI Movement) and in Srinagar (hosted by J&K RTI Movement) on 3 April Sunday 2011 as previously announced.
His Excellency, the Governor,
The Hon’ble Chief Minister,
and Respected Colleagues in the Government & in the Opposition
3 April 2011
The proposed J&K State Vigilance Commission is a toothless tiger that must be replaced with an effective anti-corruption agency in the Lokaykta/Lokpal pattern.
For some time, the Government of Jammu & Kashmir has been planning to address the menace of corruption through the establishment of a “J&K State Vigilance Commission.” The proposed SVC will supervise the existing State Vigilance Organisation, following the pattern and legislation of the Central Vigilance Commission’s supervision of the CBI. The J&K SVC Bill was passed by the Legislature last summer without much debate or input from civil society. It was not implemented for many months and was therefore widely assumed to be a “dead letter.” In late January, the Government notified the Act and signaled its intention to appoint the Vigilance Commissioners.
After RTI activists amongst us identified several lacunae in the Act in February, the Hon’ble Chief Minister wrote back to invite a formal analysis. In turn, the RTI activists have invited our input, as we are concerned citizens with wide experience in anti-corruption. Amongst us are former J&K Corruption Court Judges, former J&K State Vigilance Organisation officials (including former Commissioners), a former Chairman of the J&K PSC, investigative journalists, RTI activists, and a former Chief Election Commissioner of India and a former Central Vigilance Commissioner of India.
We have collectively studied & discussed the State Vigilance Commission Act and we firmly conclude that the SVC is doomed to become another “toothless” anti-corruption agency because it lacks the necessary autonomy and authority to investigate and punish corruption. We would like to explain these fatal flaws and propose a sensible remedy for the Government to pursue if it is serious about combating corruption.
First, there are obvious alterations that have been made to the template Central Vigilance Commission Act of 2003 with the intention of downgrading the SVC’s autonomy and making it subordinate to the Government. For example, at the Centre, selections to the CVC are made by a high-powered panel comprising the PM and the Leader of the Opposition and the final appointments are made by the President. Under the J&K law, selections are instead made by the State Cabinet and appointments are made by the Government (rather than the Governor). At the Centre, only the President has the authority to suspend and unilaterally remove Vigilance Commissioners. Under the J&K law, that authority has been granted to the Government (rather than the Governor). At the Centre, the (Chief) Central Vigilance Commissioner’s rank and salary is the same as the Chief Election Commissioner of India or a Supreme Court Justice, and is therefore senior to any Government official. Under the J&K law, the Chief Vigilance Commissioner’s rank and salary has been downgraded to the level of the Chairman of the JKPSC, who is at par with the Chief Secretary. In contrast, the J&K Right to Information Act of 2009 grants much greater autonomy to the State Information Commission in all of these respects. It is clear that the CVC Act was deliberately downgraded so that the SVC would be subordinate to the Government rather than being answerable only to the Governor.
Second, the proposed SVC, like the CVC, is only an advisory body with few autonomous powers. One of authors of this letter, Mr. Nagarajan Vittal, was himself the first statutory Central Vigilance Commissioner of India (from 1998 until 2002) and can attest to the futility of the current CVC structure, which permits noise-making but does not permit concrete action. In particular, the powers enumerated under Section 8 of the J&K SVC Act grant the Commission the authority to (1) give general “directions” to the Vigilance Organization, (2) initiate inquiries, (3) “review the progress” on ongoing investigations and (4) “tender advice.” However, there is no mechanism for the SVC to ensure that any of its orders are observed or that its recommendations are taken seriously. In fact, the SVC relies on the goodwill and cooperation of other departments and agencies. It orders and recommendations are voluntary, and the Commission is accordingly a paper tiger. In contrast, the J&K RTI Act of 2009 and its Rules grant the State Information Commission the power to levy fines and make references to the courts for non-compliance. Why, then, is the SVC comparatively toothless?
Similarly, the SVC lacks the authority to initiate disciplinary action on its own cognizance for cases that do not merit a full criminal trial. Under the proposed system, the SVC merely supervises the work of the SVO’s investigative officers, who may pursue only 2 possible outcomes when corruption is found: (1) the case is prosecuted in the courts under criminal law (the Prevention of Corruption Act of 1946), or (2) the case is forwarded to the concerned Departmental head for disciplinary action under the J&K Civil Servant (Classification & Control) Rules of 1956. In the first scenario, a very high standard of evidence is required, and proceedings, appeals, counter-appeals, counter-counter-appeals delay matter over many years. In the second scenario, the support and initiative of the concerned Head-of-Department is required. Under the Civil Service Rules, the departmental Head is (a) free to select a panel of his or her own choosing, which, in turn, (b) is free to take its own sweet time to formulate its own recommendations for disciplinary action, which, in turn, (c) the Department Head is then free to accept or reject. It does not require an anti-corruption expert to appreciate that disciplinary action is almost never imposed in J&K! Sandwiched between (1) backlogged corruption courts and (2) feckless departmental heads the SVO has devolved into an entirely ineffective organisation that almost never punishes the corrupt, despite the good intentions of the current Vigilance Commissioner and his colleagues.
Statistics show how the SVO is ineffective. In the past 6 years, there has been an average of only 7 convictions per year on corruption charges in the Jammu and Srinagar Corruption Courts (9 in 2005, 8 in 2006, 5 in 2007, 6 in 2008, 11 in 2009, and 3 in 2010, for a total of 42 since 2005), often for small-time corruption cases like forged birth certificates, illegal appointment orders, or bribes of a few thousand rupees! In all of these 42 cases, the convicted have appealed to the High Court to have the corruption court orders stayed, where they are all pending matters. In fact, in only 3 cases in the past 3 decades has the High Court upheld the lower court’s judgment (FIR Nos. 67/1984, 22/1995 and 71/1998; the first two are trap cases and the last is an illegal appointment case). All 3 of these cases have been appealed to the Supreme Court, where they all remain sub judice! Since 2005, approximately 200 cases have been referred to the Government with recommendations for disciplinary action, but in only 5 cases, the concerned department has responded indicating that the process would be initiated. In none of the 200 cases has the concerned Department indicated that disciplinary action has actually been applied!
This was not always the case. Thirty years ago, Jammu & Kashmir benefitted from an anti-corruption agency that had greater and more effective statutory authority. From 1962 until 1983, the Anti-Corruption Commission (ACC) of J&K exercised powers granted by the J&K Government Servants’ Prevention of Corruption Act (No. 11 of 1962). Section 17 of this Act authorized the ACC to impose disciplinary action on offending officers including fines and demotions, subject to the ultimate approval of the Governor. During its existence, the ACC was therefore relatively effective and admired. Unfortunately, these powers were removed with the creation of the State Vigilance Organisation under the Prevention of Corruption (Amendment) Act of 1983.
There are other weaknesses in the SVC Act. For example, the selection process for the SVC is opaque and poorly defined, and leaves the Government in a commanding position to pick its favorites to the Commission. Indeed, the Supreme Court intervened in early March in the P.J. Thomas affair after it was revealed that the Government appointed an ex-bureaucrat to become the Central Vigilance Commissioner despite a pending corruption case and despite the strong opposition of the Leader-of-the-Opposition. Exasperated at the breakdown in procedure and prudence, Chief Justice Kapadia and his colleagues made clear that the CVC was an “integrity institution” where only impeccable candidates could be appointed. They issued instructions in the proper and transparent procedure for appointing the CVC. Like the CVC Act, the SVC Act also includes selection criteria that favor current or former bureaucrats above the rank of a Commissioner/Secretary to become a Vigilance Commissioner. With high ranking bureaucrats policing high-ranking bureaucrats, conflicts of interest and favoritism are inevitable. In this regard, the Supreme Court also emphasized that former bureaucrats cannot be the default choice of the Government.
The SVC Act also includes no provisions for protecting whistleblowers, who are a crucial source of information for the SVO and who are frequently threatened, harassed, and targeted in retaliation for their honesty as the current and former Vigilance Commissioners can attest. The SVC Act does not include clear provisions to ensure that the SVC and SVO are adequately staffed and resourced. The SVC Act does not include provisions to ensure investigations are completed in a time-bound manner. The SVC Act does not include a provision to ensure that records of investigations are released after cases are brought to their logical conclusion. The list of flaws and weaknesses are too numerous to list here.
If the Government is serious about tackling corruption, it can turn to the Lokayukta/Lokpal model legislation, which has been prepared by a coalition of India’s most eminent jurists, advocates, former civil servants, and anti-corruption experts under the “India Against Corruption” coalition (www.indiaagainstcorruption.org). This legislation addresses all of the aforementioned flaws, as well as sundry other aspects that are critical for an effective anti-corruption agency. A copy of this bill has already been provided to the Hon’ble Chief Minister, who is free to appoint a legislative drafting panel headed by an eminent civil society leader and comprising equally of government officials and civil society representatives. This drafting panel may adopt the Lokpal/Lokayukta Bill and make suitable adaptations and improvements for the purposes of its enactment and implementation in J&K. The drafting committee may also examine the existing J&K Prevention of Corruption Act to make suitable amendments, including remodeling the SVO along the lines of a State Bureau of Investigation. In February, the Government agreed to reopen the Police Reform Bill for public consultation and there is no reason why the same cannot be done with respect to the proposed State Vigilance Commission. If the Government instead chooses to rush ahead with the proposed State Vigilance Commission, it will demonstrate that it is not serious about corruption and not serious about finding credible, long-term solutions.
We hope that the Government of Jammu & Kashmir will take cognizance of our adamant objections to the SVC Act. We trust that the Government will proceed by consulting with civil society to draft a genuine and strong anti-corruption agency law for the people of J&K.
Signatories (as of April 2 PM)
1. Justice A.M. Mir, (ret’d), former Justice of the J&K High Court
2. Tariq Naqshbandi, (ret’d) former Anti-Corruption Court Judge, Srinagar
3. Mohd. Shafi Pandit, IAS (ret’d), former Chairman, J&K PSC
4. R.V. Raju, IPS (ret’d), former J&K Vigilance Commissioner
5. R. Tikoo, IPS (ret’d), former J&K Vigilance Commissioner
6. B.A. Malla, IPS (ret’d), former DIG of the J&K SVO
7. J.M. Lyngdoh, IAS (ret’d), former Chief Election Commissioner of India
8. Nagarajan Vittal, IAS (ret’d), former Central Vigilance Commissioner of India
9. Balraj Puri, Convener for J&K, People’s Union for Civil Liberties
10. Sampat Parkash, State Pres., J&K, (ret’d), Pensioners Welfare Assoc., & State Pres., Hind Mazdoor Sabha
11. Prof. Agha Ashraf Ali, educationist
12. Prof. Zahur-u-Din, President, Forum for Democratic Rights
13. Prashant Bhushan, Senior Advocate, Supreme Court
14. Arvind Kejriwal, RTI activist, founder, Parivartan
15. Dr. Kiran Bedi, IPS (ret’d), founder, Navjyoti
16. Anuradha Bhasin, newspaper editor
17. Sohail Kazmi, General Secretary, Press Club of Jammu
18. A.A. Fayyaz, journalist
19. Pawan Bali, journalist
20. Mufti Islah, journalist
21. Sant Sharma, journalist
22. Arun Joshi, journalist
23. Muzamil Jaleel, journalist
24. Prem Shankar Jha, journalist
25. Prof. Abdul Qadri, educationist, former HOD Law, Kashmir University
26. Prof. S.K. Bhalla, educationist, Principal, Degree College, Mendhar
27. Sheikh Shakeel, Senior Advocate, J&K High Court
28. Maja Daruwala, Executive Director, Commonwealth Human Rights Initiative
29. Dr. R.R. Khajuria, founder, Vichar Kranti Manch International
30. Aruna Roy, social activist, founder, Mazdoor Kisan Shakti Sangathana
31. Dr. Vijay Sazawal, policy analyst
32. Daya Sagar, commentator
33. The membership of the J&K RTI Movement and Sangarsh RTI Movement:
Dr. Muzaffar Bhat
Dr. Shah Faesal
Dr. Preetaish Kaul
Bilal Ahmad Bhat
Haq Nawaz Nehru
Dr. Sheikh Ghulam Rasool
Paul La Porte