Sam Rajappa
May 4 2016
The BJP government of Narendra Modi is in a dilemma over whether or not to subject Shashi Kant Sharma, former Defence Secretary presently holding the office of Comptroller and Auditor-General of India, a constitutional post, whose name figures in the list of recipients of bribes in the aborted Augusta Westland VVIP helicopter purchase deal, to interrogation. On page 9 of the Italian appeal court judgment there is a seized handwritten document from middleman Christian Michel on how to distribute the bribe amount to the key people, Indian Air Force officials, bureaucrats in the Ministry of Defence including Sharma and Sonia Gandhi’s political secretary, Ahmed Patel, among others. The crucial document was written in March 2008 when Sharma was Director-General (Acquisition) in the Defence Ministry. He was appointed as the CAG in May 2013 by the Congress-led United Progressive Alliance government.
A 1976 batch Indian Administrative Service officer of Bihar cadre, Sharma was posted as Joint Secretary (Air) in the Defence Ministry in the middle of 2003. He never looked back. He was involved in most of the defence deals in the next 10 years till he retired as Defence Secretary in 2013. His political masters found him useful not only in striking lucrative defence deals but also in other matters such as ensuring a chosen line of succession for the post of Chief of Army Staff.
No defence deal takes place in Delhi without greasing the palms of political leaders and it helps them if pliable men head the different services. There is an unwritten convention in the ‘Delhi Durbar’ that 40 per cent of the kickbacks go to the key decision-maker involved, 40 per cent to the ruling political party and 20 per cent to the opposition politicians to keep them in good humour. The Indian judiciary could never touch Sharma so far but nemesis caught up with him in a Milan appeal court and he has no place to hide. Between 2003 and 2007 Sharma was the Joint Secretary in the Defence Ministry. After a brief stint as Additional Secretary, he was made the Director-General of Acquisitions in charge of defence purchases in 2007. He served in that post till September 2010. Thereafter, he served briefly as Officer on Special Duty and was appointed as Defence Secretary in July 2011.
During the last six years of his stewardship in the Defence Ministry, Sharma was involved in clearing all major purchases running into thousands and thousands of crore of rupees. Correspondingly, the defence budget grew hugely and touched Rs. 203,672 crore in 2013-14. A major share of the annual budget is accounted for by defence procurements and acquisitions. Among the controversial procurements Sharma was involved in were the payout of $ 2.9 billion to Admiral Gorshkov for refurbishing, a discarded Russian naval ship acquired by India for $ 947,000 in January 2004, the aborted Rafale deal, and resumption of Tatra trucks purchase which Gen VK Singh stopped after he was offered a bribe of Rs 14 crore by the middleman in 2012. In all these scams the CBI drew a blank.
The UPA government wanted to appoint Sharma as GAG to cover up the misdeeds in defence procurement during its 10 years in office. Kamal Kant Jaswal, director of Common Cause, on coming to know about the government move, sent a memorandum to Murli Manohar Joshi of the BJP who was the chairman of the Public Accounts Committee of Parliament, pointing out the conflict of interest such an appointment involved. Joshi ignored it. The Comptroller and Auditor-General of India is the constitutional auditor who acts as a watchdog over the expenditure and accounts of the Union government, its instrumentalities and the state governments. The CAG has been given the stature and oath akin to the Supreme Court Judge.
In the Constituent Assembly debates, BR Ambedkar and others described the CAG as the most important officer under the Constitution and one who must be above suspicion like Caesar’s wife. “If this functionary is to carry out the duties which are far more important than the duties even of the judiciary, he should have been certainly as independent as the judiciary,” said Ambedkar. Rajendra Prasad, the first President of India, observed, “It is of the highest importance that a proper check is maintained on expenditure and that the funds drawn by various government departments are not in excess of the appropriations.” Speaking about the role of the CAG in the preservation of democracy in the country, S Radhakrishnan, as Vice-President, said, “The Audit Department is obliged to say things which are embarrassing to the government on account of their responsibility.” Vinod Rai, Sharma’s immediate predecessor, did just that and came a cropper.
Finding the BJP was in consonance with the appointment of Sharma as the CAG, N Gopalaswamy, former Chief Election Commissioner, two of the former chiefs of the Naval Staff, Admiral (Retd) L Ramdas and Admiral (Retd) RH Tahiliani, EAS Sarma, KK Jaswal and Ramaswamy Iyer, former Secretaries to the Government, BP Mathur, former Deputy CAG, MG Devasahayam, former IAS and Indian Army Officer, and S Krishnan, a retired officer of the Indian Audit and Accounts Service, filed a petition in public interest seeking a writ of quo warranto or any other appropriate writ to declare the appointment of Sharma as the CAG as void as it was made arbitrarily by a procedure that did not withstand the test of constitutionality and also on the ground nemo judex in causa sua which means no person shall be a judge in his own cause, in the Delhi High Court. The petitioners first filed such a public interest litigation before the Supreme Court under Article 32 of the Constitution. The apex court, by its order dated 15 July 2013, directed the petitioners to approach the High Court instead. The High Court did not see any merit in their petition and dismissed it.
The Constitution has not prescribed the method of selection of the CAG, but it is obvious that it should be in a manner that enables the selection of the best person for the office. The Supreme Court has repeatedly held in a number of judgments that every selection must follow a process consistent with the rule of law. The process must be non-arbitrary and transparent. Since the office of the CAG acts as watchdog over the government, the process cannot be at the sole discretion of the executive and has to be non-partisan. The UPA government followed no system while appointing Sharma as the CAG except to protect its own interest and hide the bribe takers from the public. There was neither a selection committee nor any call for applications or nominations. The government could not have found a person with greater conflict of interest than Sharma.
There is no provision in the Constitution or the CAG Act for the person holding the high office to recuse himself in situations where clear conflict of interest exists. Unlike the Supreme Court, the Election Commission or the Central Vigilance Commission, the CAG is a single-member body. Major defence procurement and acquisitions cannot be exempted from audit. Any exemption would surely be unconstitutional. The Supreme Court had ruled that the CVC, akin to the institution of the CAG, was an “integrity institution” and that a person who was himself the subject of scrutiny, irrespective of his personal integrity, would not be able to perform his duties impartially and would affect his functioning. This judgment applies with greater force in the appointment of Sharma as the CAG. Nevertheless the apex court, whose primary role is to determine substantial questions of law relating to the Constitution or of general importance, failed to direct the government to form a transparent procedure for the selection of the CAG while disposing of the Special Leave Petition of the nine citizens against the High Court order rejecting their contentions based on an incorrect appreciation of law and facts of the case. Does the Supreme Court think the CAG is not an integrity institution?
The writer is a veteran journalist and former Director of The Statesman Print Journalism School.
Read more at http://www.thestatesman.com/mobi/news/opinion/cag-out-of-the-bag/140143.html#6vwa7uzpWrfsWEEF.99
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