Tuesday, September 19, 2017

Defence is an Important Ecosystem Amongst Many Others

I must confess upfront that I was bemused to read Arun Prakash’s piece (Agenda for the Raksha Mantri, IE/Sept 13, 2017). As a retired IDAS officer and a former controller general of defence accounts (CGDA) and a former financial adviser defence services (FADS) in the MoD who demitted office last year, let me put things in perspective.

Democracy all over the world functions through a universal principle of separation of power and a system of checks and balances to uphold the rule of law, where no organ is omniscient and omnipotent. In India, we have four columns: executive, legislature, judiciary and the fourth estate (media) – each with an assigned role to play within its legitimate bounds to checkmate the other. Embedded in each column, there's a system of checks and balances. Finance is one such. Its role is integrated but putatively adversarial (not my words but of eminent commentators), but a necessary one to carry out due diligence of taxpayers’ money. Yet, despite all such sanguine architecture to checkmate unholy impulses, we still have plenty scams, most notably the AgustaWestland helicopter scam, where one former Air Chief Tyagi was jailed and charge-sheeted. The middlemen are galore in MoD; doubtless they function with insiders’ connivance and help. Keeping procurement clean is every stakeholder’s job; and a system of checks and balances is dire.   

Prakash is right on the issue of lack of expertise and domain knowledge on the part of most bureaucrats in the MoD and this doubtless is an area that needs addressing. Bureaucrats with no idea of the vast defence ecosystem must have a first stint at Deputy Secretary/Director level – not as Joint Secretary, where work pressure is too high to leave room to learn and acquaint. Training in Defence Services Staff College and National Defence College too will help.

But his vision is blinkered on the role of IDAS officers' functioning as “Integrated Financial Advisers” in the MoD. Their role, as per finance ministry’s order of June 1, 2006 goes much beyond assisting in “budgetary planning” and in “expediting financial decision-making”. Their role as rep of ministry of finance in the administrative ministry entails examining issues from financial angle to ensure value for money and improve quality of expenditure. It’s akin to a Chief Financial Officer’s in a corporate structure: to ensure fiscal prudence and sound financial management and to accord priority to macro management in achieving the outcomes set by ministries as goals. They’re crucial for the successful planning and implementation of various schemes/projects and to ensure budgetary integrity. This needs to be understood. I concede many IFAs fail to fully comprehend their role, failing to play their role – acting more as auditors. They need to be a part of the issue/solution, not a part of the problem. But it isn’t wise to deride their role and throw the baby with the bathwater. The need to place right IFAs on merit by invocation of a transparent arm’s length system can’t be over-emphasized.

The “advise” hasn’t been abandoned. No, not yet! Even at the cost of sounding presumptuous, I’ll add that MoD (Finance) shoulders an outsized responsibility in the ministry of all four departments, all the three Services and the many inter-services organizations. It simply can’t abandon its responsibility; it’s their credo of relevance, their bounden duty. This has nothing to do with lying in ambush as “auditors” and waiting for someone to make a mistake before pouncing. These are harsh, sweeping generalizations, stemming from a complete ignorance of extant orders. Audit is quite a distinct function, including internal audit that the IDAS officers and the defence accounts department do as an aid to defence management, and is always done ex-post; it can’t be done ex-ante, because it’ll be an anachronism. While it’s essential for bureaucrats to understand the defence ecosystem, it’s equally imperative for the services to acquaint themselves and appreciate government orders and civilian bureaucracy’s ecosystem. 

Nor is Prakash right in saying that there is an acute lack of military expertise in the MoD and an absence of collegiate consultation between civilians and Service HQ. The contrary is the truth. From my own experience, I can say ex cathedra that at every stage including budget-making and delegation of financial powers, there are discussions and dialogues galore, apart from the structured collegiate decision-making in the contract negotiating committee (CNC) for procurement of capital and revenue items. The delay, when it happens, hence has to be shared by all –not the MoD alone.

Let truth be said. There are vast areas, which aren’t just cases of differing perceptions between the civil and defence bureaucracies. There are many glaring cases of abuse of personal entitlements (leave travel concessions/official tours and disability pension) on the part of senior service officers pointed out by the MoD in the recent past where actions by the services headquarters haven’t exactly measured up to the impeccable standards they pretend to have set. These personal cases, I guess, have festered over time and have become sore points now. And given the visibility the ex-servicemen command in the media, little wonder these rants spew out often in the public domain. Modesty forbids me though from articulating and putting them out in the open.  

As a mature society, it’s rather we accept it doesn’t pay to stridently point fingers at each other – the MoD and the Services’ Hqrs. In a parliamentary form of democracy, both work together under the direction and superintendence of the political leadership, the people’s representatives. It’ll help to view India holistically as one whole rather than in segmented parts, since the responsibility of governing the nation is the PM’s and his council of ministers, and they carry with them the whole burden of nation’s concerns in other sectors (health, sanitation, agriculture, environment, HRD to name just a few) that are just as important as any other like defence, home or external relations. We need to live like one, rather than as an Indian twin-nation – India and Bharat – co-living in stark disparate pockets and differing stages of human development. Living and thinking apart is far from ennobling – and certainly not very edifying.

(A redacted version of this piece titled In Defence of the Bureaucrats was carried in The Indian Express, September 19, 2017)

Wednesday, September 6, 2017

What Nirmala Sitharaman Can Do to Revamp the Opaque Defence Ministry


An overview of all defence scams and scandals can be traced to opacity and secrecy. Within the confines of confidentiality and secrecy, there is a need to inject transparency through disclosure and deterrence.
A new full-time defence minister – Nirmala Sitharaman – has been given charge at a time when the government has decided to implement several of the recommendations of the Shekhatkar Committee. I will not touch upon them since I haven’t gone through the report (it is not available yet in the public domain), and it would be presumptuous on my part to comment on it. Instead, I’ll list issues I’m familiar with that are often missed by committees as either insignificant or plain uncomfortable, or for going beyond the terms of reference.
An overview of all scams and scandals in the Ministry of Defence (MoD) would suggest that their origin can be traced to opacity and secrecy, shrouded in an obfuscating mix of technicalities and procedures. Opacity, born of secrecy, breeds manipulations. Much hullaballoo is made in the name of secrecy in today’s time, when the world, thanks to technology, knows what other nations (especially their perceived enemies) are acquiring. The services qualitative requirements (SQRs), field evaluation trials (FETs) and the porous system we have in place where selective (but crucial) information is conveniently leaked while officially remaining a secret can be largely redressed through a process of transparency. How the move towards growing openness and transparency can be calibrated and determined, and when and what can be uploaded, shall be a challenge that will need meticulous working out, including elaborate discussion within the MoD. But transparency is doubtless the answer to getting rid of scams and scandals in defence procurement.
This is not to say that all issues can – and should – be put on the Internet. But the possibility of sharing information among important stakeholders in the services intranet could be explored. Sunlight is the best disinfectant available and must be leveraged. Even ex post scrutiny of performance will put the fear of punitive action in public servants’ minds, perhaps leading them to desist from going through with their questionable ideas. Yet, within the confines of confidentiality and secrecy, there is a need to inject transparency through disclosure and deterrence. Given that most revenue non-salary procurements need to be done through e-procurement, as per subject orders, it is imperative that supply orders or contract agreements are generated in auto mode on a real-time basis and access to the same is made available to all stakeholders – such as a higher competent financial authority and an internal audit team. In such a scenario, the internal audit team will be enabled to do concurrent audits, facilitating payouts as soon as goods materialise and invoices are preferred to the paying authority.
Incurring expenditure on capital items through revenue procedure (CBRP), which has been going on for about a decade, is a very questionable – even reprehensible – practice and must be stopped. The comptroller and auditor general has already flagged this issue. To me, the ideal thing is to merge the Defence Procurement Manual (DPM) and the Defence Procurement Procedure (DPP) into one procedure, the DPP, and with the need for trial for established capital/revenue procurement items eliminated. It will put in place the same rigour for revenue items as for capital acquisition – something completely missing on CBRP items.
Leakage of government revenue
Putting in place a mechanism to ensure that revenue generated through the commercial utilisation of defence land or buildings is credited to the government and to stopping the leakage of government revenue often escapes attention of the ministry. Given the size and resources of the organisations, the revenue is huge. Sadly, the bulk of the revenue generated through commercial utilisation of defence land is siphoned off to non-public/regimental funds, with a pittance credited to government accounts. What galls is the ingenious ways adopted: splitting the license fee into two – administrative charges (rebate) and license fee – the bulk (rebate) going to the non-public fund/regimental fund and a minuscule percentage (license fee) to the public exchequer. The Public Accounts Committee’s scathing observations on the loss of government revenue in 2013-14, directing the ministry to formulate policy within six months to realise government dues from the commercial utilisation of defence land, seem to have had no effect yet, even after four years. A rough estimate would point toward diversion of thousands of crore in the last few decades – possibly more, if indexed to present money value.
There is nothing wrong with considering rents and the lease of defence land, wherever there is an excess, for semi-defence/government/community use like technology parks, industrial areas etc., with appropriate earnings through user charges or lease rent. The prospect of categorising cantonments and making them cost-neutral centres, and also enabling them to become smart cantonments, must also be considered. Further, there is a need to mandate the use of alternate sources of non-conventional energy (including solar energy) as an alternative to the conventional energy consumption within the armed forces. The need for an energy audit wing in the services to review and suggest ways for lower consumption of energy cannot be overstated. Considering the vast availability of defence land, the use of solar energy in a large way would help align with government commitments towards efforts to reduce climate change.
With heavy capital expenditure being incurred by the ministry in the last ten years, the burden of maintenance for the systems acquired is going to weigh heavily on the finances of the ministry in the years to come. There a doubtless need to articulate a proactive policy for maintenance of inducted weapon systems, both Indian and foreign, keeping in view the Make in India policy initiated by the government. In this regard, there is a need to look at measures to streamline the process with respect to policies for maintenance (through Indian-deemed original equipment manufacturers or through foreign manufacturers or government-nominated agencies); develop a benchmark for cost of maintenance; and agree on escalation percentages with foreign vendors to bring down the repair and maintenance costs, as these vendors clearly seem to be taking advantage of monopolistic situations. An analysis could also be made to explore possibilities of opening these monopolistic items to Indian industry with an assured order to kick-start indigenous production of spares. The escalation percentage for annual maintenance cost of repair in dollar/rouble terms would need revisiting depending on the ratio of indigenous/foreign components and the dollar/rupee exchange rate, in view of the changed geopolitical dynamics.
In view of the increasing use of technology and higher life expectancy, there is a need to review possibilities of enhancing the retirement age at various levels to increase utilisation of manpower for a greater number of years. Considering the low age of retirement for jawans and officers, increasing the age by 2-4 years would be a great saving in the form of delayed payment of retirement benefits. Exploitation of trained and disciplined human resources discharged from the services early and rehabilitating them to utilise their competence in appropriate positions in civilian employ in the MoD for mutual benefits is one of the salient challenges confronting the services today. It will not only reduce the burden on pension liabilities but would also help in placement of personnel in a familiar ecosystem. Also, given the burgeoning pension burden that has already touched about 24% of the total defence budget in FY 2017-18, there is a need for the armed forces to join the National Pension Scheme (NPS) that has already been introduced for all civilian employees from January 2004. A separate NPS for the armed forces can be worked out, taking into account all elements of entitlements peculiar to the services. While on this subject of enhancement of retirement age, I must flag that it is rather surprising that the prime minister’s directive issued 14 months ago under Rule 12 of the Transaction of Business Rules, 1961 to increase the retirement age from 60 to 65 for CHS doctors hasn’t been invoked for Armed Force Medical Services doctors yet.
Ordnance factory and DRDO orders
On DPSUs  and ordnance factories, it is wise to tackle the root problems and address concerns. This is what needs to be done: tighten the standard estimates in DPSUs and ordnance factories, which is the matrix and an important cost determinant to set the tone for efficiency in a production organisation; timely revision of percentage of unavoidable authorised rejections as and when technological advancements happen on shop floors, to move towards greater efficiency and timely production; e-procurement; and backward integration with vendors through trust and open examination of vendors’ cost sheets to ensure quality of product(s), timely delivery, economy of expenditure and creating necessary synergy for harnessing future technology. Before apportioning the blame on ordnance factories for less production or delayed materialisation of items, it’s only fair and important to threadbare examine the reasons for the delay – year after year, in the last many years/decades – in the placement of indent, especially in its processing and approval in the MoD. Often indents are placed months after the production year has begun leaving no time for the ordnance factories to materialise the raw material required for production of the items, let alone produce them. This is not to overlook the frequent changes made by the services. These issues need serious and immediate attention.
The Defence Research and Development Organisation’s (DRDO’s) development processes and services’ requirements need syncing through joint ownership and accountability from the very beginning and till the goal/mission fructifies to create a convivial ecosystem for seamless jointness. Realistic project development costs (PDCs) need working out much as the flip side of time and cost overruns have to be capped through strict monitoring and adequate deterrence (financial and technical) to emphasise the importance of timely completion of tasks undertaken. Every instance of a delay in PDC needs to be owned conjointly and explained, deliberated by the DRDO and the concerned service. While the role of the DRDO ought to be exploited to the fullest by the services to achieve objectives of translating ‘Make-in-India’ into a reality, it is also absolutely essential for the DRDO to focus on critical core areas by ridding its deadweight avoirdupois that has procreated 50-odd labs/centres/institutes to fatten itself over the past decades. In the spirit of earning bang for tax-payers’ buck, the need to shun conspicuous consumption, to embed accountability by hugging Fiscal Responsibility and Budget Management principles to ensure transparent fiscal management in revenue items like travel and office contingencies, better coordination between them and the three services/other departments of the MoD, cannot be over emphasised.
There is a need to delegate more and more powers to cut down on time without any value addition and make every layer responsible for their decisions. While the DFPDS-2016 has set the tone with higher delegation, it has also suggested greater accountability through more transparency by leveraging technology, duly aided by concurrent audit that will, throw up instances of bad/poor decision-making to act as deterrence on malfeasance/misfeasance and consequential mismanagement of public funds. Going forward, more innovative and non-intrusive ways of Internal Control Risk Management (ICRM) framework and oversight mechanism will need to be injected into this dynamic equilibrium/system.
And this is where the role of the Defence Accounts Department (DAD) assumes greater significance. Far from the public gaze and little known outside the ken of defence ministry, the DAD quietly audits defence services’ ledgers in the nature of internal check on defence receipts and expenditure. Helmed by the Controller General of Defence Accounts (CGDA), a Secretary-rank officer, it carries out internal audit of expenditure of army, navy, air force, ordnance factories, border roads, coast guard, CSD, and the DRDO, through a crisscrossing network of offices spread across the country.
Speaking from personal experience, more than 35 years ago, it was this mechanism that provided me insight into how cyclones are “manufactured” in trans-Himalayan belt or how road-rollers are “eaten away by white ants” and many such others, each as incredulous as the other. Yet, today internal audit remains fuzzy and wrapped-in – an everyman-for-himself and Devil-take-the-hindmost audit-auditee game – rather galling in times of transparency and legislative focus on outputs and outcomes. Doubtless there is a need to shift paradigm, to converge financial propriety, computerised accounting techniques, administrative mandate for good governance, and to refine skill-sets to make it a pulsating tool for concurrent corrective mechanism done transparently.
Yet beyond this audit function, the DAD is an important cog in the defence financial advisory system. The more the delegation, the more pivotal their role gets, and more the need for transparency. Sadly, all efforts made towards transparency have been flagrantly given a go-by. With no transfer policy in place for IDAS officers despite it being in the works the past two years, networking and nepotism are rife. This is indeed portentous especially in times of higher delegation and devolution of financial powers, when wrong selection of personnel manning these posts of integrated financial advisors can play havoc with the system and become the nurseries of future scams. Needless to say, invocation of an arm’s length system, long overdue, is extremely dire.
Budgetary outlays being an estimate of the likely expenditure for the financial years, there is always the likelihood that as the year rolls out, certain needs for spending funds on certain items budgeted for, are either less or found not necessary. The focus hence should be on the quality of expenditure through diligent scrutiny and not on the need to expend the funds on grounds that the budgetary outlays have to be spent since non-spending leads to lapse of funds – a sure sign of management failure, as is the common perception. Care has also to be taken to move out of the colonial mindset and the many relics of the past to make the organisations pulsating realistic set-ups, which, while reposing faith on incumbents to act in national interest as public servants, abhors invasion of market economy values into a regimental order. In short, outcome-oriented qualitative expenditure with clear deliverables (tangible and non-tangible) ought to take centre-stage rather than the quantitative utilization of budgetary outlays.
I’m aware that I’ll be accused of dissimulation if I do not highlight one other serious weakness of the MoD (as with other ministries): often there is much to be desired in the selection of the right personnel for senior posts. Defence is an extremely vast and an entirely different ecosystem with mixed and varied personnel drawn from very diverse services and backgrounds, and with (to just highlight a few) protocols and shibboleth exclusively its own vis-à-vis other ministries. This, by no means, is to understate the importance of and diminish the role and importance of other ecosystems. The first, even foremost, (naturally) is the familiarity with the subject of defence with all that it entails, and necessarily first-hand experience with the men and material. Unlike other ministries, technicalities are aplenty, the acronyms befuddling, and the vocabularies used arcane (or exotic depending on your familiarity) and nuanced for a novitiate. Dealing with huge public funds (about 17-18% of the union government’s budgetary outlay) as it were, also calls for integrity well beyond the financial – intellectual – because of the humongous spends on modernisation of services’ equipment/platforms spread over years, with likelihood of multiple cascades and with potential to ripple around.
While it would be invidious on my part to point fingers at the questionable acts of any personnel or organisation as an important stakeholder in the procurement process, I would merely allegorically allude to the fact that the distribution of opportunity has typically become an insider trade. Or how else can one explain the egregious “wrongs” perpetrated in the AgustaWestland procurement case when the Defence Acquisition Council (DAC) headed by the RM and with the three services chiefs, defence secretary, financial advisor defence services, DG (acquisition) and CISC as members, blundered through in their judgment – especially in the face of finance ministry’s serious reservations – to recommend the case for cabinet approval? Warped motivations and a sleight of hand of and the grime of corruption is all over the place – haemorrhaging quietly for years on end. Therein lies the nub.
Initiating reforms as suggested above could be done individually at the department/services level (bottom-up approach) or as a complete programme through a formal empowered mandate of the government (top-down approach). Given our national ethos and proclivity, even at the cost of sounding banal, I’ll like to stress that the quantum/levels of discretion must be highlighted to the implementers to minimise distortions. It would necessitate creating favourable conditions on the demand side (awareness, trainings, competence-building) as well as on supply side (e-recordkeeping, openness and transparency) to discourage abuse of discretion. The idea is to harness the ‘power’ of discretion by controlling and channelizing it in the direction the MoD intends taking with emphasis on Make in India, more indigenisation, need for innovation through strategic partnership, and holistic and ingenious recalibration of financial resources tempered with transparency. That would lend balance and pragmatism; it will require going into these aspects as also other co-related issues that are likely to surface on deeper scrutiny and analysis.
Sudhansu Mohanty worked as Controller General of Defence Accounts and then as Financial Adviser, Defence Services before retiring on May 31, 2016.
(Reproduced from The Wire)

Sunday, August 20, 2017

Silence in Defence: Defence Ministry is haemorrhaging its own human resources


All specialist and super-specialist human resources are precious, yet internal dynamics seem more precious for the Ministry of Defence (MoD). It has been more than 14-months since the Prime Minister ordered to enhance the superannuation age of Non-teaching, Public Health Specialists and General Duty Medical Officers sub-cadres of Central Health Service (CHS) to 65-years with effect from May 31, 2016, but this has had no effect on the MoD. This is puzzling. The PM’s order issued under Rule 12 of the Transaction of Business Rules, 1961, is rarely invoked as Departure from Rules. The urgency can be seen from the Cabinet Secretariat most immediate ID dated May 31, 2016, which, while conveying enhancement of superannuation age with immediate effect, directed the Department of Health and Family Welfare (DoHFW) to seek ex-post facto approval of the Cabinet. The DoHFW implemented the PM’s directive immediately on May 31, 2016, as did the Ministry of Railways. Among other ministries, Ministry of Home Affairs with a sizeable number of doctors working in the Central police forcesCRPF, BSF, CISF, ITBP, NDRF-India, NSG, and SSBtoo implemented the same from June 30, 2016. Bafflingly, the MoD hasn’t, yet. 

Today Lieutenant Colonels (and equivalent in Air Force/Navy) in the AFMS retire at 56, Colonels (and equivalent) at 58, Brigadiers (and equivalent) at 59, Major Generals (and equivalent) at 60, Lieutenant Generals (and equivalent) at 61 (with 2-year tenure) and the Director General Armed Forces Medical Services (DGAFMS) at 62 (with 3-year tenure). Note the pensioning of the Lieutenant Colonels of specialist/super-specialist non-combatant at 56! And 99.5 per cent of AFMS doctors retire at the age of 59 or belowsix years before their civilian counterparts! There is an acute shortage of doctors12–15 per centin the AFMS. The recruitment scenario is gloomy going by recent figures: of 2000 candidates who applied for 675 vacancies, 800 appeared in interviews, 300 were selected, and 175 joinedless than 26 per cent of the vacancies. Such is the dismal picture, yet such is MoD’s burden of silence. 

Doctors are a rare human resource. Youngsters loathe joining medicine due to long gestation period and delayed employment, apart from the hard life it entails. Compare the medical graduates’ tuition fee with engineering and the 4x higher fee for the former over the latter will exemplify why doctors don’t fancy joining the AFMS. Not to speak of specialisation courses (MD/MS) or the super-specialisation courses (DM/MCh), which today costs a bomb, plus the 3+3 years consumed. The AFMS doctors can undertake the PG courses after 4 years of service, the time they serve in field areas. Medical science is stochastic; patients today bid fair to see specialists for their limbic and neural issues. The Internet and smart phones have wizened them. Given their regimented thinking, I can see the services headquarters sensing unease. How doctors serving under them, work beyond theirincluding service chiefs’superannuation age? This is old paradigm, long atrophiedpassé today. It stems from the hoary perception that taking order from a junior in age, rank notwithstanding is improper. 

The perception is invalid. Today in the services, younger officers of higher ranks supervise elders lower in pecking order, due to differentiated promotional timelines. It is endemic in organisations encompassing multifarious expertise. Levelled field is a mirage. The services’ retirement age had always varied with doctors retiring at a higher age vis-à-vis others. When services chiefs retired at 56, AFMS doctors retired at 60since 1936. The retirement age of Major/Lieutenant Generals in army and their equivalents in navy/air force has over the past years gone up to 60 with the three chiefs presently retiring at 62. In the AFMS, the retirement age at these two ranks has gone up from 60 to 61 with only the DGAFMS retiring at 62. The issue goes far beyond this disquiet over perception. AFMS is a specialised servicemore healthcare than armed discipline. True, they’re part of the services set-up and important support arms, crucial for the Services wellness. But they belong to a different worldof patient care, empathy, curing, healing. This world demands different competencies/prescriptions, reason why the government has given them an extended run. With similar job profile, what’s applicable to the CHS is applicable to AFMS. What’s sauce for the goose is sauce for the gander! There can’tand shouldn’t –be two different standards across ministries. 

To retire AFMS officers at an age that’s lot younger than their civilian counterparts is both discriminatory and a cumulative loss; it inexorably haemorrhages precious resources. During a recent visit to two central universities as member of the UGC-appointed team, I was bemused to learn the vast difference in tuition fee (for all four-and-half-years) of a government-funded MBBS course and a private one. While the government-funded hugely subsidised course was Rs 1.5 lakh, the private institute’s was Rs 80 lakh. No mismatch for any professional course is more glaring than this. Not to say of specialist/super-specialist courses, where the mismatch is equally humongous. 

Transfer to the pension establishment earlier than their counterparts paid from the same kitty is an irreparable loss of government spends for making them graduates/specialists/super-specialists; it tantamount to lateral brain drain of precious taxpayers’ human resources. Walk into corporate hospitals and you’ll likely bump into former AFMS doctors remunerated far higher than what they received in government. Public’s loss is corporate gain, feeding the latter’s billowing profit off taxpayers’ money. 

I recall the lack of appreciation of AFMS doctors’ role even inside MoD conveyed in a letter from Rear Admiral A. A. Pawar, then Commandant, INHS Asvini, Mumbai. This was in 2015 when I was the Controller General of Defence Accounts. The new delegation of power had caused serious disquiet. His tone was one of exasperated injured pride. It was late evening when I read this letter. As a cancer survivor who had spent months in hospitals undergoing surgery after surgeries and associated treatments over an excruciating five-year period, I was scorched. I put myself in the patient’s shoes, visualising his pain and despair, and the rooted helplessness of treating doctors. I’m happy we rid these anomalies in the revised delegation of financial powers, 2016. Today’s issue too has the same ring of similarity: the lack of appreciation of AFMS doctors’ role, typecasting them under the armed forces overarching canopy and their cachet of regimentation. It’s time for course correction. 

The Services must appreciate the changedand ever-changingdynamics of the specialised world we live in today, and introspect to change their perception; and the MoD must mull over the issue in a holistic vein and actto stanch soundless, even relentless, haemorrhaging of rich human resource for the wellness of the armed forces and veterans who look up to the AFMS for medical succour.

(The writer is former Controller General of Defence Accounts and former Financial Advisor to Defence Services in the MoD. Views are strictly personal.)

(Reproduced from Millennium Post)

Sunday, August 6, 2017

When Differential Approach and Differentiated Treatment Converge!


The allegation against Justice Dipak Misra for illegally acquiring lease of land meant for the landless poor through “misrepresentation” and “fraud” has shocked the nation. One fervently hopes that this doesn’t join the endless saga of corruption, but instead acts as a shining beacon of hope that such misdemeanor and fraud shall no more be tolerated in India.

Let me begin with a Whatsapp forward I’ve received recently titled A New Zealander’s view on reason for corruption in India: (Incidentally, New Zealand is one of the least corrupt nations in the world and there are plenty things for us to emulate.)
Indians are Hobbesian (Culture of self interest). Corruption in India is a cultural aspect. Indians seem to think nothing peculiar about corruption. It is everywhere. Indians tolerate corrupt individuals rather than correct them.
To know why Indians are corrupt, look at their patterns and practices.
Firstly: Religion is transactional in India. Indians give God cash and anticipate an out-of-turn reward. Such a plea acknowledges that favours are needed for the undeserving. In the world outside the temple walls, such a transaction is named “bribe”. A wealthy Indian gives not cash to temples, but gold crowns and such baubles. His gifts cannot feed the poor. His pay-off is for God. He thinks it will be wasted if it goes to a needy man. Indians believe that if God accepts money for his favours, then nothing is wrong in doing the same thing. This is why Indians are so easily corruptible. Indian culture accommodates such transaction.
Morally, there is no real stigma. An utterly corrupt Jayalalita can make a comeback, just unthinkable in the West.
Secondly: Indian moral ambiguity towards corruption is visible in its history. Indian history tells of the capture of cities and kingdoms after guards were paid off to open the gates, and commanders paid off to surrender. This is unique to India. Indians’ corrupt nature has meant limited warfare on the subcontinent. It is striking how little Indians have actually fought compared to ancient Greece and modern Europe. The Turk’s battles with Nadir Shah were vicious and fought to the finish. In India fighting wasn’t needed, bribing was enough to see off armies. Any invader willing to spend cash could brush aside India’s kings, no matter how many tens of thousands soldiers were in their infantry. Little resistance was given by the Indians at the “Battle” of Plassey. Clive paid off Mir Jaffar and all of Bengal folded to an army of 3,000. There was always a financial exchange to taking Indian forts. Golconda was captured in 1687 after the secret back door was left open. Mughals vanquished Marathas and Rajputs with nothing but bribes. The Raja of Srinagar gave up Dara Shikoh’s son Sulaiman to Aurangzeb after receiving a bribe. There are many cases where Indians participated on a large scale in treason due to bribery.
Question is: Why Indians have a transactional culture while other ‘civilized’ nations don’t?
Thirdly: Indians do not believe in the theory that they all can rise if each of them behaves morally, because that is not the message of their faith. Their caste system separates them. They don’t believe that all men are equal. This resulted in their division and migration to other religions. Many Hindus started their own faith like Sikh, Jain, Buddha and many converted to Christianity and Islam. The result is that Indians don’t trust one another. There are no Indians in India, there are Hindus, Christians, Muslims and what not. Indians forget that 1400 years ago they all belonged to one faith. This division evolved an unhealthy culture. The inequality has resulted in a corrupt society, in India everyone is thus against everyone else, except God and even he must be bribed.
See the recent issue concerning appointment of the new CJI through the prism of these observations and ask if Differential Approach and Differentiated Treatment aren’t emblematic of all problems concerning our country today. Does it not vindicate the foreigner’s observation that Indians don’t believe that all men are equal? And hasn’t this inequality resulted in a corrupt society in India where everyone is against everyone else, except God and even he must be bribed? Why should one organ of democracy be accorded separate and special treatment? Any overriding justifications? Doubtless none. Differential Approach for judges of the High/Supreme Court, as senior advocate Shanti Bhushan says, owes its origin to the Supreme Court, which while violating the statutory provision in the CrPC gave “direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”
In effect, it upholds one of the two things: either all members of the higher judiciary were/are squeaky clean or there have been cases deserving of filing of FIRs but the CJI didn’t accord his approval. “Quis custodiet ipsos custodes? Or in English: “Who will guard the guards themselves?” The guards themselves? Doesn’t it then give rise to institutional conflict of interest? Does it resemble elements of any modern democratic state based on cardinal principles of separation of power and checks and balances and believes in equality and rule of law?
“The filing of that affidavit by Justice Misra is… a very serious matter” and cries out for an answer. This brings me to my next paradigm that is a besetting narrative of India: Did any Differentiated Treatment spawned off nepotism and venality brooking no rules or unassailable principles for privileged people — well-heeled, well-oiled, and well-connected, well-networked — kick in when antecedent verification and police reports were done before his elevation to the High Court bench? I guess the same check too must have been exercised prior to his elevation as Chief Justice of a High Court and then the Supreme Court. How serious offence of “misrepresentation of facts” and “fraud” detected and indicted upon that led to cancellation of land allotment was overlooked not once but many times over, when the offence antedated every stage of police check? These are disturbing issues for our society and our governance apparatus. They speak volumes of our loose and porous governance ecosystem. Not to speak of the nepotistic spread and sway it commands like a potentate that sadly has reduced public service into one of private service and private interest. The lack of an arm’s length system and culture surely has helped such aberrations.
While it may be presumptuous on my part to draw inferences here in the case of Justice Misra, the ineluctable question that crops up and needs answering is this: How could a person, who, as per information available in public domain, made a false statement in a declaration, “which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine” could be appointed as a High Court judge? What sort of antecedent check was carried out by the earlier collegiums and by the then government through their statutory investigating agencies when the CBI had recorded its conclusive findings against Justice Misra and the case had attained finality by nullifying allotment of the land leased to him? Of relevance here is the fact that in the recent past, the present government has rightly refused to agree with the recommendations of the SC collegium based on adverse intelligence reports against few of the names proposed by the latter. There obviously cannot be different standards and approaches. Now that adverse information against Justice Misra have come to light and put out in the public domain, the government must take note of these facts and information, and “right” the string of glaring past “wrongs” of (i) blatant shrouding of facts and details post-cancellation of land leased to Justice Misra; (ii) willful non-cognizance of information available on government records/documents against Justice Misra; and (iii) letting a “wrong” getting perpetuated time and time again over the past two decades and more. Agreeing with the CJI’s recommendation on the part of the present government will sadly tantamount to perpetuating the past “wrongs” with yet another egregious “wrong” added to it — only made worse many times over, in the wake of adverse information against the concerned judge already available and assiduously debated about in the public sphere. That will be extremely unfortunate and it shall obscure a chronic malaise that may be timelier to smother now than we would like to think.
The saga of Justice Misra career progression despite grievous wrongs amounting to fraud makes for a perfect case-study in law schools in India and abroad. It is now for the government and the Prime Minister to pluck the high-hanging fruit to “right” the “wrongs” committed thus far for institutions to emulate, so that the fear of an overarching check and balance architecture that’s inviolate bounces across the nation vociferously and unequivocally. Let me wind down by quoting the words of wisdom of Justice (as he then was) Khehar from the NJAC judgment: “The judiciary has to be manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour.” In his action the CJI may not have lived up to his own words, but as citizens we cannot but emphasize that people of unimpeachable integrity must man the judiciary and without a shadow of doubt the man who helms it — the Chief Justice of India.
(Reproduced from medium.com)

Friday, August 4, 2017

Land and Property as Distillate of Human Conscience




How much land does a man need? Leo Tolstoy’s story of human avarice written more than 131 years ago in 1886 comes back to one’s mind now. Six feet from his head to his heels was all he needed! Yes, that was exactly the area that Pahom’s servant dug to make a grave for him, as he lay on the hillock dead, blood spouting from his mouth out of sheer exhaustion in trying to acquire as much land as he could before the sun dipped into the horizon. It was our first year in Ravenshaw College in Cuttack we read this, a story told so unobtrusively in sibilant tone, yet said with such unmistakable telling effect that it remains a tinnitus in my head, conveying a universal message: love and greed for land — add buildings/apartments for good measure — have been man’s nemesis, and, I’m afraid, shall always remain that way. That’s human greed — emblematic of man’s epicurean self.
Travel no further back than 2010–11 and recall the Adarsh land scam details. How a housing society meant for Kargil war widows in Colaba, Mumbai was shamelessly appropriated by influential people — politicians, senior armed forces officials and bureaucrats! The Comptroller and Auditor General of India(CAG) in its Report had remarked that “The episode of Adarsh Co-operative Housing Society reveals how a group of select officials, placed in key posts, could subvert rules and regulations in order to grab prime government land — a public property — for personal benefit.” Ashok Chavan, the then Maharashtra chief minister lost his job, some bureaucrats were suspended and jailed for a few months, few service officers were charge-sheeted and proceeded against, but despite all the hullaballoo, the memory and lesson learnt from the scam (as with other scams) has fast faded away from public memory.
Around the same time, recall the events that were brewing around Justice Dinakaran’s case when he almost made it to the Supreme Court. The Chennai-based Forum for Judicial Accountability, in September 2009 had raised its voice against the then Chief Justice Dinakaran of Madras High Court. The issue again was illegal acquisition of land and it remained on the boil for good two years before he finally resigned from the post of chief justice of Sikkim high court on 29 July 2011 after the Chairman of the Rajya Sabha had admitted a motion for his removal. Interestingly, it was only after this that the Supreme Court collegium dropped Justice Dinakaran’s name for elevation.
Little before it was the turn of another judge of Calcutta High Court, Justice Soumitra Sen who quit when he found an impeachment motion staring him in his face. As a court-appointed receiver, he had kept the amount of about Rs 33 lakh in his personal account. With the benefit of hindsight, one can say that Justice Soumitra Sen’s act, unacceptable and unbecoming, was far less serious than what has now come to light concerning Justice Dipak Misra.
Let me briefly recapitulate Justice Misra’s case that dates back to 1979 when he was an advocate in the Orissa High Court. In order to provide succour to the poor and landless, the government of Orissa had come out with a policy of leasing land to them based on certain criteria. In the government notification, a landless person was defined as “…one who and his family members do not hold land more than two acres and who have no profitable means of livelihood other than agriculture…” To make himself eligible as a recipient for the leased land meant for the landless, Justice Dipak Misra in his affidavit tried subverting the rule to subserve his personal interest by testifying that: “…the extent of landed property held by me including all the members of my family is nil.” This Nil landed property was later found to be false; he had in another affidavit to the government of Orissa had sworn that his family owned 10 acres of land. Consequently, the lease granted for a “fodder farm” as reported, was cancelled on February 11, 1985, in proceedings under the Orissa Government Land Settlement Act, 1962 with the additional district magistrate of Cuttack indicting unequivocally that “…I am satisfied that the lessee has obtained lease by misrepresentation and fraud.”
This indeed is serious indictment — because the intent to mislead and circumvent the rule is unmistakable, as can be seen from the CBI’s closure Report of May 30, 2013. Shanti Bhushan, senior advocate and former union law minister, is forthright in his observations: “A false statement made in declaration, which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine. The filing of that affidavit by Justice Misra is thus a very serious matter.” Despite all this, how he was considered for a judgeship where police verification and antecedent checks are crucial and mandatory speaks volumes of the system we have in place.
Against this background, it would be clear that it was imperative for the CJI to set up an in-house inquiry committee to investigate the case for, paradoxical as it may sound, this is where we enter into an exclusive and sequestered territory. The Supreme Court has directed in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the CJI. In a case as egregious as this, with the CJI not instituting an in-house inquiry and instead recommending him as his successor, coupled with no limitations placed by the Constitution (or any SC judgments) or the Memorandum of Procedures, it’ll naturally be incumbent upon the elected sovereign government to set things right to ensure judicial rectitude, as enjoined upon in the Constitution and its values, which they have been sworn to uphold.
Perhaps it is all the more imperative — and let me say this in parenthesis — because should one look at the issue of false affidavit through a psychologist’s eyes, one will discern that the tendency to mislead with the intent to circumvent the rule/procedures to make personal gains is doubtless a part of a person’s DNA and make-up that shall refuse to go away and always stay with him, surfacing as and when opportunities present themselves. Land and property are indeed the distillate of human conscience. Human beings by nature are obsessive, possessive individualists. The lack of transparency and professionalism in India, coupled with the age-old Indian tradition of promoting sub-national/clan/family loyalty — the sub-culture of biradiri in the larger template of the culture of materialism that’s gotten more pronounced with economic liberalization in today’s globalized world to get-rich-fast — have sadly distorted our priorities. Ethics is at the heart of the issue, more for a judge, still more for a Supreme Court judge — and doubtless many times over for the CJI. Ethics and morality are attributes that can neither be compromised nor wished away in public service, as the Supreme Court itself had rightly observed in the Second Judges case (1993) that “…persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry.”
Must then the President, and the council of ministers headed by the Prime Minister to aid and advise him, not scrupulously follow the extant SC order in the Second Judges case (1993) and ensure that the Supreme Court lives up to its own judgment so that its image of being unimpeachably fair and transparent shines through as a exemplar for other democratic institutions in the country to emulate?
(Reproduced from medium.com)

Monday, July 31, 2017

An Open Letter to the Prime Minister of India: Let Transparency and Openness Prevail

Image result for transparency and justice

Respected and Hon’ble Prime Minister,

Let me at the outset most humbly say that there is nothing personal and ad hominem about the issue raised in this letter. Also a DISCLOSURE upfront: I know none of the eminent people referred here; neither have I ever met – even seen – them, personally or in a gathering – social or official or in the courtroom. The issue discussed concerns institutional integrity and rectitude of a revered institution as the Supreme Court of India that we citizens of this country look up to and repose boundless faith in to uphold public ethics and the rule of law. Hence this open letter.

I must admit it is with a sense of great disquiet and dismay that I write to you, consequent to the CJI Justice J.S. Khehar’s recommendation of Justice Dipak Misra’s name as his successor. It is both surprising and intriguing, because as has been reported in the media, there is an ongoing case against Justice Misra for fraudulently and through misrepresentation of facts acquiring land in 1979 when he was an advocate. The DNA newspaper only a few days ago on July 17, 2017 had broken this news on its front page and reported that “A three-member committee of judges, constituted by the Supreme Court to conduct an in-house inquiry against two sitting judges of the Orissa High Court, has halted its proceedings after the name of a senior Supreme Court Justice cropped up during the course of the probe,” and that “The panel, headed by Punjab and Haryana High Court Chief Justice SJ Vazifdar, has now written to the Chief Justice of India for guidance and directions.” Soon thereafter the news was picked up by other newspapers and magazines.

The charges violate the high judicial ethics and values that judges are expected to follow. Shortly after the CJI had sent his recommendation to the government, the CatchNews reported that there is a “Cloud over Dipak Misra as Chief Justice: ICJ claims he is tainted” and “there is a roadblock that must first be passed before such an appointment is made… The obstacle in Misra's path is the International Council of Jurists (ICJ), which has sought a probe against alleged irregularities during his career. ICJ also plans to approach the Centre to oppose his appointment. ICJ had submitted a petition urging Justice Khehar to appoint an in-house committee consisting of Supreme Court judges to look into allegations of Justice Misra’s alleged involvement in a land scam in Orissa while he was an advocate.” The news portal The Wire has also in an article titled Old Land Allotment Case Casts Shadow on Justice Dipak Misra’s Nomination as CJI” published on July 31, 2017, brought out the facts of this case.

It is not for me to go into the details of the alleged land scam involving illegal transfer of large tracts of government land which Justice Misra is alleged to have acquired with false declarations. Nor the CBI report placed before the Orissa High Court which allegedly had indicted him for “fraudulently” acquiring the plot of land in Cuttack. Nor the fact that, as alleged, he wrongly held on to the land till 2013, even after his elevation to the Supreme Court and even after the CBI had indicted him, and only “quickly gave up the possession of the land to save himself.”

What’s troubling is that the Supreme Court as an institution seems to be following different standards in matters of appointment – one for the oligarchy of the robes, and one for all other institutions. Let me elaborate. In March 2011, a Bench headed by the then Chief Justice S.H. Kapadia and two other judges set aside the appointment of P.J. Thomas as CVC on the ground that “eligible persons should be without any blemish whatsoever and they should not be appointed merely because they were eligible to be considered for the post.” This was despite the fact that Thomas had been appointed as per recommendation of a high power committee (HPC) of three, headed by then Prime Minister Manmohan Singh. Justice Kapadia, who wrote the judgment, held the HPC's decision invalid and the Supreme Court had also inter alia directed that:

i.     All… persons empanelled should be outstanding… persons of impeccable integrity.

ii.        The empanelment should be… on the basis of rational criteria, which has to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

iii.     The empanelling authority, while forwarding the names of the empanelled …persons, should enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant material should be withheld from the Selection Committee.

iv.    The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

The Court had further observed that it was concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity was also held to be an important quality. It reiterated that the independence and impartiality of the institution like CVC which had to be maintained and preserved in larger interest of the rule of law [Vineet Narain case].

The decision of the Supreme Court to inject transparency in appointment to high public offices was indeed praiseworthy. The conditions it laid down for empanelment too was unimpeachable and beyond reproach. Those were for a statutory post of CVC. Here though the concern is for the constitutional high office of Chief Justice of India. If CVC is an extremely important office for monitoring propriety in public office, the office of the CJI, encompassing as it does today almost all aspects of citizens’ life, is an office like no other. Interestingly, the Constitution is silent on the processes to be followed in appointment of the CJI. Conventionally though the retiring CJI recommends the name of the senior-most judge for appointment by the President of India as his successor. This too has been incorporated in the Memorandum of Procedure – all the more reason why the SC’s directions in the CVC appointment case becomes binding on the CJI.

Today, “We, the people of India…” look up to the Supreme Court with awe and respect. This unqualified and abiding faith puts an onus on the Supreme Court as an institution and especially on the CJI as a person holding this high office. Given this backdrop, one wonders if the CJI has followed the spirit and directions of this very august court he helms today, in recommending the name of his successor to the government. This assails a citizen’s mind today, as brought out below.

i.         In the light of the DNA’s news of July 17, 2017 about the Supreme Court-appointed 3-member in-house panel headed by Chief Justice Vazifdar seeking the CJI’s guidance, how has the CJI established that all the above conditions have been fulfilled?

ii.      Placing reliance on non-availability of information in the public domain, about directions provided to the in-house panel headed by Punjab and Haryana High Court Chief Justice Vazifdar and more importantly even before the issue concerning Justice Misra has been probed by a Supreme Court committee and found to be without any basis, doesn’t the CJI’s recommendation become non-est in law, as the bench of Chief Justice Kapadia had held in the case of appointment of P.J. Thomas as CVC? Ironically, the power to grant permission to proceed against any judge of the Supreme Court/High Court lies on the CJI. Recall how the Supreme Court has dealt with the statutory provision in the CrPC, which while making corruption a cognizable offence requires that whenever an FIR is filed, it is the statutory duty of the police to investigate the offence, collect evidence against the accused, and charge-sheet him in a competent court and, if found guilty, deal with it appropriately. To recall Shanti Bhushan, the respected senior advocate’s words: “The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgment in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgment.” This is closeted and “cloistered justice” at its very best that is not open to “suffer the scrutiny and outspoken comments of ordinary men” and institutions. That’s the nub of the problem.

iii.    Since the issue raised by Justice Vazifdar panel seeking guidance hasn’t been addressed yet by the CJI, does the latter’s recommendation of his successor’s name not tantamount, by implication, to brush aside the concerns expressed by the panel, and bringing a closure to the case? Sadly his action echoes the concerns articulated by Shanti Bhushan, who in his 2010 affidavit had publicly stated that out of the last 16 Chief Justices of India, eight of them were definitely corrupt: “…that the judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realize that this policy has played a big role in increasing judicial corruption.” Are we institutionalizing this practice?

iv.      How has the Supreme Court’s prescription in their 2011 CVC judgment with regard to institutional integrity and institutional competence and functioning, apart from personal integrity, been addressed? This too is unclear and hence very disturbing.

v.       While it will be presumptuous on one’s part to second guess the content of his letter recommending his successor, one can safely conclude that the CJI hasn’t yet set up any in-house enquiry committee to examine the issues. Nor has he possibly given any direction to the Justice Vazifdar panel. Must we then, in the absence of information available in public domain, conclude that there are two standards for appointments to high public offices in vogue: one for the judiciary, the other for other institutions? If it’s so, isn’t that unfair and inequitable?

vi.    My mind, disquiet and far from stilled, travels back to Justice C.K. Prasad’s judgment, which in 2014 had created a nationwide controversy. As reported, he pulled out the 35-hectare Cidco prime land allotment case of public land originally listed before a three-judge SC bench, and on an oral plea, decided within a couple of minutes a 12-year-long battle, at a throwaway price of Rs 33 crore in favour of the winning bidder. The market value of the 35-hectare land was said to be about 100 times more – so glaring was the case that it prompted senior lawyer Dushyant Dave to question the bench's judicial propriety. It is this aspect of institutional integrity that Justice Kapadia had laid emphasis on in his March 3, 2011 CVC judgment. The CJI is much more than the primus inter pares vis-a-vis other SC judges. He exercises administrative powers, assigns cases to other SC judges and thus plays an extremely important role in the nation’s judicial life.

Now, it’s for you, Hon’ble Prime Minister, as the head of the government, to act and do the appropriate course correction. Para 2 of the Memorandum of Procedure amply makes it clear that it is for the government to decide and own responsibility for the CJI’s appointment. Let Transparency and Openness prevail in public governance. We fervently hope you will ensure that.

With kind regards,

Yours sincerely,

Sudhansu Mohanty

(Reproduced from medium.com)