Central Vigilance Commission Administrative Law
â€˘ Table Of Cases 1. K.Veeraswami v. Union of India, (1991)3 SCC 655. 2. Nagraj Shiva Rao Karjagi v. Syndicate Bank, Manipal, (1991)3 SCC 219. 3. State of Bihar v. J.A.C Saldanah, (1980)1 SCC 554. 4. Sunil Kumar v. State of West Bengal, AIR 1980 SC 1170. 5. V.D Trivedi v. Union of India, AIR 1993 SC 464. 6. Vineet Narain v. Union of India, (1996)2 SCC 199. 7. Vineet Narain v. Union of India, (1998)1 SCC 226. 8. Waris Rashid Kidwai v. Union of India, AIR 1998 Delhi 31.
Central Vigilance Commission Administrative Law
â€˘ Table Of Statutes 1. Benami Transaction Prohibition Act, 1988. 2. Constitution of India, 1950. 3. Delhi Special Police Establishment Act, 1946. 4. Indian Penal Code, 1860. 5. Prevention of Corruption Act, 1988.
Central Vigilance Commission Administrative Law
• Introduction “We, the public servants of India, do hereby solemnly pledge that we shall continuously strive to bring about integrity and transparency in all spheres of our activities. We also pledge that we shall work unstintingly for eradication of corruption in all spheres of life. We shall remain vigilant and work towards the growth and reputation of our organization. Through our collective efforts, we shall bring pride to our organization and provide valuebased service to our countrymen. We shall do our duty conscientiously and act without fear or favour” 1 If every public servant adhered to this pledge then corruption would be non-existent and an alien concept. Unfortunately this is not utopia and corruption is a sad reality of life. It is a menace to society. Corruption in administration distorts the decision-making process and leads to all kinds of vices. Public Interest requires incorruptibility in the administration of government departments. The serious concern expressed by Members of Parliament in the Parliamentary debate in June, 1962 on “Growing Menace of Corruption in Administration” led to the formation of a Committee on Prevention of Corruption, popularly known as Santhanam Committee, to review the problem and make suggestions. Expressing its views on the menace of Corruption in India the Santhanam Committee said: “It was represented to us that corruption has increased to such an extent that people have started losing faith in the integrity of public administration. We heard from all sides that corruption has, in recent years, spread even to those levels of administration from which it was conspicuously absent in the past. We wish we could confidently and without reservation assert that at the political level, Ministers, legislators and party officials were free from this malady. The general impressions are unfair and exaggerated. But the very fact that such impressions are there causes damage to the social fabric. That such impressions should have come into existence in so short a time after the people of this country had given themselves a Constitution of their own is all the more distressing if it is remembered that the struggle for freedom in India was fought on a particularly high moral plane and was led by Mahatma Gandhi who personified integrity. The people of 1
Pledge to be taken every year by all public servants at the commencement of the Vigilance Awareness Week on Sardar Vallabhbhai Patel’s Birthday on October 31.
Central Vigilance Commission Administrative Law
India, rightly expected that, when the governance of the country passed into the hands of the disciples of the Father of the Nation who were in their own individual capacities known for high character and ability, governments in India, at the Centre and the States would set up and achieve a standard of integrity, second to none in the world, both in the political and administrative aspects. It has to be frankly admitted that this hope has not been realized in full measure. But it has to be noted that a good percentage of our public servants, even those who have opportunities, maintain and function in accordance with, strict standards of integrity. We have to base the efforts for a thorough cleansing of our public life, on this solid and hard core of honest public servants. It will be our endeavour in this report to strengthen their hands, to deal drastically with all those who have come to believe that they can corrupt and be corrupt with impunity.â€?2 Among other things, the Santhanam Committee noticed the conspicuous absence of a dynamic integration between the vigilance units in various Ministries and the Administrative Vigilance Division in the Ministry of Home Affairs. The Committee also raised an important issue that the Administration could not be a judge of its own conduct. The Central Vigilance Commission, was, therefore, conceptualized as an apex body for exercising general superintendence and control over vigilance matters in administration under Government of India Resolution dated 11th February, 1964. The establishment of the Central Vigilance Commission was considered essential for evolving and applying common standards in deciding cases involving lack of probity and integrity in Administration.
Committee on Prevention of Corruption, 1962 (New Delhi: Government of India- Ministry of Home Affairs, 1964).
Central Vigilance Commission Administrative Law
• Research Methodology Aims and Objectives The aim of this project is to perform a comprehensive study of the Central Vigilance Commission. The project aims at studying the role, status, jurisdiction, organizational framework and powers and functions of the CVC. It is also the objective of this project to analyse the problems faced by the CVC in its working and what steps the CVC has taken to overcome these problems. Another aim which this project has is to analyse the landmark decision of the Supreme Court in Vineet Narain’s case and analyse how this decision has affected the CVC and the prevention of corruption in public administration.
Nature of Project The project is analytical as well as descriptive in nature. However the majority of the project is analytical in nature.
Sources of Data The sources of data used are both primary as well as secondary in nature. Case reporters like the All India Reporter and the Supreme Court Cases have been used. A host of leading textbooks on Administrative Law have been referred to. Reports and websites have also been used.
Scope and Limitation The scope of this project is limited to the structure and status of the CVC and a study of its advisory role, working and jurisdiction. The CVC has not been compared to its counterparts abroad.
Research Questions The Research Questions are:
How did the CVC originate and why was it set up?
What is the organizational framework of the CVC?
What is the jurisdiction of the CVC?
What are the powers and functions of the CVC?
What is the status and role of the CVC?
Central Vigilance Commission Administrative Law
How has the judiciary affected the CVC and the process of bringing about incorruptibility in public administration?
What are the problems faced by the CVC in its working?
How has the CVC tried to overcome these problems?
What steps has the CVC taken to ensure that it fulfills its objectives?
How far has the CVC been successful in fulfilling its objectives?
Mode of Citation A uniform mode of citation has been adopted throughout the course of this project.
Central Vigilance Commission Administrative Law
• CVC-Status, Role And Working The Central Vigilance Commission is attached to the Ministry of Home Affairs of the Government of India. Nevertheless it is independent in its functioning and has the same measure of independence and autonomy as the Union Public Service Commission. It is not subordinate to any Ministry and no order, direction or instruction can be issued by any Ministry so as to interfere with its independent operation. The Central Government of India has envisaged the status and functions of the Central Vigilance Commission to be as follows:3 “The Central Vigilance Commission shall have, in the sphere of vigilance, a status and role broadly corresponding to that of the Union Public Service Commission. It will have extensive functions designed to ensure that complaints of corruption or lack of integrity on the part of public servants are given prompt and effective attention, and that the offenders are brought to book without fear or favour. In the constitutional and legal sense, its functions are advisory. But in reality, they would be advisory in the same sense as those of the Union Public Service Commission. The combined effect of the independence of the CVC, the nature of its functions and the fact that its report would be placed before the Parliament, would be to make the CVC a powerful force for eradication of corruption in public services.” The Supreme Court case of Sunil Kumar v. State of West Bengal 4 illustrates the problems which arose in practice owing to the non-statutory status of the CVC. In this case an enquiry officer was appointed to enquire into certain charges against the appellant who was a member of the Indian Administrative Service. The enquiry officer submitted his report after enquiry giving his findings on various charges levelled against the appellant. The report was then sent to the Vigilance Commissioner for his advice. Thereafter, the disciplinary authority viz. the State Government, came to its own conclusions on the findings. The appellant was reduced from a higher to a lower salary in the same grade. He challenged the order inter alia on the ground that consultation with the Vigilance Commissioner who had no statutory status was unjustified. The Court overruled this objection and held that the disciplinary authority committed no serious or 3 4
Dr. J.J.R Upadhayaya, Administrative Law (Allahabad: Central Law Agency, 1999)at 381. AIR 1980 SC 1170.
Central Vigilance Commission Administrative Law
material irregularity in consulting the Vigilance Commissioner. However the Court observed that if the disciplinary authority had come to a conclusion and given its decision based on the advice of the Vigilance Commissioner who has no statutory status then its action would be unjustified and contrary to law. Thus in order to remove this confusion and to accord greater importance to the Vigilance Commissionerâ€™s advice which may be extremely important in deciding the case and imparting justice it was suggested that the CVC be given statutory status. Consequent upon the directions given by the Supreme Court of India in Vineet Narainâ€™ s case5 the Central Vigilance Commission was given statutory status through an Ordinance dated 25.08.1998, which was amended on 27.10.1998. Subsequently, in order to replace the Ordinance, the Government of India introduced the Central Vigilance Commission Bill, 1998 in the Lok Sabha on 7 th December, 1998. The Central Vigilance Commission Ordinance was also repromulgated on 8th January, 1999. The CVC bill was passed by the Lok Sabha on 15 th March, 1999 and was pending before the Rajya Sabha. Meanwhile, the CVC Ordinance, 1999 was to expire on 5 th April, 1999. Therefore, the Central Government resolved, on 4th April, 1999 that the Central Vigilance Commission constituted under the Ordinance would continue to discharge its duties and exercise its powers under the Resolution which shall come into operation immediately after the expiry of the Ordinance. The Government, once again, introduced the Central Vigilance Commission Bill, 1999 in the Lok Sabha on 20 th December, 1999, which has since been referred to a joint Committee of both Houses of Parliament. Thus, the CVC continues to discharge its functions under the Government of India Resolution dated 4th April, 1999 with effect from that date.6 The CVC acts as an apex body for rendering impartial and objective advice to the disciplinary and other authorities on vigilance matters and vigilance related cases, where a public servant is alleged to have acted for an improper purpose or in a corrupt manner in discharge of his official duties. The CVC, thus, mainly plays an advisory role. In itâ€™s functioning, the CVC is independent and, therefore, imparts an element of externality and objectivity in the decision making process of the administrative authorities in the matters relating to probity and integrity of public servants. Apart from impartiality and 5
(1998)1 SCC 226. Thirty sixth Annual Report of the Central Vigilance Commission, 1999 (New Delhi: Central Vigilance Commission, 2000)at 1. 6
Central Vigilance Commission Administrative Law
objectivity, the functioning of the CVC also ensures consistency and common standard of action for similar kinds of misconduct including criminal misconduct 7. However, all cases of misconduct are not required to be referred to the CVC for its advice; only those cases, having a definite or potential vigilance angle and an element of corruption and criminal misconduct or malafide are required to be referred to the CVC. Complaints constitute an important source of information leading to the exposure of misconduct and malpractices. Complaints received by the CVC are duly scrutinized and if they contain sufficient details to justify investigation, then they are referred to the Chief Vigilance Officers of the Departments concerned or to the Central Bureau of Investigation for investigation and report, depending upon the nature of allegations. The CVC had observed that a large number of complaints received were either anonymous or pseudonymous in nature. A peculiar feature of these complaints was that these were resorted to especially when a public servantâ€™s promotion was due or when an executive was likely to be called by the Public Enterprises Selection Board for interview for a post of Director etc. Such anonymous/pseudonymous complaints achieved the objective of delaying if not denying the promotions. The CVC also observed that such complaints demoralized many honest public servants. Thus the CVC issued instructions that no action should be taken on any anonymous or pseudonymous complaints and such complaints should just be filed.8 The complaints received by the departments/organizations are scrutinized by the concerned Chief Vigilance Officers to assess whether the allegations merit investigation. If the complaint pertains to a public servant, who falls within the normal advisory jurisdiction of the CVC and the administrative authorities decide to conduct a preliminary enquiry into the allegations, it is necessary for them to forward a preliminary enquiry report to the CVC for its advice on the further course of action to be taken, except in those cases where the administrative authorities had decided on their own to investigate the allegations contained in anonymous/pseudonymous complaints, and now after investigation propose to close the matter. The departments/organizations are also required to forward a preliminary investigation report, together with their views thereon, in respect of all complaints forwarded to them by the CVC for investigation and report. 7 8
C.K Thakker, Administrative Law (Lucknow: Eastern Book Company, 1996)at 214. Supra note 6 at 9.
Central Vigilance Commission 10 Administrative Law
In cases where the CBI had conducted preliminary investigation against the public servant, who falls within the normal advisory jurisdiction of the CVC, the concerned department is required to offer its specific comments on the recommendations made by the CBI for advice of the CVC. In respect of the cases involving the public servants, who are not within the normal advisory jurisdiction of the CVC, the matter is required to be referred to the CVC for its advice only if there is disagreement between the department and the CBI as regards the further course of action to be taken.9 The investigation reports furnished by the Chief Vigilance Officers or by the CBI are examined in the CVC. The CVC, depending upon the circumstances and facts of each case, advises initiation of criminal or departmental proceedings against the concerned public servant or issuance of administrative warning to him or the closure of the case. The CVC’s advice at this stage is termed as First Stage Advice.10 The departmental proceedings could be for imposition of a major penalty or a minor penalty. If the CVC advises initiation of departmental proceedings for major penalty, it also indicates whether the departmental inquiry is to be conducted by a Commissioner for Departmental Inquiries borne on the strength of the CVC or the department may appoint its own inquiry officer for the purpose. The enquiry report in either case, however, is furnished to the CVC for its Second Stage Advice before taking a final decision. The CVC also tenders second stage advice in those cases in which the departmental proceedings for minor penalty were initiated on the CVC’s advice and the concerned disciplinary authorities propose to close the case after examining the statement of defence.11 The CVC is also consulted at the appeal/review/revision stage in those cases in which the appellate/reviewing/revising authorities propose to modify or set aside the penalty imposed on a public servant, in consultation with the CVC. The only exception to this requirement is the case in which the administrative authority is required to consult the Union Public Service Commission. 12 9
Ibid at 9-10. L.M Bhatia, “Central Vigilance Commission- Its Role in Administrative Vigilance” Indian Journal of Public Administration, Vol. XVII, (1971)at 67. 11 Supra note 6 at 11. 12 Id. 10
Central Vigilance Commission 11 Administrative Law
The effectiveness of vigilance depends upon expeditious disposal of cases. Therefore, in consonance with the Principles of Natural Justice, the CVCâ€™s effort has been to ensure that the administrative authorities take prompt and expeditious action in investigating the complaints and taking a view on the alleged commission of misconduct by the concerned employee. The CVC has also been emphasizing that the departmental enquiries must be completed within a period of six months and that the CVCâ€™s advice should be implemented promptly.
Central Vigilance Commission 12 Administrative Law
• CVC- Organisation The Supreme Court of India in Vineet Narain’s case13 directed that the Central Vigilance Commission be accorded statutory status. In pursuance of this directive the Central vigilance Commission was accorded statutory status through an Ordinance dated 25 th August, 1998. The Ordinance envisaged the CVC to be a multi member Commission consisting of the Central Vigilance Commissioner (Chairman) and not more than four Vigilance Commissioners (VC) as its members. The appointments of the CVC and the VCs were to be made by the President by warrant under his hand and seal on the recommendations of a Committee consisting of the Prime Minister, the Minister of Home Affairs and the Leader of the Opposition in the Lok Sabha. The Government could make appointments against the posts of the Central Vigilance Commissioner and one Vigilance Commissioner through the above process, when the Ordinance expired. Presently the Commission is headed by Shri N. Vittal, Central Vigilance Commissioner with effect from 3rd September, 1998. Shri V.S Mathur was appointed as Vigilance Commissioner on 16th March, 1999. Since the Ordinance expired on 5 th April,1999, the Government had passed a resolution dated 4th April, 1999, which inter-alia, provided that the Central Vigilance Commissioner, other Vigilance Commissioners and officers and employees of the CVC under the Central Vigilance Commission Ordinance, 1999 shall continue to hold office as such on the same terms and conditions of their appointment as on date of the resolution. Thus the CVC presently consists of two members viz. the Central Vigilance Commissioner and the Vigilance Commisssioner.
CVC’s Staff The CVC is assisted by a Secretary, who is of the rank of Additional Secretary to the Government of India, two Additional Secretaries, who are of the rank of Joint Secretary to the Government of India, 10 officers of the rank of Directors/Deputy Secretaries, an Officer on Special Duty, four Under Secretaries and other staff. In addition there are fourteen officers designated as Commissioners for Departmental Inquiries (CDI) who are nominated to conduct departmental inquiries relating to major penalty proceedings on behalf of the disciplinary authorities in serious and important disciplinary cases.14
(1998)1 SCC 226. Supra note 6 at 6.
Central Vigilance Commission 13 Administrative Law
Technical Wing- Chief Technical Examinerâ€™s Organisation There is also a Technical Wing attached to the CVC with two Chief Technical Examiners of the rank of Chief Engineers, who are assisted by eight Technical Examiners of the rank of Executive Engineers, six Assistant Technical Examiners of the rank of Assistant Engineers and other subordinate staff.15
Staff Strength The group wise sanctioned staff and number of officers in position as on 31.12.99 was: 16 Sanctioned In Position
Group A 48 38
Group B 86 80
Group C 77 68
Group D 72 66
Total 283 252
Representation of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the CVC Appropriate representation in service of Scheduled Tribes/Scheduled Castes and Other Backward Classes is a declared policy of the Government. In pursuance of this policy, the CVC has been making every effort for implementing the relevant Government instructions in this regard in respect of Service/Posts under its administrative control. During 1999 two persons who were SC/ST/OBC were appointed in Group C and in Group D posts on direct recruitment basis. The percentage of Scheduled Castes/Scheduled Tribes/Other Backward Classes in the various group of posts filled/held otherwise than by deputation, in the CVC as on 31.12.1999 is as follows:
Group A 40%
Group B 22.22%
Group C 12.05%
Group D 50%
Tribes Other Backward Classes
Id. Id. 17 Supra note 6 at 7. 16
Central Vigilance Commission 14 Administrative Law
• CVC- Jurisdiction Though the advisory jurisdiction of the CVC extends to all organizations to which the executive control of the Union extends, however, for practical reasons, the CVC presently advises only on vigilance cases pertaining to the following categories of employees: Gazetted Central Government Officials Two levels below the Board level appointees in the Public sector Undertakings of the Central Government Officers of the rank of Scale III and above in the public sector banks Officers of the rank of Assistant Manager and above in the Insurance Sector Officers in autonomous bodies/local authorities or societies comparable in status to that of a Gazetted Central Government Officer. Nonetheless, the CVC retains its residuary powers to call for any individual case in respect of employees other than those who are within its normal jurisdiction.
CVC’s Jurisdiction in Terms of The Central Vigilance Commission Ordinance As per the CVC Ordinance, 1998 the CVC can undertake an inquiry or cause an inquiry or investigation to be made into any complaint against any official belonging to the following categories of officials wherein it is alleged that he has committed an offence under the Prevention Of Corruption Act, 1988 : Group A Officers of the Central Government Such level of officers of the corporations established by or under any Central Act, Government Companies, Societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification (Provided that till such time a notification is issued under this clause, all the officers of the said corporations, companies, societies and local authorities shall be the persons referred) in the Official Gazette, specify in this behalf.
Central Vigilance Commission 15 Administrative Law
Resolving Difference of Opinion between the CBI and the Administrative Authorities If there is a difference of opinion between the CBI and the concerned administrative authorities as regards the further course of action to be taken in respect of the employees, who are not within the normal jurisdiction of the CVC, the difference of opinion is resolved by the CVC by tendering appropriate advice.18
Restraints on the CVC’s Jurisdiction Under the authority of Government of India’s Resolution dated 11.02.1964, the CVC was empowered to undertake an inquiry into any transaction in which a public servant was suspected or alleged to have acted for an improper purpose or in a corrupt manner irrespective of his status. It was only through subsequent administrative instructions that the CVC’s jurisdiction was restricted to certain categories of employees for the purpose of its advice. Even in that situation the CVC could call for a report on any complaint of corruption, misconduct, lack of integrity, misdemeanour etc. against any public servant irrespective of his status. While the intention of the Supreme Court’s judgment in Vineet Narain’s case to accord statutory status to the CVC appears to strengthen the organization, the provision in the CVC Bill, restricting its jurisdiction to inquire into or cause an inquiry or investigation to be made in to the alleged commission of offences under the Prevention of Corruption Act and Code of Criminal Procedure, 1973 only, and that too against certain categories of employees, in fact, tantamounts to weakening its authority. Further the CVC has been given powers to exercise superintendence over the vigilance administration of various Ministries of the Central Governmnet, PSUs, societies, autonomous organizations etc. The restriction upon the CVC to call for suo moto reports on the complaints will only hamper it’s functioning. The Government of India should, therefore, reconsider their proposal and authorize the CVC to call for suo moto reports on complaints irrespective of the status of the official named therein. It was envisaged in the Government of India’s Resolution dated 11.02.1964 that the relevant rules under the All India Services Act would be amended in consultation with the State Governments in order to bring the Members of those Services under the purview of the CVC. However, even after 35 years of the CVC’s existence, the All India Services Officers, particularly the members of the IAS, IPS and the Indian Forest Service do not fall within the CVC’s jurisdiction if the alleged irregularities committed by them are 18
Dr. J.J.R Upadhayaya, Administrative Law (Allahabad: Central Law Agency, 1999)at 383.
Central Vigilance Commission 16 Administrative Law
connected with the affairs of the State Governments. Recent experience has shown that corruption at the State level flourishes owing to the collusion between the Members of the All India Services and the powers that be at the State level. If these officers are wholly brought within the purview of the CVC, there is likely to be some psychological check on corruption. The CVC has, therefore, suggested to the Government of India to make necessary amendments to the CVC bill before it is passed.19 The CVC now exists under the Government of Indiaâ€™s Resolution dated 04.04.1999. The said resolution, apart from not having the statutory backing, also limits the operation of the CVC inasmuch as it does not mention about the powers of the CVC to exercise superintendence over the functions of the CBI, appointments of the Chief Vigilance Officers being made in consultation with the CVC and writing of their Annual Confidential Reports (ACR). The CVC has pointed out these deficiencies to the Government of India for appropriate action.20
Thirty Sixth Annual Report of the Central Vigilance Commission, 1999 (New Delhi: Central Vigilance Commission, 2000)at 5. 20 Id.
Central Vigilance Commission 17 Administrative Law
â€˘ CVC-Powers And Functions Clause 24 of the Central Vigilance Commission Ordinance,1998 had provided that the CVC, set up by the resolution dated 11.02.1964 of the Government of India, shall continue to discharge the functions assigned to it insofar as its functions are not inconsistent with the provisions of the Ordinance. Therefore, the CVC continues to perform the functions assigned to it in terms of Government of Indiaâ€™s Resolution dated 11.02.1964, which are as follows:21 a) To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in which a public servant working in any organization, to which the executive control of the Government of India extends, is suspected or alleged to have acted for an improper purpose or in a corrupt manner. b) Tender independent and impartial advice to the disciplinary and other authorities in disciplinary cases having vigilance angle at different stages of investigation, inquiry, appeal, review etc. c) Conduct oral inquiries through its officers (Commissioners for Departmental Inquiries) in important disciplinary proceedings against the said public servants. d) Exercise a general check and supervision over vigilance and anti-corruption work in Ministries or Departments of the Government of India and other organizations to which the executive control of the Union extends. e) Initiate at such intervals, as it considers suitable, review of procedures and practices of administration insofar as they relate to maintenance of integrity in administration. f)
Scrutinize and approve proposals for appointment of Chief Vigilance Officers in various organizations and assess their work.
g) Conduct, through its organization of Chief Technical Examiners, independent technical examination mainly from vigilance angle, of construction and other related works undertaken by various Central Government organizations. h) Organise training courses for Chief Vigilance Officers and other vigilance functionaries in Central Government Organisations.
Central Vigilance Commission 18 Administrative Law
In addition to the functions mentioned above, the CVC was empowered under the Central Vigilance Commission Ordinance to:22 a) Exercise superintendence over the functioning of the Delhi Special Police Establishment (DPSE) insofar it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988. b) Review the progress of investigations conducted by the DPSE into offences alleged to have been committed under the Prevention of Corruption Act, 1988. c) Exercise the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, while inquiring or causing an inquiry or investigation to be made, into any complaint against a public servant, and in particular in respect of the following natters: i.
Summoning and enforcing the attendance of any person from any part of India and examining him on oath.
Requiring the discovery and production of any document.
Receiving evidence on affidavits.
Requisitioning any public record or copy thereof from any court or office.
Issuing Commissions for the examination of witnesses or documents.
Any other matter which may be prescribed.
d) Head the committees to make recommendations for the appointments to the posts of the Director, CBI and the Director of Enforcement.
Central Vigilance Commission 19 Administrative Law
• CVC- Views Of The Judiciary The decision of the Supreme Court of India in Vineet Narain v. Union of India 23 is a slandmark judgment and is of immense significance to the study of the Central Vigilance Commission and prevention of corruption in public administration. The facts of Vineet Narain’s case24 are as follows: On 25th March, 1991 Ashfaq Hussain Lone, alleged to be an official of the terrorist organization Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation raids were conducted by the CBI on the premises of Surender Kumar Jain, his brothers, relatives and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two notebooks from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high-ranking politicians, in power and out of power, and of high-ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, writ petitions were filed on 4 th October, 1993, in public interest under Article 32 of the Constitution of India. The gist of the allegations in the writ petitions was that government agencies like the CBI and the Revenue authorities had failed to perform their duties and legal obligations in as much they had failed to investigate matters arising out of the seizure of the ‘Jain Diaries’; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through ‘Havala’ transactions; that this had also disclosed a nexus between, politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful considerations that the CBI and other government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed an offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every 23 24
(1998)1 SCC 226. Id.
Central Vigilance Commission 20 Administrative Law
person involved, irrespective of where he was placed in the political hierarchy. The writ petitions prayed inter alia for the following reliefs: That the offences mentioned in the petition are duly investigated in accordance with law by officers appointed by the Supreme Court in whose integrity, independence and competence the Court has confidence for conducting and/or supervising such investigation. That the Supreme Court gives suitable directions and orders to ensure that the culprits are dealt with according with law. That suitable directions are given by the Supreme Court in order to prevent such evil actions on the part of investigating agencies and their political superiors from being repeated in the future. The judgment of the Court was delivered by Chief Justice Verma. Highlighting the importance of the case Chief Justice Verma stated that “this case has generated awareness of the need of probity in public life and provided a mode of enforcement of accountability in public life…..the proceedings in this matter have had great educative value and it does appear that it has helped in future decision-making and functioning of the public authorities.” In Vineet Narain’s case the Supreme Court discussed the issue of the Single Directive and held that it was unconstitutional and struck it down. The Single Directive25 is a consolidated set of instructions issued to the CBI by the various Ministries/Departments regarding the prior sanction of the designated authority to initiate investigation against officers of the Government, public sector undertakings and nationalized banks, above a certain level. In the Government of India it is at the level of the Joint Secretary. This Directive was first issued in 1969 and thereafter amended on several occasions. The Single Directive, in its application is limited to officials at decision making levels in the Government and certain other public institutions like the RBI, SEBI, nationalized banks etc. and its scope is limited to official acts. The stated objective of the Directive is to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations. It is said that such protection to officers at the decision making level is essential to protect them and to relieve them of the anxiety from the 25
Vineet Narain v. Union of India, (1998)1 SCC 226.
Central Vigilance Commission 21 Administrative Law
likelihood of harassment for taking honest decisions. It was also stated that absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations. It was made clear that the Directive does not extend to any extraneous or non-official acts of the government functionaries and a time frame has been prescribed for grant of sanction in such cases to prevent any avoidable delay. Reliance was placed by the Learned Attorney General on the decisions in K.Veeraswami v. Union of India26 and in State of Bihar v. J.A.C Saldanah27 to support the argument of legality of the Single Directive. The decision in J.A.C. Saldanha28 is on Section 3 of the Police Act, 1861 and deals with the ambit and scope of State Government’s power of ‘superintendence’ thereunder. It was held in J.A.C. Saldanha29 that the power of superintendence of the State Government includes its power to direct further investigation under Section 173(8) Cr. P.C. That was a case in which there was occasion to require further investigation because of the unsatisfactory nature of the investigation done earlier of a cognizable offence. Thus, in that case the power of superintendence was exercised for directing further investigation to complete an unsatisfactory investigation of a congnizable offence to promote the cause of justice and not to subvert it by preventing investigation. The Court held that, in the present context, that decision has no application to support the issuance of the Single Directive in exercise of the power of superintendence, since the effect of the Single Directive might thwart investigation of a cognizable offence and not to promote the cause of justice by directing further investigation leading to a prosecution. The other decisions of this Court is in K. Veeraswami.30 That was a decision in which the majority held that the Prevention of Corruption Act applies even to the Judges of the High Court and the Supreme Court. After taking that view, it was said by the majority that in order to protect the independence of judiciary, it was essential that no criminal case 26
(1991)3 SCC 655. (1980)1 SCC 554. 28 Id. 29 Id. 30 Supra note 26. 27
Central Vigilance Commission 22 Administrative Law
shall be registered under Section 154 Cr. P.C. against a Judge of the High Court or of the Supreme Court unless the Chief Justice of India is consulted and he assents to such an action being taken. The learned Attorney General contended that this decision is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the concerned officer from harassment caused by a malicious or vexatious prosecution. The Court was unable to accept this submission. The position of Judges of High Courts and Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K.Veeraswami.31 In strict terms the Prevention of Corruption Act, 1988 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. The Court held that the decision in K.Veeraswami (Supra) has no application to the wide proposition advanced by the learned Attorney General to support the Single Directive. For the same reason the Court declared that reliance on that decision by the IRC to uphold the Single Directive is misplaced. The Court then went into the question whether the Single Directive could be upheld without the aid of the decisions in K.Veeraswami and J.A.C Saldanah’s case. To answer this question the Court went into the meaning of the word “superintendence” in Section 4(1) of the Delhi Special Police Establishment Act, 1946. In this context the Court stated 32 that the law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as "decision – making officers". The question is 31 32
(1991)3 SCC 655. Vineet Narain v. Union of India, (1998)1 SCC 226.
Central Vigilance Commission 23 Administrative Law
whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused. Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be draen dependent on the decision-making process, there is no rational basis to classify them differently. In other words, if the accusation be bribery which is supported by direct evidence of acceptance of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. It is for this reason that it was conceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. It is clear that the accusation of possession of disproportionate assets by the person is also based on direct evidence and no factor pertaining to the expertise of decision â€“making is involved therein. The Court, therefore, had no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap case, and of possession of disproportionate assets being covered by the Single Directive. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision-maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at that level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision- making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the police force does not have the expertise within its fold for the formation of the requisite opinion in such case, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid
Central Vigilance Commission 24 Administrative Law
of that advice and not that of anyone else. It would be more appropriate to have such a body within the infrastructure of the CBI itself. In light of this discussion the Supreme Court held that the Single Directive could not be upheld as valid and declared it unconstitutional.33 The rationale of the Supreme Court Judgment for holding the Single Directive as unconstitutional is very strong. Unfortunately in spite of the clear reasoning of the Supreme Court in for declaring the Single Directive to be invalid, the Single Directive either in the form of a directive or de facto practice prevails in practically all states. The Supreme Court judgment does not apply to the states. In the interest of probity in administration, it is necessary that the Single Directive is struck down in the states also. Perhaps the best method of ensuring this would be through a public interest litigation where the Supreme Court can clarify that the decision of the Court holding the Single Directive to be invalid and unconstitutional should also apply equally to all the State Governments. This will be an important step to ensure that corruption is checked at higher levels of administration. In Vineet Narain’s case the Supreme Court directed that:34 The Central Vigilance Commission shall be given statutory status. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of recommendations made by the Committee. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning. The CBI shall report to the CVC about cases taken up by it foe investigation; progress of the investigation; cases in which charge 33 34
Central Vigilance Commission 25 Administrative Law
sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities especially those in which sanction has been delayed or refused. The Supreme Court also issued several other directions in order to ensure incorruptibility in public administration in India. In Nagraj Shiva Rao Karjagi v. Syndicate Bank, Manipal35 it was held that the advice tendered by the CVC is not binding on the bank or the punishing authority and it is not obligatory on the bank or the punishing authority to accept the advice of the CVC. In V.D Trivedi v. Union of India36 the Court held that it can make a final order on the basis of the report submitted by the Commissioner for Departmental Inquiries even though the report has to go to the CVC and the final decision on the report is to be recommended by the CVC. In Waris Rashid Kidwai v. Union of India37, the Court, highlighting the importance of the role of the CVC in the matter of appointments of the Board level employees of Public Sector Enterprises stated that “In respect of appointments like the one in question before us, CVC acts as a watch-dog. The person to be appointed to such a post has to be above board and ought to have impeccable integrity. The CVC clearance before appointment is not just formality. The requirement of CVC clearance has a laudable object behind it.” In Vineet Narain v. Union of India38 the Supreme Court referred to the report of the Committee headed by Lord Nolan on ‘Standards in Public Life’. In this report Lord Nolan stated the Seven Principles of Public Life viz. Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership.
(1991)3 SCC 219. AIR 1993 SC 464. 37 AIR 1998 Delhi 31. 38 (1998)1 SCC 226. 36
Central Vigilance Commission 26 Administrative Law
The Court observed that these principles of public life are of general importance in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public services are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
Central Vigilance Commission 27 Administrative Law
â€˘ Delay And Other Deficiencies In Vigilance Matters Natural Justice demands that disciplinary proceedings are finalized in an expeditious manner. The delay in completion of proceedings invariably hampers efforts to curb malpractices and mete out justice. It may, on the one hand, cause undue harassment and demoralization of innocent employees, who at the end of proceedings are exonerated of the charges framed against them; and on the other hand, it enables the guilty officers to evade punitive action for longer periods of time. The delay in handling disciplinary cases has, on several occasions, been viewed adversely by the Courts also. There have in fact been instances where the proceedings initiated against the delinquent employees were squashed solely on the ground that there were inordinate delays in handling the disciplinary cases.39 The Central Vigilance Commission, therefore, considers it imperative that instances of suspect malpractice are followed up vigorously by the administrative authorities so that all the delinquent employees can be identified and proceeded against without delay. It is equally important that the formal proceedings once instituted are completed within the time frame laid down by the Government so that timely action can be taken against the delinquent employees. However, during 1999, the CVC noticed that delay in processing vigilance cases at various stages of investigation and inquiry was wide spread and a large number of organizations were not able to adhere to the normal time schedule prescribed for processing the disciplinary cases. The various types of delays that plague the CVC in its pursuance of vigilance matters are:
Delay in Investigation of Complaints The administrative authorities are required to complete investigation into a complaint normally within a period of three months. In the case of the Central Bureau of Investigation (CBI), the expected period for completion of an investigation is six months. It was, however, observed that, at the end of the year 1999, investigation reports were awaited on 1333 complaints forwarded by the CVC to departmental vigilance units for investigations and reports. Of these, 526 complaints (nearly 39%) were pending investigation more than 3 years and 401 complaints (nearly 30%) for the periods ranging between 1 to 3 years. 39
S.P Sathe, Administrative Law (New Delhi: Butterworths, 1999)at 196.
Central Vigilance Commission 28 Administrative Law
Similarly, out of 10 complaints pending with the CBI for investigation and report, 3 complaints were pending for more than 3 years. The CVC views with concern such inordinate delays in investigation of complaints. The failure to take timely action in investigating cases of misconduct often results in destruction/tampering of valuable evidence and sometimes even in loss of documents. This eventually facilitates officers to escape consequences of their punishment.40
Delay in Holding Oral Inquiry In cases, where the CVC advises initiation of departmental proceedings against an erring official on the basis of preliminary investigation report , the disciplinary authority is required to issue a charge sheet to the delinquent employee within one month of receipt of the CVCâ€™s advice. The Charged Officer (CO) is given normally a period of 10 days to submit his statement of defence denying or admitting the charge. If the CO does not admit the charge, and the proceedings were initiated for imposition of a major penalty, the matter can be decided by the disciplinary authority only after holding an oral inquiry, for which purpose it is required to appoint an Inquiry Officer (IO). The CVC, while advising initiation of major penalty proceedings normally advices the disciplinary authority whether to approach the CVC for nomination of a Commissioner for Departmental Inquiries, borne on the strength of the CVC, to hold the oral inquiry or to appoint its own officer as the Inquiry Officer. Keeping in view the time frame prescribed for issuing a charge sheet and obtaining written statement of defence from the Charged Officer, it should be possible fore the disciplinary authority to appoint inquiry officers within two months of the receipt of the CVCâ€™s advice for initiation of major penalty proceedings. There were 270 cases in which disciplinary authorities had not issued orders appointing the Commissioner for Departmental Inquiries nominated by the CVC as Inquiry Officers. Of these 41 cases were more than one year old and 229 cases were more than 3 months old. The Inquiry Officer appointed by the disciplinary authority to conduct departmental inquiry in a particular case is required to be furnished with the related documents viz. a copy of the charge sheet, reply of the charged officer, order of appointment of the 40
Thirty Sixth Annual Report of the Central Vigilance Commission, 1999 (New Delhi: Central Vigilance Commission, 2000)at 36-37.
Central Vigilance Commission 29 Administrative Law
Presenting Officer and the listed documents/witnesses, etc., to enable him to hold the enquiry. These documents are required to be made available to the Inquiry Officer immediately on his appointment as IO. However there have been several cases pending for more than a year where the Disciplinary Authorities had not furnished the relevant documents to the CDIs appointed as Inquiry Officers.41
Delay in Implementation of Commissionâ€™s Advice The CVC has been troubled and concerned that the disciplinary authorities, in many cases, have not been prompt in implementing the advice tendered by the CVC. In 1999 there were 1116 cases pending for over six months for implementation of first stage advice of the Commission and 711 cases pending for over six months for implementation of second stage advice of the CVC. The CVC is of the view that delay in implementing its advice defeats the very purpose of effective follow up on the acts of omission and commission on the part of erring officials and, therefore, needs to be avoided at all costs.42
Illustrative Cases of Delay, Deficient Investigation and Related Matters Ministry of Labour To fulfill an assurance given in the Rajya Sabha, two officials of Central Employment Exchange, Gorakhpur, a Deputy director and an Accounts Officer, were proceeded against departmentally in 1980, for commission of misconduct in getting the tenancy of government premises allotted in their own name, for private residential purposes, without the permission of the Director General. No further progress was made in this case. In reply to reminders from the CVC, the Ministry of Labour has been informing the CVC for about 14 years that the Deputy Director had filed a writ petition in the Allahabad High Court against the charge sheet issued to him, and that further action could not be taken because the case was pending in the Court. Finally in 1993, the Ministry made a volte face and informed the CVC that the case was never listed as the Deputy directorâ€™s counsel did not file the case. In the meantime, the Deputy Director retired and got retirement benefits in excess of his entitlement. While, the CVC advised the Ministry of Labour to fix the responsibility for the loss of files and for not pursuing the case properly,
Ibid at 37. Ibid at 38.
Central Vigilance Commission 30 Administrative Law
the Ministry failed to fix responsibility on the pretext that the original records were not available.43
Government of National Capital Territory of Delhi In 1987, the CVC advised initiation of major penalty proceedings against a Principal, a Vice-Principal and two others for commission of financial irregularities, including embezzlement of funds, in the Government boys Senior Secondary School No. 1, Model Town, New Delhi. Despite constant pursuance by the CVC, the disciplinary proceedings could not be completed even after lapse of over 12 years. This was mainly because of the failure of the Department to obtain certified copies of the prosecution documents and to appoint the inquiring authority in the case. In the meantime, two of the four charged employees, including the prime suspect expired. Because of the inaction on the part of the Government of the National Capital Territory of Delhi, it has not been possible so far to complete the disciplinary proceedings.44
Ministry of Steel The CVC forwarded a complaint to the Ministry of Steel on 27 th October, 1994 containing allegations against employees of Rashtriya Ispat Nigam Limited (RINL)/ Vishakapatnam Steel Plant (VSP). The Ministry of Steel sought the CVCâ€™s advice only on 19 th March, 1999. The CVC observed that the investigation had prima facie established that the contract for consultancy was awarded to an Australian firm without following due process, which had resulted in an in fructuous investment of Rs 52.5 Crores. It was also observed that the employees involved in the case had already retired and left the services of RINL/VSP and there was no provision in the CDA Rules, applicable to their employees, to proceed against them after retirement. Therefore the CVC accepted closure of the case as fait accompli. It, however, suggested to the Ministry of Steel that the procedures in the area might be reviewed and streamlined. It is observed that inordinate delay in investigation of complaint and examination of investigation report allowed the suspected employees to go scot-free in such a serious case.45
Ibid at 39. Id. 45 Supra note 40 at 46-47. 44
Central Vigilance Commission 31 Administrative Law
Ministry of Petroleum and Natural Gas The Chief Technical Examiners of the CVC carried out technical examination of earthwork in cutting and filling in the premises of Cochin Refineries Limited, during March, 1984. The Ministry of Petroleum and Natural Gas was advised on 11 th June, 1993 to conduct in-depth investigation to fix responsibility of the concerned officials, as irregularities involved substantial amount. The Cochin Refineries Limited/the Ministry of Petroleum and Natural Gas took nearly six years to furnish clarifications/reports called for by the CVC. All the members of the Tender Committee, except one, had retired by then. This delay allowed the guilty to go scot-free. Further, initiation of major penalty proceedings against one member of the Tender Committee, who was still in service, was badly delayed.46
Central Vigilance Commission 32 Administrative Law
Central Vigilance Commission The CVC has since its inception been of the view that every organization should review the systems and procedures prevailing in the organization so as to plug such loopholes, which provide scope for corruption. The CVC, in exercise of its powers, also took some measures in order to reduce the level of corruption and issued instructions in that regard to the administrative authorities. It also made some recommendations to the Government for enactment of laws. Further, if it was observed during examination of cases that the prevailing provision in the rules of a particular organization provided scope for corruption, the concerned organization was advised to amend the rules. Thus the measures taken by the CVC to reduce the level of corruption through procedural/system improvements can be categorized into the following categories:
General Instructions issued by the Central Vigilance Commission a) Creating a Culture of Honesty In order to encourage a culture of honesty it was provided that junior employees, who initiate any proposal relating to vigilance matters which is likely to be referred to the CVC, may endorse a copy thereof directly to the CVC by name. Such references would not be treated a san act of indiscipline. This would give an opportunity to the CVC to follow up the matter with the concerned administrative authorities, if such matters are not referred to it, and would also ensure that there has been no attempt on the part of the administrative authorities to protect the corrupt or dilute the charges. These instructions also provided that if a junior officer makes a false or frivolous complaint, it would be viewed adversely.47
b) Greater Transparency in Administration Lack of transparency is one of the major sources of corruption, particularly in the matters relating to tenders and the exercise of discretion. The CVC was of the view that it might be necessary to maintain secrecy in the matters, where 47
Supra note 40 at 57.
Central Vigilance Commission 33 Administrative Law
discretion has to be exercised or when the tenders are being processed. However it also was of the view that there is no need for such secrecy after the discretion has been exercised or the tender has been finalized. The CVC has, therefore, issued instructions requiring all organizations within its purview to publish the details of all such cases regarding acceptance of tenders, out of turn allotments and the discretion exercised in favour of an employee/party, on the Notice Board and also in the organizationâ€™s regular publications. This would provide an automatic check for corruption induced decisions or undue favours being bestowed.48
c) Speedy Departmental Enquiries Justice delayed is justice denied. Thus in order to obviate delays in finalisation of departmental proceedings, the CVC has instructed the Departments to appoint retired officers as â€˜inquiring authoritiesâ€™ so as to complete the departmental inquiries within a period of six months from the date of appointment of the inquiring authorities. The CVC has also instructed that if the rules applicable to their employees do not provide for appointment of retired officers as inquiring authorities, these may be amended accordingly. Further, in order to ensure that the time limit of six months for submission of report is adhered to, it has also been provided that no more than two adjournments would be given. In order to ensure timely completion of departmental inquiries, the CVC stipulated a model time schedule for observance by the inquiring authorities. It also issued instructions that the documents asked for by the charged employee might be produced within a time limit fixed by the inquiring authority failing which adverse note would be taken against the custodian of the department. The instructions also provided that in one case involving more than one officer, only one Presenting Officer should be appointed by all the disciplinary authorities. The disciplinary/appellate authorities have also been advised to decide the representation of the charged employee, alleging bias against the inquiring authority, within fifteen days from the date of receipt of representation.49
M.P Jain and S.N Jain, Principles of Administrative Law (Nagpur: Wadhwa and Company, 1999)at 953. Supra note 40 at 58.
Central Vigilance Commission 34 Administrative Law
d) Tenders Post-tender negotiation is one of the major sources of corruption. The CVC has, therefore, banned post-tender negotiations, with effect from 18th November, 1998 except with the lowest tenderer. It was subsequently clarified by the CVC that these instructions would not apply to the cases involving “purchasing preference policy” notified by the Government of India and to the World Bank Projects and the Projects funded by other international funding agencies such as IMF etc.50
e) In order to check frauds the CVC directed all Banking Companies/Financial Institutions under its purview to offer electronics clearance services to its customers. The CVC also directed banks to computerize their business and instructed them to take care of the need for encryption as well as safety in banking operations so that computer frauds are not encouraged. In order to check willful defaulters the CVC issued instructions to improve intra-bank communication. The CVC also brought out a Special Chapter on Vigilance Management in Banks vis-à-vis the role and functions of the CVC and made it applicable to all employees of public sector banks.51
f) Sensitising the public about corruption Assuming the role of a whistle blower and the authority cautioning against misuse of official powers leading to corruption, the CVC directed all Departments/Organisations under its purview to prominently display a standard notice board at the Reception of each of their offices in English as well as in the vernacular languages asking the public to not pay bribes and stating the remedy available to the people if they are asked for bribes.52
g) Action on anonymous/pseudonymous complaints There has been widespread use of anonymous and pseudonymous petitions by disgruntled elements to blackmail honest officials. Such complaints were resorted to especially when a public servant’s promotion was due. Thus the CVC issued 50
Supra note 40 at 59. Ibid at 60. 52 Id. 51
Central Vigilance Commission 35 Administrative Law
instructions that no action should be taken on any anonymous or pseudonymous complaint and they must just be filed.
h) Special Chapter
Enterprises Keeping in view the fact that the public sector has to compete with private sector in its functioning and that the public sector executives should not detract from, impair or inhibit commercial decision making, the CVC issued a Special Chapter on Vigilance Management in Public Sector Enterprises. This Chapter provides, inter alia, that vigilance cases involving all officials of Board level as well as two levels below the Board level would be referred to the CVC for advice. 53
i) The CVC has issued instructions to all organizations within its purview to strengthen vigilance and anti corruption work . Moreover the CVC has prepared a 13 Point Action Plan to implement the vision of Zero Tolerance to corruption matters to check corruption. The CVC has also started implementing the policy of meting out effective punishment to corrupt employees through traps in order to change the prevailing atmosphere of cynical apathy in the organizations.
Suggestions made by the CVC for Enactment/Implementation of Laws 54 a) Enactment of Corrupt Public Servant (Forfeiture of Property) Act The CVC had observed that corruption in India had flourished because it was considered to be a “Low Risk, High Profit” business. The great lacuna in the present system is that even if a person is found to be corrupt and is punished, he continues to enjoy the benefits of his ill-gotten wealth. Thus the CVC recommended that an Act which provides for confiscation of ill gotten wealth was the only solution in the circumstances. This recommendation of the CVC, was acted upon by the Law Commission, which drafted a report captioned “Corrupt Public Servant (Forfeiture of Property) Act, 1999. The Government of India is yet to act on this report. 53 54
Supra note 40 at 61. www.cvc.nic.in
Central Vigilance Commission 36 Administrative Law
b) Benami Transaction Prohibition Act, 1988 The Government of India Passed the Benami Transaction Prohibition Act, 1988 to prohibit benami transactions and to enforce the right to recover property held benami and for matters connected therewith and incidental thereto. The Central Vigilance Commissioner requested the Government of India to prescribe the Central Vigilance Commission as the authority to implement this act. The response from the Government is awaited.
c) Whistle Blowerâ€™s Act The CVC took up the matter with the Chairman, Law Commission of India indicating the need for a Whistle Blower Act on the lines of UK and USA to encourage honest public servants to expose corrupt practices. This matter is still pending and a response is awaited.
d) Freedom of Information Act The CVC took up this matter with the Government of India in order to bring in greater transparency in the system. The matter is under active consideration of the Government and a Bill in this regard is likely to be placed before Parliament in the near future.
Recommendations made by the CVC to a particular Department During examination of cases if there were provisions in the rules of a particular organization/department which provided scope for corruption, the CVC would advise the concerned organization to amend the rules. Thus the CVC made its recommendations depending upon the facts and circumstances of each case keeping in mind the principles of natural justice and the objective of fighting corruption. This also brings about greater flexibility in the working.55
M.P Jain and S.N Jain, Principles of Administrative Law (Nagpur: Wadhwa and Company, 1999)at 956.
Central Vigilance Commission 37 Administrative Law
• Conclusion ‘Be you ever so high, the law is above you’ 56 This maxim is the basic tenet of the rule of law and highlights the importance of the concept of equality. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies.57 The CVC has been making all efforts to retain and maintain this public confidence and to show the people that the maxim holds good and those who are corrupt, no matter how high their position is, will be punished. In an effort to propagate the idea of zero tolerance for corruption, the Central Vigilance Commission (CVC) in India has begun to share with citizens a large amount of information related to corruption. The CVC has started using its web site to bring in greater transparency in corruption in high places. On its website, the CVC published the names of the public servants who have been found guilty in departmental proceedings and against whom major penalty has been recommended or against whom prosecution has been recommended. Newspaper polls have shown that this move was welcomed by the people at large. In fact, Harvard University called the Central Vigilance Commissioner to deliver a talk on 19th October, 2000 in the Institute of International Development because this was for the first time that the Internet was used to fight corruption. The CVC website contains the following sections/features through which the CVC communicates with the public:58 The commission informs the public about its role, responsibility, and strategies to combat corruption. This is an effort keep the agenda of fighting corruption alive in the public mind.
Vineet Narain v. Union of India, (1996)2 SCC 199. Id. 58 www.cvc.nic.in 57
Central Vigilance Commission 38 Administrative Law
The commissioner communicates directly with the public through messages and speeches to bolster confidence in the institution. Instructions for how any citizen can lodge a complaint against corruption, without fear of disclosure or reprisal. Central Vigilance Officer's List: each organization is expected to nominate a senior officer to whom an employee can take a complaint on corruption. Statistical reporting of the achievements of the Commission (Annual Report). Details of convictions of public servants by the courts are also presented, along with Information on officers from the All India Services against whom an enquiry has been initiated or a penalty imposed. This section also highlights the performance of various departments responsible for conducting investigations. Although the public at large often knows who is a corrupt public servant, there has been no systematic method by which this information could be brought to the notice of either the CBI or the Income Tax department. A new feature of the CVC site will now increase the risk element for the corrupt whose ill-gotten wealth is stashed away in the form of black money, foreign accounts, benami bank accounts (wealth hidden under false names), jewelry and other valuables, benami property, etc. Members of public can now report information against a public servant about possession of black money or assets, which are believed to be disproportionate to his known sources of income. The Commission would scrutinize the information so received, and if the information is considered sufficient for carrying out detailed investigations, the CBI or the Income Tax authorities would be advised accordingly. The Commission clearly states that it does not entertain anonymous or pseudonymous complaints. However, the identity of the complainant can be protected if he/she so desires. Section 182 of the Indian Penal Code makes it a criminal offence for a person to report about a public servant any information which he knows or believes to be false. Some of those public servants whose names have appeared on the CVC website occupied sensitive positions in government. It is a common principle in government that if a person is facing a vigilance inquiry, he should not be placed in a sensitive post.
Central Vigilance Commission 39 Administrative Law
However, this practice was not being followed in India. That is one reason why corruption has flourished in the system. The CVC site brought this issue to the fore.59 Another positive outcome from the site is that several people whose names appeared complained that they had never even been served with a charge sheet. Lengthy delays in the conduct of a departmental inquiry help corruption to flourish. Delay provides a cover of respectability for the guilty. Worse, perhaps, is that if departmental inquires are delayed, an innocent person may become a victim of mindless departmental procedure. His career may be ruined due to delays in getting his name cleared. The CVC now sends a monthly reminder to all departmental authorities so that the disposal of the cases may be expedited. The CVC aims to have all departmental inquires completed within six months. The question may be raised whether in a country like India, with a low computer density, a website like the CVC's can be an effective anticorruption tool. By September 2001 only 150,000 hits had been registered on the site60. Fortunately, India has a free and vibrant press. Both print media and the radio have been able to transmit the content of CVC website throughout the country. Thus, the site has had a much bigger impact than what could be expected based on India's computer density alone. Thus the CVC is moving with the times and it is hoped that the CVC will continue to leave no stone unturned in fighting corruption in high places and will fulfill the objectives of the Santhanam Committee viz. to bring about incorruptibility in administration of government departments.
Central Vigilance Commission 40 Administrative Law
• Bibliography Articles 1. L.M Bhatia, “Central Vigilance Commission- Its Role in Administrative Vigilance” Indian Journal of Public Administration, Vol. XVII, (1971) at 65.
Books 1. C.K Thakker, Administrative Law (Lucknow: Eastern Book Company, 1996). 2. Dr. J.J.R Upadhayaya, Administrative Law (Allahabad: Central Law Agency, 1999). 3. M.P Jain and S.N Jain, Principles of Administrative Law (Nagpur: Wadhwa and Company, 1999). 4. S.P Sathe, Administrative Law (New Delhi: Butterworths, 1999).
Reports 1. Committee on Prevention of Corruption, 1962 (New Delhi: Government of IndiaMinistry of Home Affairs, 1964). 2. Thirty-Sixth Annual Report of The Central Vigilance Commission, 1999 (New Delhi: Central Vigilance Commission, 2000).
Websites 1. www.cvc.nic.in