Central Vigilance Commission Act, 2003: An Overview And The Need To Give It More Teeth

History of the Act

CVC, as an integrity institution was set up by the Government of India in 1964 vide a Government Resolution pursuant to the recommendations of Santhanam Committee. However, it was not a statutory body at that time. According to the recommendations of the Santhanam Committee, CVC, in its functions, was supposed to be independent of the executive. The sole purpose behind setting up of the CVC was to improve the vigilance administration in the country.^[1]

The Genesis of the CVC Act lies in the 1997 Report of the Independent Review Committee set up by the Government of India in September, 1997 to monitor the functioning of CVC and to examine the working of CBI and the Enforcement Directorate. It was suggested in this Report that CVC be given a statutory status. This was followed by the judgement dated 18.12.1997 delivered by the Supreme Court of India in Vineet Narain vs. Union of India^[2] (commonly known as the Havala case), wherein the Supreme Court deplored the shoddy investigation conducted by the CBI and other investigating agencies in matters where accusations were made against high dignitaries wielding power and influence, and issued directions to the Government to establish institutional arrangements aimed at insulating the CBI from outside influences. The directions, inter alia, included conferring statutory status upon the CVC and the transfer of superintendent powers^[3] over the CBI's functioning from the Central Government to the CVC.

The Government responded by convening a cabinet meeting on 8^th April, 1998, and decided to ask the Law Commission of India for a report. The Law Commission submitted its report^[4] to the Government on 13^th August, 1998 along with a draft of the CVC Bill.

However, on 25^th August, 1998, the then Government hurriedly promulgated the Central Vigilance Commission Ordinance, 1998 as per the draft prepared by the Secretaries, thereby overlooking the recommendations contained in Vineet Narain (supra) and the Law Commission Report. The most notable difference, among others, was that while the judgement entrusted the responsibility of exercising superintendence over the CBI's functioning to the CVC, the Ordinance laid down that the CVC would exercise such superintendence over the Special Police Establishment only in respect of the cases under POCA. On 27^th October, 1998, another Ordinance was promulgated, called the Central Vigilance Commission (Amendment) Ordinance, 1998 (No. 18 of 1998), whereby certain amendments were made in the principal Ordinance. Then on 12^th December, 1998, the Government introduced the Central Vigilance Commission Bill, 1998 (Bill No. 149 of 1998) in the Lok Sabha to replace the Central Vigilance Commission Ordinance, 1998 and the Central Vigilance Commission (Amendment) Ordinance, 1998. However, with the dissolution of the 12^th Lok Sabha, the Bill lapsed. The Bill was re-introduced, mostly as a verbatim copy of the old bill, in the next session of the Lok Sabha and was passed by the Lok Sabha on 26^th February, 2003 and by the Rajya Sabha on 7^th August, 2003.

Scheme of the Act

1. Section 3 provides for the constitution, composition and qualifications of the CVC. The words "who have been or who are" appearing in Section 3(3)(a)^[5] refer to the person holding office of a civil servant or who has held such office. These words came up for consideration by the Supreme Court in the case of N. Kannadasan v. Ajoy Khose and Others^[6] in which it has been held that the said words indicate the eligibility criteria and further they indicate that such past or present eligible persons should be without any blemish whatsoever and that they should not be appointed merely because they are eligible to be considered for the post.
2. Section 4 provides for the appointment of the Vigilance Commissioners ("VC") by the President, and Section 5 provides for their Terms and Conditions of Service including their tenure of appointment and the salaries and allowances.
3. Section 6 provides for the removal of the Vigilance Commissioners by an order of the President on the ground of proved misbehavior or incapacity on the report of the Supreme Court in this regard.
4. Section 9 specifies the manner in which the proceedings of CVC shall be conducted and states that all business of the Commission shall, as far as possible, be transacted unanimously.
5. CVC has also been entrusted with recommendatory powers for appointment of Director of Enforcement^[7], Director of Delhi Special Police Establishment and Superintendent of Police^[8].
6. It is the duty of CVC to present annually to the President a report as to the work done by the Commission with a separate chapter dedicated on the functioning of the Delhi Special Police Establishment^[9].

Section 8 – Legislative Mandate and Judicial Interpretation

Section 8 forms the cornerstone of the Act providing for functions and powers of the CVC. The functions primarily focus on the offences alleged to have been committed under POCA or an offence with which a public servant specified in Section 8(2)^[10] may be charged under the Code of Criminal Procedure, 1973 at the same trial. These functions include exercising superintendence over the functioning of the Delhi Special Police Establishment (DSPE) w.r.t. the investigation of alleged offences under POCA and issuing necessary directions to them^[11], reviewing the progress of the investigation, conducting or causing an inquiry or investigation to be made into any complaint, tendering advice to the Central Government, and exercising superintendence over the vigilance administration of various ministries of the Central Government, central statutory corporations, Government companies, societies and local authorities owned or controlled by the Central Government.

Section 8 is a stark dilution from what was envisaged under the Apex Court judgment in Vineet Narain (supra) and the recommendations given in the 161^st Law Commission Report. The scope for the CVC to exercise superintendence over the functioning of the CBI has been drastically curtailed by restricting the definition of the word 'public servant' to mean only the civil servants of certain categories. The superintendence over the work of the CBI in respect of offences committed by other categories of public servants as defined in Section 2(c) of POCA, including the politicians, would remain outside the purview of the CVC's charter of responsibilities. Hence, this effectively means that there is a system of dual control over the CBI – one exercised by the CVC in respect of corruption cases registered against certain categories of public servants mentioned in the Act and the other by the Central Government in respect of its other cases.

Section 26(c) of the Lokpal Act – Reintroduction of the Single Directive

The Apex Court in Vineet Narain(supra) dealt with the validity, legality and propriety of the Single Directive No. 4.7(3) issued by the Central Government which mandated the prior sanction of the Secretary of the Ministry/Department before initiation of investigation by SPE against officers of the Government and the Public Sector Undertakings (PSUs), nationalized banks above the level of Joint Secretary or its equivalent. The Single Directive is a consolidated set of instructions issued to the CBI by various Ministries/Departments regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. It was first issued in 1969 and thereafter amended on several occasions. The Supreme Court in Vineet Narain(supra) declared that the "Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under Section 4(1) of the Act", and held the provision unconstitutional and violative of Article 14.

However, in 2003, the Single Directive declared invalid earlier by the Supreme Court was reintroduced as part of the CVC Act. Section 26(c) of the Act inserted Section 6A in the Delhi Special Police Establishment Act, 1946, which made it mandatory for CBI to seek prior sanction from the Central Government before inquiry or investigation into any alleged offence under POCA against officers of joint secretary level and above. Soon thereafter, Mr. Subramanian Swamy and the Centre for Public Interest Litigation (CPIL), in a series of PILs, challenged the constitutional validity of Section 26C of the CVC Act and Section 6A of the DSPE Act. A five-judge constitution bench of the Apex Court was constituted to decide these petitions, and vide judgment dated 6^th May 2014 in Subramanian Swamy & Ors. vs. Director, Central Bureau of Investigation & Ors.^[12], the Single Directive was held invalid and violative of Article 14 of the Constitution for the second time. The Court, inter alia, held that, "The provision in Section 6A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6A has propensity of shielding the corrupt. The object of Section 6A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.".

This victory for the detractors of 'Single Directive' sailed a short span, as the legislature, by way of the Prevention of Corruption (Amendment) Act, 2018, yet again launched the 'Single Directive' in a new avatar as Section 17A in the amended POCA. With the insertion of Section 17A in POCA, every police officer was mandatorily required to procure the prior approval of the Central-State Government, or the competent authority, as the case may be, before conducting any enquiry, inquiry or investigations into any alleged offence committed by a public servant under the Act. The revamped umbrella covers not only the present and serving bureaucrats, but also the retired ones. Further, the investigations by CBI now needs prior sanctions at two stages – inquiry and prosecution.

While it can be argued that Section 17A brings in a layer of check and due diligence that might prevent undue harassment of honest officers, curb red tapism, curtail procedural bottlenecks and fasten decision making, however it is likely to compromise secrecy of probe and cause unnecessary delays in investigation. The CVC had recently stated that the stipulated time for sanction to prosecute nearly 100 government officials for their alleged involvement in corruption was over sans the obtainment of requisite approval and sanction by the concerned authority.^[13]

Changes brought in by the Lokpal Act

The Lokpal and Lokayuktas Act, 2013 ("Lokpal Act", for short) has amended some provisions of CVC Act, 2003 whereby the Commission has been empowered to conduct preliminary inquiry into complaints referred by Lokpal in respect of officers and officials of Group 'B', 'C' & 'D'^[14], besides Group 'A' officers who were already covered u/s 8(2)(a) of the CVC Act, for which a Directorate of Inquiry^[15] for making preliminary inquiry is to be set up in the Commission. The preliminary inquiry reports in such matters referred by Lokpal in respect of Group A and B officers are required to be sent to the Lokpal by the Commission^[16]. The Commission is also mandated under the newly inserted Sections 8A and 8B of the CVC Act, 2003, to cause further investigation into such Lokpal references in respect of Group 'C'& 'D' officials and decide on further course of action against them. Post the commencement of the Lokpal Act and the corresponding amendment brought to the CVC Act, the Lokpal has been given the powers of superintendence over, and powers to give direction to DSPE in respect of the matters referred by the Lokpal for preliminary inquiry or investigation to the DSPE under the Act. Further, it is made incumbent on CVC to send a statement ^[17] to the Lokpal in respect of action taken on complaints referred to it under the second proviso to Section 20(1) and on receipt of such statement, the Lokpal may issue guidelines for effective and expeditious disposal of such cases.

Therefore, the murky only gets murkier. There is no gainsaying that the legitimate expectation from the newly incorporated statute, the Lokpal Act, would have been to refine the process of inquiry and investigation into the corruption cases, however, the Lokpal Act has only compounded the extant pandemonium and lead to greater obfuscation. There are certain areas (offences committed by Category 'A' officers, for instance) where there is an overlap of jurisdiction between CVC and Lokpal, as has already been communicated by CVC to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice^[18]. It is submitted that for the two acts to function in harmony and cohesion, the domain of each should be independent and there must be a clear-cut division of the jurisdiction and powers.

Conclusion

The CVC has been accorded a step-motherly treatment by the legislature hitherto and has been made to play a second fiddle in the investigation and prosecution of POCA offences. The wings of the CVC were clipped further with the introduction of Section 17A in POCA by the legislature causing avoidable delays in the investigation, and at times, even lapse of recommendations made by the CVC. Now, with the neoteric appointments of the CVC being questioned and shrouded in dubiety and suspicion, it is time to frame guidelines for handling grievances/complaints against the CVC/VCs, revamp the role and appointment process of CVC and streamlining of the CVC Act and the corresponding provisions of the Lokpal Act and POCA to confer some clarity on the functioning of Commission, do away with the overlapping jurisdictions of CVC and Lokpal and equip the CVC with some powers to expedite the sanction for investigation and prosecution. As regards Section 17A of POCA, the challenge to its constitutional validity is pending before the Supreme Court in 'Centre for Public Interest Litigation Vs. Union of India; W.P. (C) No. 1373/ 2018' and any comment/observation thereon would not be warranted