An Analysis on Administration of Central Vigilance Commission
Corruption is one of the major worries that the citizens of a country, always, have in them. Corruption has now become inevitable especially in the democracies where the power is in too many hands. A country’s government should always be vigilant about their usage of money because they are directly accountable to the citizens of that particular country. Vigilance means to ensure clean and prompt administrative action towards achieving efficiency and effectiveness of the employees in particular and the organization in general, as lack of Vigilance leans to waste, losses and economic decline. Corruption is one of the serious problems that affect the Indian polity. The Berlin-based corruption watchdog Transparency International (TI) has put India at rank 76 out of 168 countries in its latest Corruption Perception Index. Considering this stats, it is always necessary for India to keep an eye on the activities of the officers and their official transactions. The Indian Government created the Central Vigilance Commission in 1964 in order to curb the corruptive practices in the administration. It was done on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam Committee, to advise and guide Central Government agencies in the field of vigilance.
The Commission shall consist of:
A Central Vigilance Commissioner - Chairperson;
Not more than two Vigilance Commissioners - Members;
The commission aimed at preventing the corrupt practices by the officials by bringing out reports on the failure of system which eventually lead to corruption.
Formation of CVC and subsequent developments:
The Central Vigilance Commission (CVC) was established in 1964, as an apex body for exercising general superintendence and control over vigilance administration, through the Government of India Resolution of 11.2.1964. As mentioned earlier, the main mandate of the Commission was based on the report of the Committee on Prevention of Corruption, popularly known as the Santhanam Committee. Before 1963, the situation was different. There was a special Police establishment under the Delhi Special Police Establishments Act, 1946 to investigate the corruptive offences committed by the Government officials while discharging their duties. With the creation of CBI, SPE was made a wing of the CBI for purposes of investigation. The CBI derives its power from the Delhi Police Establishment Act, 1946.
The establishment of the Commission was considered essential for evolving and applying common standards in deciding cases involving lack of probity and integrity in administration. The Resolution empowered the CVC to undertake inquiry into any transaction in which a public servant is suspected or alleged to have acted for an improper purpose or in a corrupt manner irrespective of his or her status. Through subsequent ordinances and legislations the Government has added to the functions and powers of the Commission. Hon’ble Supreme Court in the judgement of the Writ Petition filed in public interest by Shri Vineet Narain and others inJain Hawala Case, gave directions regarding the superior role of CVC. In this case the role of the Central Bureau of Investigation was criticised and the court directed that CVC should be given a supervisory role over CBI.
Subsequently, the Government promulgated an Ordinance in 1998. The Ordinance of 1998 conferred statutory status to the CVC and the powers to exercise superintendence over functioning of the Delhi Special Police Establishment, and also to review the progress of the investigations pertaining to alleged offences under the Prevention of Corruption Act, 1988 conducted by them. In 1998 the Government introduced the CVC Bill in the Lok Sabha in order to replace the Ordinance, though it was not successful. The Bill was re-introduced in 1999 and remained with the Parliament till September 2003, when it became an Act after being duly passed in both the Houses of Parliament and with the President’s assent. The provisions of the Act include inquiries into offences alleged to have been committed by certain categories of public servants of the Central Government, corporations established by or under any statute, government companies, registered societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto.
The Parliament has enacted the Central Vigilance Commission Act of 2003 in such a way that the Commission exercises all powers and functions entrusted to it under the Government of India Resolution, so that it will not be inconsistent with this Act.
The Vigilance Commission has advisory jurisdiction and powers in respect of matters to which the executive power of the Centre extends. It can undertake any inquiry into any transaction in which a public servant is suspected or alleged to have acted for an improper or corrupt purpose; or cause such an inquiry or investigation to be made into any complaint of corruption, gross negligence, misconduct, recklessness, lack of integrity or other kinds of mal-practices or misdemeanours on the part of a public servant.The following categories of employees come within the commission’s purview:
(a) Gazetted Central Government officials;
(b) Board level appointees in the public sector undertakings of the Central Government;
(c) Officers of the rank of Scale-III and above in the public sector banks;
(d) Officers of the rank of Assistant Manager and above in the Insurance Sector (covered by LIC and GIC); and
(e) Officers in autonomous bodies/local authorities or societies comparable in status to that of the Gazetted Central Government officials.
It can have its jurisdiction over the employees of public sector undertakings, statutory corporations, and port trusts etc. But these departments have to pass a formal resolution accepting the commission’s jurisdiction.
The commission’s main concern is matters regarding corruption, misconduct, lack of integrity or other kinds of malpractices or misdemeanours from the side of the Government servants. The commission has only advisory jurisdiction. It cannot perform adjudicatory functions. The commission cannot investigate or enquire into complaints of corruption except to a limited extent.
The functions of the commission are:
·When the commission gets the complaints regarding the above mentioned matters, it refers them to the CBI or concerned department for investigation. These bodies will have to send the report to the commission after the investigation. The commission will offer its advice on the matter. The commission itself cannot investigate the complaints. But the Chief Technical officer under the commission conducts technical examination of public works including checking of bills of contractors etc.
·The commission advises as to the action to be taken in the following cases: (i) Reports of investigation by the C.B.I involving departmental action or prosecution (ii) Reports of investigation by the ministry or department involving disciplinary action in cases either referred by the commission or otherwise (iii) Cases received direct from the public sector undertakings and statutory corporations.
·The commission has power to require that oral enquiry in any departmental proceeding should be entrusted to one of the Commissioners for departmental enquiries. It oversees the enquiries conducted by the commissioners and the commission has to ensure that the enquiries are completed expeditiously, and to tender advice to the disciplinary authorities for taking action on the reports of the commissioners.
·All vigilance officers are required to furnish to the commission for its assessment a resume of the vigilance work done in the organisation with special emphasis on preventive vigilance.
·The commission should conduct, through its organisation of Chief Technical Examiners, independent technical examination mainly from vigilance angle, of construction and other related works undertaken by various Central Government organisations;
·The commission shouldscrutinize and approve proposals for appointment of Chief Vigilance Officers in various organisations and assess their work;
·The commission should 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
·The commission should organise training courses for the Chief Vigilance Officers and other vigilance functionaries in Central Government organisations.
Functions and powers as mentioned under 2003 Act:
·Exercise superintendence over the functioning of the Delhi Special Police Establishment (CBI) insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain categories of public servants.
·Give directions to the Delhi Special Police Establishment (CBI) for superintendence insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988.
·To inquire or cause an inquiry or investigation to be made on a reference by the Central Government
·To inquire or cause an inquiry or investigation to be made into any complaint received against any official belonging to such category of officials specified in sub-section 2 of Section 8 of the CVC Act, 2003.
·Review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC
·Review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988
·Tender advice to the Central Government and its organizations on such matters as may be referred to it by them.
·Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government.
·Shall have all the powers of a Civil Court while conducting any inquiry.
·Respond to Central Government on mandatory consultation with the Commission before making any rules or regulations governing the vigilance or disciplinary matters relating to the persons appointed to the public services and posts in connection with the affairs of the Union or to members of the All India Services.
·The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance Commissioners (Members) of the Committee, on whose recommendations, the Central Government appoints the Director of Enforcement.
·The Committee concerned with the appointment of the Director of Enforcement is also empowered to recommend, after consultation with the Director of Enforcement appointment of officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement.
·The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance Commissioners (Members) of the Committee empowered to recommend after consultation with Director (CBI), appointment of officers to the post of the level of SP and above except Director and also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI).
There are several issues in the constitution and the powers granted to CVC. When it comes to the appointment of the Chief Vigilance Officer, the system is not transparent and clear. In 2010, the issue was brought to the limelight when PJ Thomas was appointed as the Chief Vigilance Commissioner in September 2010, on the recommendation of a High Powered Committee (HPC) headed by the Prime Minister of India. The selection of the new CVC was marked by controversies, after Sushma Swaraj, who was part of three-member selection committee, objected to the choice of Thomas, citing the pending charge sheet against him. Public interest litigation was filed in the Supreme Court of India by Centre for Public Interest Litigation and India Rejuvenation Initiative.On March 3, 2011, the Supreme Court quashed the appointment of Thomas as the Chief Vigilance Commissioner, noting that the HPC did not consider the relevant materials on the pending charge sheet.Although there is no statutory requirement about the selection having to be unanimous or based on consensus among the members of the committee, there is an undeniable moral obligation on the part of the representatives of the government on the committee not to proceed with the appointment in case the Leader of the Opposition, on any reasonable ground, disagrees with the selection of any particular individual.
The states now have opted only Vigilance Commission instead of Ombudsman to control corruption in the administration. The main problem with the Vigilance Commission mechanism is that, it is an agency of the executive and not of the legislature. It was not created by a statute but by a government resolution. In addition to this, the commission does not have any investigation mechanisms and cannot investigate any complaints and should depend on other bodies for their investigation report. It does not have any sort of adjudicatory powers as it is not the competent authority to sanction criminal prosecutions for offences committed by the officials while discharging their duty. It will always have to wait for the sanction from the competent authority. The best example can be the recent delay by the public sector banks in sanctioning action against 98 bank officials and the CVC is patiently waiting for about four months.The issues that can arise from the commission is well illustrated by the Supreme Court case Sunil Kumar v. State of West Bengal. An enquiry officer was appointed to enquire into certain charges against the appellant who was a member of Indian Administrative Service. Report of enquiry was sent to Vigilance commissioner for his advice. Thereafter the disciplinary authority, I.e. state Government came t conclusions. The appellant was reduced from higher to lower salary in the same grade. He challenged the order, and contended that consultation with Vigilance officer, who had no statutory status and Government, did not furnish report of Officer. Court held that Disciplinary committee committed no irregularity, and conclusions were not based on advice tendered by Vigilance officer, but arrived independently. The preliminary findings of the disciplinary authority happened to coincide with the views of Vigilance commissioner was neither here nor there. This judgement from the Honourable Supreme Court has failed to satisfy the jurists. There is always a doubt regarding the consideration of the views of Vigilance Commissioner in reaching the conclusion by the disciplinary authority. It is undisputed fact that the consideration of materials obtained behind the back of the petitioner would amount to the violation of natural justice. If the report submitted by the Vigilance commissioner is not taken into account, then there is no use to have such an institution. Jurists have opined that in this instant case, the conclusions of the disciplinary authority had the influence of the Vigilance commission’s finding, since its initial findings were in consonance with the findings of the Vigilance Commission. Natural justice requires that the decision making authority should make decision with its own mind and should not be influenced by any another body unknown to the concerned party. To avoid difficulties, there are three options available to the government.
1.Government shouldn’t consult vigilance commissioner for drawing conclusions from record.
2.If he is consulted, a copy of the report should be submitted to the delinquent officer for his comments thereon before a final decision is taken
3.Vigilance commissioner should be given a legal status. And provisions must be made in law for consulting him.
The government should make a decision between the last two options as the first one destroys the purpose of the Vigilance commission.
The Supreme Court has held that no third party like Chief Vigilance Commissioner or the Central Government could dictate the disciplinary authority or appellate authority as to how they should exercise their power and what punishment they should impose on delinquent officer.The Court again held that recommendation of Chief Vigilance Commissioner regarding the question of punishment is not binding on disciplinary authority.
The disciplinary proceedings against government servants are taken under service rules framed by Government under Art.309 of Constitution. A public servant can also be prosecuted for bribery and corruption in a criminal court. With a view to expedite such trials, the Prevention of Corruption Act, 1947 (now replaced with P.C. Act) makes certain provisions. The need of the hour is to eradicate corruption but at the same time it is always important to save the public servants from false accusations. And for that purpose PCA has brought in a provision, Section 17 of PCA which says that before a public servant can be prosecuted for any specific offence, sanction of State Government is necessary in case of a person who is employed in connection with the affairs of a state and is not removable from his office save by or with the sanction of the State Government. The grant of sanction being an administrative act, the need to provide an opportunity of hearing to the accused, does not arise.InMohd. Iqbal Ahmed v. State of Andra Pradesh, the court held that any case instituted without proper sanction will be voidab initio.Further it held that the sanctioning authority should have full knowledge of the case and should apply his mind while giving the sanctions.
There was an interesting issue raised in the case ofR.S. Nayak v A.R. Antulay.Antulay was the Chief Minister of Maharashtra. He resigned in 1982 but continued as an MLA. The Governor granted sanction to prosecute Antulay as Nayak raised a complaint that Antulay as a Chief Minister misused the funds from the public. The case was taken to the court with the complaint filed by Nayak. The Supreme Court rejected Antulay’s argument that since he was an MLA and so a public servant, the previous sanction from the State Legislature was necessary and ruled that when he resigned from the post of CM, he has ceased to be a public servant and an MLA is not a public servant for any purposes. This decision was upheld in later cases.InAntulay v Nayakthe Supreme Court answered an important question; whether a private complaint in respect of the offences against the public servants cognisable by the court? The court held that the private complaint is cognisable regarding the offences by the public servants and held that :the right to initiate the proceedings cannot be whittled down, circumscribed or fettered by putting it into a straightjacket formula oflocus standiunknown to criminal jurisprudence, save and except specific statutory exception”.
Antulay’scase is of great importance because an ex-Chief Minister is being prosecuted on a private compliant for the first time. The resources and evidences were so strong on the part of the individual who brought in the complaint and it is highly sceptical that many can mobilise these resources.
As we have seen, in the present stage the status of CVC is weak since it is not a legislative body. In 2010 amending the CVC Act has been suggested, which provided for including the Vice-President of India as the chairman and a nominee of the Chief Justice of India as a member of the selection committee. The suggestion looks good as there will be a check mechanism from the side of the judiciary. It is always essential to have a strong and an independent ombudsman system having constitutional sanction which has its own autonomy. The status of the Vigilance Commission should be improved by giving it a legal status and by removing it from the clutches of the executive and politics as a strong mechanism is highly essential to fight the corruption and misuse of power by holders of high officers.
·M.P Jain,Indian Constitution Law, Wadhwa & Co. Nagpur, New Delhi, (7thedition) 2014
·Central Vigilance Commission Act 2003
·M.P. Jain & S.N. Jain,Principles of Administrative Law(Wadhwa & Co. Nagpur, New Delhi, Sixth edition, 2015
·I.PMassey,Administrative Law, Eastern Book Company, (eighth edition) 2013
·P.M .Bhakshi,Constitution of India(12thedition 2013)
·Biplab Kumar Lenin,,Handbook of General vigilance for officers
·Kartikeya Tanna (Tanna associates) , Research paper,Reforms in the Central Bureau of Investigation and Establishment of independent prosecuting entity
·The Hindu- Newspaper articles
# Biplab Kumar Lenin,,Handbook of General vigilance for officers.
# See http://www.thehindu.com/news/international/india-ranks-76-in-corruption-perception-index/article8158407.ece Last visited at: 23.04.2016
# See http://cvc.gov.in/cvc_back.htmlLast visited at: 23.04.2016
# Kartikeya Tanna (Tanna associates) , Research paper, Reforms in the Central Bureau of Investigation and Establishment of independent prosecuting entity.
# Vineet Narain & Others vs Union Of India & Another on 18 December, 1997
# See http://cvc.nic.in/introduction.htm Last visited at: 23.04.2016
# Resolution No.24/7/64-AVD dated 11.2.1964
# Last visited at: 23.04.2016; Personal Website of R.Kannan, on Vigilance Management in Public Sector Banks vis-à-vis the Role and Functions of the CVC.
# See http://cvc.nic.in/annualreport97/arch197.html Last visited at: 23.04.2016
# M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Sixth edition, 2015) p.998
# In terms of Government of India's Resolution dated 11.02.1964
# See http://cvc.nic.in/annualreport99/chap1.pdf Last visited at: 23.04.2016
# See http://cvc.gov.in/CVC_power.htm Last visited at: 23.04.2016
# Central Vigilance Commission Act 2003
# Section 8(1)(a)
# Section 8(1)(b)
# Section 8(1)(c)
# Section 8(1)(d)
# Section (8)(1)(e)
# Section 8(1)(f)
# Section 8(1) (g)
# Section 8(1)(h)
# Section 11
# Section 19
# Section 25
# Section 25
# Section 26 and Section 4C of DSPE Act, 1946
# Last visited at: 23.04.2016
# See http://archive.indianexpress.com/news/supreme-court-strikes-down-p-j-thomas-as-vigilance-chief/757204/ Last visited at: 23.04.2016
# The Hindu, 18thSeptember 2010, on “Call for safeguards in CVC selection process”
# See http://www.business-standard.com/article/finance/banks-delay-action-against-nearly-100-corrupt-officers-116041000146_1.html Last visited at: 23.04.2016
# AIR 1980 SC 1170
# The government findings in this case were first in accord with view of Vigilance commissioner. The government changed its mind later after consulting the Public Service Commission. The public service commission is a constitutionally created body and consultation with the PSC is required in disciplinary matters. see M.P Jain, Indian Constitution Law, Ch.31
# Nagraj Shivarao Kargaji v. Syndicate bank, AIR 1991 SC 1507
# Satyendra Chandra Jain v. Punjab national Bank, (1997) 11 SCC 306
# Superintendent of Police (CAI) v. Deepak ChowdharyAIR 1996 SC 186.
# AIR 1979 SC677
# AIR 1984 SC 684 (1984)
# Habibula Khan v State of Orissa,(1995) 2 SCC 437;Prakash Singh Badal v. State of Punjab,(2007) 1 SCC 1, para 19
# AIR 1984 SC 718
# The Hindu, 18thSeptember 2010, on “Call for safeguards in CVC selection process