Introduction
“There can be no faith in government if our highest offices are excused from
scrutiny — they should be setting the example of transparency” – Edward
Snowden
The misuse of powers by the bureaucrats, politicians, government officials
and public servants to meet their personal ends can be traced back to the
British regime. Prior to 1947, democracy was a myth and corruption was
deeply embedded in the roots of the system. The Officials Secrets Act of
1923, introduced by the British government, criminalised revelation of any
State-related information to the citizens, aiding the continuation of the
malpractices in the country.
Post-independence, Prevention of Corruption Act 1947, was passed by the
Government to combat the prevailing corruption thriving in the
administration. The Prevention of Corruption Committee also known as
Santhanam Committee constituted in 1963, recommended setting up of a
Central Vigilance Commission to scrutinise the governmental activities. This
was in response to the increasing misuse of powers by the political figures
and governmental entities, with an aim to ensure their proper functioning.
The Corruption Perception Index 2019 released by Transparency
International, ranks India as the 80th least corrupt country out of the bunch
total of 180 countries. The statistics, clearly depict the picture of the existing
corruption, mainly attributed to the governmental and corporal entities. This
highlights the importance of a centrally coordinated statutory authority in the
form of the Central Vigilance Commission keeping a check on the officials and
their activities, thereby contributing to good governance.
Central vigilance commission
Central Vigilance Commission is an apex autonomous institution, conferred
with the power to review and monitor the governmental activities to ensure a
corruption-free environment. The authority has been accorded with a
statutory status in 2003 by the Central Vigilance Commission Act.
Formulation and the historical background
The pre-independent era observed the setting up of a Special Police
Establishment in 1941, by the Indian Government to keep a check on the
corrupt practices during World War II. The continuation of these malpractices
even after World War II led to the introduction of Special Delhi Establishment
Act in 1946 with extended scope and jurisdiction. All the UTs and the States
with the consent of their respective governments came under its jurisdiction.
The authority operated at the Central level under the supervision of the
Home Ministry.
However, its powers were restricted to investigate offences covered under
Prevention of Corruption Act, 1947, selective sections of Indian Penal Code
and 16 other central Acts. This called for the need to establish a centralised
Police authority called Central Bureau of Investigation, on the
recommendations of Santhanam Committee in 1963. The powers of this
authority were extended to include probes into frauds related to
governmental entities, passport related frauds and major crimes involving
professional groups and organisations.
The Central Vigilance Commission, an apex sovereign institution was
established in 1964 by a resolution dated 11.2.1964 to assist the
governmental institutions in their vigilance scheme. It was in 1997 that the
Supreme Court in the case of Vineet Narain & Others vs. Union of India &
Another, 1 SCC 226, removed CBI from the purview of the Central
Government and placed it under the supervision of CVC. The Court
invalidated the provision that mandated the Central Government’s approval
for the CBI to conduct investigations against higher officials, to ensure an
unbiased probe.
The Commission was granted with the statutory status by the ordinance of
1998 that turned into Central Vigilance Act, 2003. It extended the scope of
powers exercised by the Commission and made it a supervisory authority to
the CBI.
Constituent members
Section 3 of the CVC Act, 2003 provides for the structure of the Commission.
It is chaired by a Central Vigilance Commissioner who is assisted by two
other Vigilance Commissioners as the members. The chairperson and the
members should either have held a civil post in the Union or a position in the
government-owned or controlled corporation. The person to be appointed
should have expertise in the matters of banking, finance, investigations and
administrations. A Secretary may be appointed by the Government if the
Commission specifies the need for it by such a regulation.
Appointment and removal
The appointments to the Commission (Section 4) are made by the President
on the recommendations of a committee comprising the Prime Minister acting
as the chairperson and the Home Minister and the Leader of Opposition as
the members. If in case the House lacks such a leader, then the leader of the
largest group in the opposition would be deemed as the member of the
Committee. The section further provides that any kind of vacancy in the
Committee would not render these appointments invalid.
The President is further authorised, by the virtue of Section 6, to remove the
members and the chairperson of the Commission from the office in the cases
of insolvency, a conviction in an offence involving moral turpitude,
incapability in holding the post or having an additional financial interest or
employment. Such removal is based on the grounds of misbehaviour or
incapacity proved by the Supreme Court. The employment of the profits or
benefits by the members, to their personal interests, arising out of
Government contract, of which the members are a part of, would constitute
misbehaviour.
Role and functions
The functions and powers of the Commission with respect to CBI and
vigilance are envisaged under Section 8 of the Act. It is empowered to
supervise the investigations led by the CBI in matters involving the
commission of offences under the Prevention of Corruption Act, 1988 or
offences committed by public servants under CRPC, 1973. The Commission
too can conduct a probe into these matters in case a Government or a State-
controlled corporate employee is involved, on a reference made by the
Central Government. It is also entitled to investigate into the complaints
made against public officials alleging the commission of these offences.
It directs the functioning of the CBI by keeping a close check on the progress
of the investigations conducted, thereby ensuring proper discharge of its
duties. The Commission is further authorised to monitor the administration of
governmental Departments, Ministries and corporations. However, the
supervision exercised should not interfere with the administration of these
institutions. The Central Government or any of its institutions can refer to the
Commission in order to seek its advice over matters financial, banking and
administrative matters.
Main issues and controversies
Over the years, the office of the Chief Vigilance Officers and the Commission
has encountered issues concerning transparency and independence from the
executive in the exercise of its powers.
Appointment of PJ Thomas’s controversy
The subject of the appointment of the CVO became a controversy in 2010 by
the appointment of PJ Thomas as the Chief Vigilance Officer. The
appointment was recommended by the then Prime Minister Manmohan Singh
and the Union Home Minister as the members of the High Powered
Committee constituted for this purpose. However, the Leader of the
Opposition Sushma Swaraj questioned such an appointment citing the
association of PJ Thomas with the Palmolein Oil Import Scam in the years
1991- 1992. A charge sheet was filed against him, featuring him as the
eighth accused, by the Anti Corruption Bureau.
Public Interest Litigations regarding the same were filed by the Centre for
Public Litigation in the Supreme Court. The Court quashed the
appointment made by the HPC on the grounds that the proper considerations
were not made while making such an appointment. The Court also placed a
sense of moral obligation on the Committee to take into the considerations
the objections made by the members based on reasonable grounds. Thus the
unanimity of the Committee is not a necessary requirement but a moral
obligation. The judgement also indicated the need for transparency as a
qualification for the post of CVO.
Public sector banks under the scope of vigilance
of CVC
The RBI in 2017, sanctioned necessary approvals allowing CVC to conduct
investigations against the employees of the private sector banks. This was
followed by the Supreme Court’s decision in 2016 that included employees of
the private banks operating under the authority of RBI, in the definition of
“public servants” under the Prevention of Corruption Act, 1988. This was
done to ensure smooth probity in the graft cases in private banks.
Cases
Case of Sumit Kumar Banerjee v. State of West
Bengal
In the case of Sumit Kumar v. State of West Bengal, 1980 AIR 1170, charges
were framed by the Enquiry Officer against the appellant, who was a member
of Indian Administrative Services. The report was consulted with the State
Vigilance Commission. Upon considerations, the Disciplinary Authority( State
Government), imposed punishments on the appellant. In an appeal to the
Supreme Court, the appellant contended that the ultimate findings and the
conviction cannot be based on reports of the Enquiry Officer consulted with
the State Vigilance Commission, having no statutory authority.
The Supreme Court held that the punishment imposed on the appellant was
based on the findings of the Disciplinary Committee. The mere consultation
of the authority with the Vigilance Officer does not render it invalid.
The judgement gathered a plethora of criticisms from the jurists. The jurists
were of the opinion that the process of consultation by the State violated the
provisions of natural justice. The ultimate findings of the State were
influenced by the Vigilance Commission’s opinion which went against the
principles of natural justice. The jurists further opined that taking no notice
of the findings submitted by the Commission would render the purpose of its
establishment meaningless.
A.R. Antulay’s case
In the case of R. S. Nayak vs. A. R. Antulay, 1984 AIR 684, the appellant
filed a complaint approved by the sanction of the Governor, against the
then Chief Minister of Maharashtra( respondent ). The complaints alleged the
respondent to be guilty of misallocation of public funds and corruption.
However, the respondent resigned on the same date and continued to serve
as an MLA. The respondent contended that a sanction as provided
under Section 6 of the PCA, 1947 is necessary to proceed against a public
servant.
The two main issues raised in front of the Court were:
Whether an MLA can be called a public servant as under Section
21, IPC?
Whether sanction as provided under Section 6 of the 1947 Act, a
necessary requisite to proceed against MLA?
The Supreme Court, by looking at the historical evolution of Section 21 and
closely examining the contextual definition of a “public servant”, concluded
that an MLA cannot be construed as a public servant. The Court further held
that upon resignation from the post of CM, the respondent ceased to be a
public servant. The provisions of Section 6 of the 1947 Act cannot be
attracted as when the offence was committed, the respondent was a public
servant but when the Court was called to take the notice of it, he resigned.
The case became a landmark as it was for the first time that an ex-CM was
prosecuted on the basis of a private complaint.
Conclusion
The corruption measures and the attempt of the Central Government to build
transparency by establishing a centralised, independent apex institution have
witnessed evolutions over time. From an executive organ, established by a
governmental resolution to a statutory authority by the virtue of CVC Act,
2003, the powers conferred upon it have expanded tremendously. The
Government has extended the powers and authority to such an extent that
the scope of the vigilance of the Commission now includes private sector
banks. The issues encountered by the Commission have been dealt with by
the legislators and Courts to ensure transparency and efficient corruption-
free administration. Thus, a huge evolution can be seen in the powers and
jurisdiction of the Commission since the time of its formation.
References
https://www.brainyquote.com/quotes/edward_snowden_551869
https://tradingeconomics.com/india/corruption-rank
https://indiankanoon.org/doc/1203995/
http://legislative.gov.in/sites/default/files/A2003-45.pdf
http://legislative.gov.in/sites/default/files/A2003-45.pdf
http://legislative.gov.in/sites/default/files/A2003-45.pdf
http://legislative.gov.in/sites/default/files/A2003-45.pdf
https://daily.bhaskar.com/news/NAT-IDP-palmolein-oil-import-
scam-the-case-against-pj-thomas-1902746.html
https://www.thehindu.com/opinion/lead/Lessons-from-the-Thomas-
verdict/article12943837.ece
https://www.indiacode.nic.in/bitstream/123456789/2379/1/A1923-
19.pdf
http://www.code.mp.gov.in/WriteReadData/Pdf/
Act_1947_0002_Pdf_F173_English.pdf
