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On 25th April 2020, retired IAS officer Mr. Sanjay Kothari took oath as the new Chief Vigilance Commissioner (CVC). He was the Secretary to current President Ram Nath Kovind before he took up the position as a Commissioner. A few days after this, eminent banker Suresh N Patel was appointed as the Vigilance Commissioner. His appointment has brought the commission in full strength with two vigilance Commissioners and one Central Vigilance Commissioner. And in the most recent news, CVC has extended its jurisdiction over union territory of Jammu and Kashmir for which the nodal ministry is set as Department of Personnel and Training (DoPT).
What is CVC and how did it come into effect?
A committee for Prevention of Corruption was formed by Lal Bahadur Shastri in 1962 and it was headed by Mr. K. Santhanam. It was commonly referred to as the Santhanam Committee. In its report in 1964, the committee inter alia recommended setting up of a Central Vigilance Commission to advise and guide the Government and its agencies in vigilance. This meant to carry a watchful eye at the time where there was no other institution or program that was functioning as a monitor for the Government.
Hence, in February 1964, the Central Vigilance Commission (CVC) was set up by the Government as the apex vigilance institution. Nittoor Srinivasa Rau was appointed as the first Commissioner. The idea behind CVC was to create a monitoring institution, free from any control of the executive which can aid and advise the Government and all its organizations in planning and reviewing their vigilance work
Functions and powers of CVC
CVC enjoys an autonomous status and has advisory powers.
- It is not controlled by any department or ministry and is only responsible to the Parliament.
- It can employ superintendence over CBI concerning investigation under Prevention of Corruption Act, 1988 and the Criminal Procedure Code for specified categories of Public Servants.
- It gives direction and reviews the progress of investigations carried out by CBI in relation to the Prevention of Corruption Act.
- It receives complaints on corruption and advises suitable actions.
- It furnishes impartial advice to authorize in different stages of enquiry, investigation, appeal, review etc.
- It exercises supervision and a general check over corruption in different ministries and departments.
- It conducts an inquiry into complaints received under the Public Interest Disclosure and Protection of Informer and advises accordingly.
- It provides the Government with consultation for making rules to govern the disciplinary cases of the members of All India Services.
After the fallout in the Vineet Narain & Ors. V. Union of India (1 SCC 226), the Supreme Court ruled that the Director of CBI shall be appointed on the recommendations of a committee which is to be headed, among others, by the Chief Vigilance Commissioner. This decision further increased the power and position of CVC as an independent body.
The term public servant means Civil Servants of certain categories only, therefore the power of superintendence of CVC is limited by restricting the definition of a public servant. The CVC has the power of the civil court, trying a suit under the CPC (Code of Civil Procedure). CVC has also been entrusted with powers to make recommendations for the appointment of Director of Enforcement, Superintendent of Police and Director of Delhi Special Police Establishment.
The Central Vigilance Commissioner can be removed from the office by the order of the President on the grounds of misbehaviour, but only after the Supreme Court has held an inquiry and recommended action against him. Despite the exception of involvement of the Supreme Court in the removal process of the Commissioner, the President may also order the removal of the Central Vigilance Commissioner or the Vigilance Commissioner if-
- They are adjudged as an insolvent.
- They have been convicted of an offence which involves the question of moral turpitude.
- Indulged in any paid employment during the term of their office, outside their duty.
- According to the opinion of the President, unfit to hold the post and continue in office by the reason of infirmity of mind or body.
- Acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner.
Constitutional basis of CVC
The mandate of the commission is based on the report of the Santhanam committee formed for prevention of corruption. CVC came as an apex body vides Government of India resolution dated 11.2.1964. The main aim was to address corrupt practices within the Government.
After that, some additions were made to it through Legislation and Ordinances. Later, a Public Interest Litigation was filed by Vineet Narain. Based on the decision given in this case, the Government of India passed an ordinance in 1988. This Ordinance of 1988 conferred a statutory status to the CVC. After this, to replace the above Ordinance, a bill was introduced in Lok Sabha by the Government known as the CVC bill. But this bill was not passed.
The bill was re-introduced in the Parliament a year later in 1999, but there were no developments 2003. In 2003, the bill received the consent of both the houses thereby being termed as an Act. The powers and functions set out in the resolution of 1964 were merged with the Act. The Act of 2003 laid down the formation and constitution of CVC and guidelines as to how it should operate. It also laid down the jurisdiction of CVC by identifying the group of services, agencies, and organizations on which it would operate. The commission that was set-up earlier was a single-member body, but the CVC Act of 2003 made it a multimember body which would have one Chief Vigilance Commissioner (CVC) and two Vigilance Commissioners (VCs).
The Lokpal and Lokayuktas Act passed in 2013 further amended the CVC Act 2003 thereby empowering the commission to carry out a preliminary enquiry into the complaints referred to it by the Lokpal. Further, The Whistleblowers Protection Act, 2014 made the commission a competent authority by empowering it to receive complaints about any disclosure of allegations of corruption.
Landmark cases involving CVC
- Vineet Narain & Ors. V. Union of India [1 SCC 226]: The main concern of this case was the Hawala scandal which involved corruption charges of bribery on various high-ranking Indian politicians and bureaucrats received from the source linked to a terrorist. This case resulted in quite a buzz in the public and various Public Interest Litigations ensued under Article 32 of the Indian Constitution.
The Supreme Court was of the view that the CBI had shown mass incompetence by failing to investigate public corruption. The court laid down some guidelines to ensure the independence of the CBI and included it under the supervision of CVC.
2. Shailendra Grover V. Central Vigilance Commission [Appeal No. CIC/CVCOM/A/2016/308445/MP]: Appellant sought clarification in his RTI as to whether there was monitoring on the part of CVC over CBI cases related to Army officers and for which sanction is sought under Prevention of Corruption Act and whether CVC exercised administration over Delhi Police Special Establishment. The reply provided by the officer was not found satisfactory by the appellant and he sought the intervention of the commission. The commission elaborated the powers of the Central Public Information officer in this case.
- Centre for Public Interest Litigation & Anr. V. Union of India & Anr [(2011) 4 SCC 1-A]: This case dealt with the lack of transparent structure in the appointmentofChief Vigilance Officer. The case was filed when PJ Thomas became the Chief Vigilance Commissioner and it resulted in a controversy as Sushma Swaraj objected to this selection citing pending charge sheet against Mr. Thomas. Later, the Supreme Court quashed the appointment stating that requisite materials were not considered for appointment of a Chief Vigilance Officer.
CVC has various shortcomings and deals with quite a few limitations. CVC Acts as an advisory and a recommendatory body, so the Central Government is free to accept or reject any of its advice in case of corruption. It does not have any adjudicatory functions. The power of CVC is limited to conduction investigation in disciplinary cases; it does not deal with criminal cases which limits the scope of CVC. The President appoints the Central Vigilance Commissioner and the Vigilance Commissioner based on the recommendation of a panel which is headed by the Prime Minister. Though the leader of Opposition is a member of the panel, the appointment becomes controversial in some instances. CVC has superintendent power over CBI, but it cannot direct it to function in a particular manner and does not have any power to appoint, transfer or suspend CBI officers. Therefore, CVC is relatively an independent body in its functioning but is given limited powers and resources for proper functioning. CVC can Act as a bridle against corruption, but the inadequate resources compared to the number of complaints it receives seems to destroy the purpose of setting up of anti-corruption body and it becomes an ineffective deterrent against corruption.
The Commission cannot investigate any complaints itself and has to rely on other investigating agencies. It cannot authorize or enforce any sanctions for criminal prosecution. It is also a big misfortune that though the commission is empowered to render advice to the disciplinary authority (set up under Prevention of Corruption Act), it is not bound to act or base its conclusions on that advice. The Supreme Court has held that the Central Government and the CVC cannot dictate or direct the disciplinary authority as to how it should exercise its power and what punishment should it impose. These kinds of decisions also undermine the leverage that CVC holds.
An RTI was filed by a whistleblower, Sanjiv Chaturvedi which received a vague response that there are no current guidelines to probe into the complaints of corruption and other misconduct against CVC and other Vigilance officers. Chaturvedi had written to the then-president in 2007 asking him to take legal action against the then CVC who recommended closure of probe in the alleged corruption case of AIIMS. All the shortcomings have affected the efficiency of the corruption watchdog.
India has shown rapid growth in various sectors in the recent past, but with the ongoing economic crisis, there is no better time to look into shortcomings of the CVC. The Central Vigilance Commission has been constituted as an institution of vigilance to address the causes of corruption and conduct a preliminary inquiry into offences alleged to have been committed under the Prevention of Corruption Act. The commission acts as an anti-corruption mechanism to abate the misuse of an office held by the public servant. It has the status of an autonomous body, yet it fails to act independently in certain instances because of the involvement of the Government. The commission being relatively independent lacks the resources and the power to act against corruption.
The legal foundation of CVC is weak as it was carved out of an Ordinance and was not put in action by the legislature. There was talk of amending the CVC Act in 2010 which proposed the Vice President of India as the Chairman and a nominee of the Chief Justice of India as the member of the selection committee. The suggestion holds good as there will be a review mechanism from the side of the judiciary. It is imperative to have a good vigilance system which has the power of sanction and full autonomy. There is a need to remove the Commission from the clutches of executive and politicians.
Authors: Manan Agrawal from Faculty of Law, University of Delhi and Nivedita Yadav from Vivekananda Institute of Professional Studies.
Editor: Harinie.S from Symbiosis Law School Hyderabad.