The Central Vigilance Commission (cvc)
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. 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 finalising its report, the Santhanam Committee submitted its interim recommendations to the government in two parts. The first recommended the establishment of the Central Vigilance Commission. The second suggested conferring powers on the Commission, similar to those under Sections 4 and 5 of the Commission of Enquiry Act, 1952 so that it could undertake an inquiry into transactions where public servants were suspected of having acted improperly or in a corrupt manner.
The Committee envisaged a wide role for the CVC. It was not satisfied merely with the existing arrangements intended to investigate and punish corruption and misuse of authority by individual officers. “While this is indispensable, the Committee feels that the Central Vigilance organisation should be expanded so as to deal with complaints of failure of justice or oppression or abuse of authority suffered by the citizens though it may be difficult to attribute them to any particular official or officials.”
The Committee therefore recommended that the CVC should be vested with jurisdiction and power, inter alia, to “inquire into and investigate:
(a) Complaints against acts or omissions, decisions or recommendation, or administrative procedures or practices on the grounds that they are:
(i) wrong or contrary to law;
(ii) unreasonable, unjust, oppressive or improperly discriminatory;
(iii) in accordance with a rule of law or a provision of any enactment or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; or
(iv) based wholly or partly on a mistake of law or fact.”
The Government of India did not accept this recommendation. The Resolution with which the CVC was set up did not have this clause in its charter of functions. The reasoning for its exclusion was explained in these words: “The importance and urgency of providing a machinery for looking into grievances of citizens against the administration and for ensuring just and fair exercise of administrative power is fully recognised. But it is considered that the problem is big enough to require a separate agency or machinery and that apart from this the Central Vigilance Commission would be overburdened if this responsibility were to be placed upon it, and the Commission might as a result be less effective in dealing with the problem of corruption.”
The recommendation made by the Committee in the second part8 that the CVC should be given through suitable legislation certain powers to enable it to undertake enquiries remained unimplemented till 2003 when the CVC Act was legislated. Though these powers are now available with the Commission, they are not used by it
The Resolution of 1964
The Resolution of 1964 had two significant provisions.
♦ One, it defined the charter of the CVC. Its main function was to undertake an enquiry or to cause an enquiry or investigation to be made into any complaint of “corruption, misconduct, lack of integrity, or other kinds of malpractices or misdemeanour on the part of a public servant including members of the All India Services even if such members are for the time being serving in connection with the affairs of a state government.”
♦ The other was to maintain that though the Commission will be an attached office of the Ministry of Home Affairs, “in the exercise of its powers and functions it will not be subordinate to any Ministry/Department and will have the same measure of independence and autonomy as the Union Public Service Commission.”
The Hawala Case From 1964 to 1993, for nearly three decades, the CVC rolled along without making any visible dent on the problem of corruption in the country. A very important milestone in its history occurred when the Supreme Court pronounced its judgement in what is popularly known as the Hawala Case.
- The gist of allegations made in the writ petitions filed on 4 October 1993 was that: financial support was given to terrorists by clandestine and illegal means using tainted funds obtained through hawala transactions;
- the CBI and other agencies failed to investigate these properly and prosecute those who were involved in committing the offences; and
- this was done deliberately to protect persons who were influential and powerful.
SC Judgment and CVC
In this judgment court declared the Single Directive null and void and gave directions to establish institutional and other arrangements aimed at insulating the CBI and the Directorate of Enforcement of the Ministry of Finance from outside influences.
1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. 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 the recommendations made by the Committee. This shall be done immediately.
3. 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 overviewing 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 for investigation; progress of investigation; cases in which charge-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, specially those in which sanction has been delayed or refused.
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is transferred to it.
6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.
8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.
10. Selection/ extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall bee referred to the Appointments Committee of the Cabinet (ACC) for decision.
11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI’s in-house expertise, professionals from the Revenue, Banking and Security sectors should be inducted into the CBI.
12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI’s functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.
13. The Director, CBI shall be responsible for ensuring the filing of charge-sheets in courts within the stipulated time-limits, and the matter should be kept under constant review by the Director, CBI.
14. A document on CBI’s functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.
15. Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (ersonAG) or any other law officer in the AG’s office. 16. The Director, CBI should conduct regular appraisal of pnel to prevent corruption and/ or inefficiency in the agency.
16. Directions issued by the Court on the selection and tenure of the Head of the Enforcement Directorate of the Ministry of Finance
the government hurriedly promulgated the Central Vigilance Commission Ordinance, 1998 validifying Single Directive. The following main amendments were made in the principal Ordinance:
♦ The number of Vigilance Commissioners was reduced from four to three.
♦ The entry making the Secretary to the Government of India in charge of the Ministry of Personnel an ex-officio member was deleted.
♦ Selection of the Chairperson and members of the Commission would be done from civil servants and those “who have held office or are holding office in a corporation established by or under any Central Act or a Government company owned or controlled by the Central Government and persons who have expertise and experience in finance including insurance and banking, law, vigilance and investigations.”
♦ The Commission would no longer be authorised or required to grant approval to conduct investigations into allegations of corruption under the Prevention of Corruption Act, 1988 against certain categories of persons.
The Central Vigilance Commission Act, 2003:
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 central Act; government companies; societies; and local authorities owned or controlled by the Central Government; and for matters connected therewith or incidental thereto.
Important Features of the CVC Act, 2003
♦ The Commission shall consist of a Central Vigilance Commissioner (Chairperson) and not more than two Vigilance Commissioners (members).
♦ The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President on recommendation of a Committee consisting of the Prime Minister (Chairperson), the Minister of Home Affairs (Member) and the Leader of the Opposition in the House of the People (Member).
♦ The term of office of the Central Vigilance Commissioner and the Vigilance Commissioners would be four years from the date on which they enter their office or till they attain the age of 65 years, whichever is earlier.
♦ The Commission, while conducting the inquiry, shall have all the powers of a Civil Court with respect to certain aspects.
Commission’s Jurisdiction under CVC Act
♦ Members of All India Services serving in connection with the affairs of the Union and gazetted officers of the Central Government.
♦ Board level appointees and other senior officers upto two grades below the Board level, in the Public Sector Undertakings of the Central Government;
♦ Officers of the rank of Scale V and above in the Public Sector Banks; • Officers of the rank of Assistant Manager and above in the Insurance Sector (covered by LIC and GIC and four non-life insurance companies in the Public sector); and central Government.
♦ Officers drawing basic pay of Rs. 8700/- (Pre-revised) per month and above in autonomous bodies/local authorities or societies owned or controlled by the Central
Functions and powers of the Central Vigilance CommissionUnder the Central Vigilance Commission Act, 2003
♦ 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 – section 8(1)(a);
♦ 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 – section 8(1)(b);
♦ To inquire or cause an inquiry or investigation to be made on a reference by the Central Government – section 8(1)(c);
♦ 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 – section 8(1)(d);
♦ 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 – section (8)(1)(e);
♦ Review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988 – section 8(1)(f);
♦ Tender advice to the Central Government and its organizations on such matters as may be referred to it by them – section 8(1) (g);
♦ Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government – section 8(1)(h);
♦ Shall have all the powers of a Civil court while conducting any inquiry – section 11;
♦ 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 – section 19.
♦ 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 – section 25.
♦ 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 – section 25;
♦ 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) – Section 26 and Section 4C of DSPE Act, 1946.
Removal of Central Vigilance Commissioner and Vigilance Commissioner.-
1. Subject to the provisions of sub-section (3), the Central Vigilance Commissioner or any Vigilance Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on such ground be removed.
2. The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.
3. Notwithstanding anything contained in sub-section (1), the President may by order remove from office the Central Vigilance Commissioner or any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance Commissioner, as the case may be,-
(a). Is adjudged an insolvent; or
(b). Has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
(c). Engages during his term of office in any paid employment outside the duties of his office; or
(d). Is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or
(e). Has acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner.
4. If the Central Vigilance Commissioner or any Vigilance Commissioner is or becomes in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising there from otherwise than as a member and in common with the other members of an incorporated company
♦ In a major blow to the Centre, the Supreme Court in 2011 quashed the appointment of P.J. Thomas as Central Vigilance Commissioner (CVC). A Bench of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Swatanter Kumar set aside his appointment acting on the writ petitions filed by the Centre for Public Interest Litigation, the former Chief Election Commissioner, J.M. Lyngdoh, and others.
Mr. Thomas had been appointed CVC pursuant to a recommendation made by a high power committee (HPC) headed by Prime Minister Manmohan Singh. Leader of the Opposition in the Lok Sabha Sushma Swaraj, who was a HPC member, disagreed with the decision.
Justice Kapadia, who wrote the judgment, held invalid the HPC’s decision and pointed out that as of date, Mr. Thomas was accused No. 8 in the Kerala palmolein case pending in the Court of the Special Judge, Thiruvananthapuram, for offences under Section 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 and under Section 120B (conspiracy) of the Indian Penal Code.
The Bench, quoting an earlier judgment, said eligibility criteria would indicate that eligible persons should be without any blemish whatsoever and they should not be appointed merely because they were eligible to be considered for the post.
♦ The Lokpal and Lokayuktas Bill passed by Parliament received the assent of the President on 1st January, 2014 and came on the statute book as The Lokpal and Lokayuktas Act, 2013 (1 of 2014). The Act provides for establishment of a body of Lokpal for the Union and Lokayuktas for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith. The jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament, Groups A, B, C and D officers and officials of the Central Government. The Lokpal has powers to inquire or cause an inquiry or investigation into offences alleged to have been committed under Prevention of Corruption Act, 1988 by the categories of public functionaries prescribed in Section 14 of the Lokpal and Lokayuktas Act, 2013.
The Lokpal and Lokayuktas Act, 2013 has amended some provisions of CVC Act, 2003 and the Commission has been empowered to conduct preliminary inquiry into complaints referred by Lokpal in respect of officers and officials of Groups B, C & D, besides Group A officers. The Commission’s additional functions would include conducting preliminary inquiry into the complaints referred by Lokpal in respect of Gr. ‘A’, ‘B’, ‘C’& ‘D’ officials for which a Directorate of Inquiry 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. Further, as per mandate, the Commission is to cause further investigation into such Lokpal references in respect of Gr. ‘C’& ‘D’ officials and decide on further course of action against them.