Central Vigilance Commission: Statutory Status, Functions, Superintendence over the CBI and its Relation to the Lokpal

📖 Vineet Narain v. Union of India, (1998) 1 SCC 226

Facts: Public interest petitions alleged that the investigation into the Jain hawala diaries, which implicated senior politicians and officials, had been deliberately stalled by the Central Bureau of Investigation and other agencies. The material suggested that the agencies had failed to act because the persons implicated were in a position to influence them, and that the agencies' subordination to the very Ministers they might have to investigate made independent action impossible.

Held: The Supreme Court used the procedure of continuing mandamus, keeping the petitions pending and monitoring progress, and then issued directions to insulate the investigating agencies from extraneous influence, to operate until legislation was enacted. It directed that the Central Vigilance Commission be given statutory status; that the CVC exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to offences under the Prevention of Corruption Act; that the Director of the CBI be appointed on the recommendation of a committee headed by the Central Vigilance Commissioner and be given a minimum tenure of two years irrespective of the date of superannuation, so that he is not removable at will; that the single directive requiring prior approval before investigating senior officers be set aside; and that a Selection Committee recommend appointments to the Commission. The Court held that these measures were necessary because the rule of law requires that investigation into offences be free from the influence of those who may be investigated.

Ratio: The Court directed statutory status and independence for the Central Vigilance Commission and security of tenure for the Director of the CBI, on the principle that an investigating agency subordinate to those it may investigate cannot function. The Central Vigilance Commission Act, 2003 enacted these directions.

The Central Vigilance Commission Act, 2003

The Commission consists of a Central Vigilance Commissioner as Chairperson and not more than two Vigilance Commissioners. They are appointed by the President by warrant under his hand and seal, on the recommendation of a Committee consisting of the Prime Minister as Chairperson, the Minister of Home Affairs and the Leader of the Opposition in the House of the People. The term of office is four years from the date of entering upon office or until the age of sixty-five, whichever is earlier, and a person who has held office is not eligible for reappointment to the Commission or for any further employment under the Government of India or of a State. The Central Vigilance Commissioner may be removed by the President on the ground of proved misbehaviour or incapacity only after the Supreme Court, on a reference by the President, has held an inquiry and reported that he ought to be removed, and may otherwise be removed for insolvency, conviction, paid employment, infirmity or acquisition of a financial interest prejudicial to his functions. The salary and conditions of service are those of the Chairman and Members of the Union Public Service Commission respectively, and may not be varied to disadvantage after appointment. The expenses of the Commission are charged on the Consolidated Fund of India.

Superintendence over the DSPE

In so far as it relates to the investigation of offences under the Prevention of Corruption Act, 1988, with power to give directions, though not to require a particular case to be investigated in a particular manner

Review of progress

Of investigations conducted by the DSPE into such offences, and of applications pending for sanction to prosecute

Advice to the Central Government

On vigilance matters generally, and on the disciplinary cases of officers of the prescribed level

Inquiry and investigation

Into complaints against specified categories of public servants, either itself or through an agency

Superintendence over vigilance administration

Of ministries, departments, corporations and Government companies, through Chief Vigilance Officers

Tendering advice

First stage advice before proceedings are initiated and second stage advice after the inquiry report, on the penalty to be imposed

Appointment of the CBI Director

The Central Vigilance Commissioner chairs the committee recommending the appointment of the Director of Prosecution and other senior officers, as the Act provides

Whistle-blower complaints

Designated as the competent authority under the Public Interest Disclosure resolution and the Whistle Blowers Protection Act, 2014

Annual report

To the President, laid before each House of Parliament, with a memorandum on cases where its advice was not accepted

📖 Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682

Facts: Section 6A of the Delhi Special Police Establishment Act, 1946, inserted in 2003, provided that the Establishment shall not conduct any inquiry or investigation into an offence under the Prevention of Corruption Act alleged to have been committed by an officer of the level of Joint Secretary and above, or by officers of corporations and Government companies appointed by the Central Government, except with the previous approval of the Central Government. The provision reproduced in statutory form the single directive that had been set aside in Vineet Narain.

Held: A Constitution Bench struck down section 6A as unconstitutional and violative of Article 14. It held that the classification of public servants by rank, for the purpose of deciding whether they may even be investigated, has no rational nexus with the object of the Prevention of Corruption Act, which is to detect and punish corruption: the status of the accused has nothing to do with whether an offence was committed, and corruption by a senior officer is at least as damaging as by a junior one. The Court held that the provision impedes the tracking down of corruption at higher levels, destroys the very object for which the Act was enacted, and offends the principle that all persons accused of the same offence are to be treated alike. It further held that the provision could not be justified as protecting honest officers from harassment, since that concern is met by the requirement of sanction at the stage of prosecution rather than by a bar on investigation itself.

Ratio: A requirement of prior executive approval to investigate senior officers offends Article 14, since classification by rank has no nexus with the object of detecting corruption. Protection against harassment operates at the stage of sanction, not by barring investigation.

Origin

Executive resolution 1964; statutory from 2003 on the directions in Vineet Narain

Proposed 1966; established by the Act of 2013

Composition

Central Vigilance Commissioner and up to two Vigilance Commissioners

Chairperson and up to eight Members, at least half judicial

Appointment

President on the recommendation of the Prime Minister, Home Minister and Leader of the Opposition

President on the recommendation of a Committee including the Speaker, the Chief Justice of India and an eminent jurist

Tenure

Four years or sixty-five

Five years or seventy

Jurisdiction over Ministers and MPs

No

Yes, including the Prime Minister with exclusions

Jurisdiction over officials

Yes, chiefly senior officers and vigilance administration generally

Yes, all Groups, with Groups C and D routed through the Commission

Principal function

Advisory and supervisory over vigilance administration

Inquiry, investigation and prosecution of corruption offences

Prosecution

No prosecution wing

Prosecution wing, and grants its own sanction

Relation to the CBI

Superintendence over the DSPE in Prevention of Corruption Act matters

Superintendence in matters referred by the Lokpal

Relation to each other

Reports to the Lokpal on action taken in matters referred to it by the Lokpal

May refer complaints against Groups C and D to the Commission

⚠ Two bodies supervising the same agency in different matters

The relationship between these institutions is easier to hold if one notices what each was created to solve. The Commission was the answer to a departmental problem: vigilance administration inside ministries was being conducted by the ministries themselves, so a central supervisory body was needed to advise on proceedings and to oversee the investigating agency. The Lokpal was the answer to a political problem: allegations against Ministers and Members of Parliament could not be pursued at all, because the executive controlled both investigation and sanction. That is why the Commission is chiefly advisory and supervisory over officials, while the Lokpal inquires, prosecutes and sanctions and reaches the political executive. Both exercise superintendence over the Central Bureau of Investigation, but in different classes of matter, and the Act of 2013 makes the Commission report to the Lokpal in matters the Lokpal has referred.