Introduction

Mr. Sanjay Kothari, former secretary to the Department of Personnel and Training (DoPT) and secretary to the President of India took oath as the new Chief Vigilance Commissioner (CVC) in April this year. The office of CVC was vacant since June 2019 and there has been a lot of current buzz around the selection of the CVC.

Before going into much detail about the manner in which CVC is appointed let’s first talk about the office of CVC, its functions and powers and constitutional basis.

 

What is CVC and how did it come into effect?

A committee was formed by Lal Bahadur Shastri in 1962 on anti-corruption commonly known as 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.

Vigilance means to carry a watchful eye and at that time there was no other institution or program that was functioning as the monitor for the government.

Hence, in February 1964 Central Vigilance Commission (CVC) was set up by the government as the apex vigilance institution. The first Chief Vigilance Commissioner appointed was Nittoor Srinivasa Rau.

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 autonomous status and has advisory powers.

1. It is not controlled by any department or ministry and is only responsible to the Parliament.
2. It can employ superintendence over CBI concerning investigation under Prevention of Corruption Act, 1988 and CrPC for specified categories of Public Servants.
3. It gives direction and reviews the progress of investigations carried out by CBI in relation to Prevention of Corruption Act.
4. It receives complaints on corruption and has to recommend suitable action.
5. It has to furnish impartial advice to authorize in different stages of enquiry, investigation, appeal, review etc.
6. To exercise supervision and a general check over corruption in different ministries and departments.
7. To undertake or cause an inquiry into complaints received under the Public Interest Disclosure and Protection of Informer and recommend appropriate action.
8. To provide 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 case (Vineet Narain & ors. v. Union of India), 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.

 

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 vide Government of India resolution 11.02.1964. The aim was to address corrupt practices within the government.

After that some additions were made to it through later legislations and ordinances. Later a PIL was filed by Vineet Narain and because of its decision a ordinance was promulgated by the Government of India in 1988. This Ordinance of 1988 conferred a statutory status to the CVC.

Subsequent to this, to replace the above Ordinance, a bill was introduced in Lok Sabha by the Government known as the CVC bill though this bill wasn’t much success.

The bill was reintroduced in the Parliament a year later in 1999 but it kept sitting there until 2003 at which time it received the consent of both the houses and assent of the President and came out as a duly passed Act. The powers and functions set out in the resolution of 1964 merged with the Act.

The Act of 2003 laid down the formation and constitution of CVC and guidelines as to how it will operate. It also laid down the jurisdiction of CVC by identifying the group of services, agencies and organizations on which it would operate.  The earlier commission was a single member body but the CVC act of 2003 made it a multi member 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 whereby 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 for any disclosure of any allegation of corruption.

CVC now has extended jurisdiction over union territory of Jammu and Kashmir and for this the nodal ministry is set as Department of Personnel and Training (DoPT).

 

Manner of appointment

Let’s dive in a little more detail about the manner of appointment of CVC.

The procedure for appointment of Central Vigilance Commissioner is based on the statutory provisions of the CVC Act, 2003 and the directives of the Supreme Court.

Step 1 – Inviting the names of persons to be considered for appointment as Central Vigilance Commissioner or Vigilance Commissioners by the Cabinet Secretary /Secretaries of the Ministries/Departments of Government of India.

Step 2 – All the applications/names so received are scrutinized and shortlisted by the Secretary, DOPT and approved by MOS(PP).

Step 3 – The names of 5 persons shortlisted by MOS(PP) shall be placed before the selection committee. The Selection committee consists of the Prime Minister as its chairperson, and the Minister of Home Affairs and the Leader of the Opposition in Lok Sabha, as its members.

Step 4- The person recommended by the selection committee shall be appointed by the President by warrant under his hand and seal.

 

Prior to appointment of the current CVC, the manner in which CVC is appointed was in issue due to the fact that a member of the search committee for the CVC post was also an applicant and was even shortlisted for it. It was alleged that Finance Secretary Rajiv Kumar was a member of the search committee and turned out to be an applicant for the CVC. Later, he was even shortlisted for the post of CVC by the search committee.

But in the end, Mr, Sanjay Kothari is appointed as the new CVC.

 

Landmark cases involving CVC

1. Vineet Narain & ors. v. Union of India: 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 PILs ensued under article 32 of the Indian Constitution.

The Supreme Court was of the view that the CBI has 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: Appellant sought clarification in his RTI as to whether there was a 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 appellant and he sought the intervention of the commission. The commission elaborated the powers of the Central Public Information officer in this case.
3. Centre for PIL & Anr. V. Union Of India & Anr: This case dealt with the lack of transparent structure in appointment of Chief Vigilance Officer. It came into highlight 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 appointment was quashed by the Supreme Court stating the relevant materials were not considered while deciding for appointment.

 

Critical analysis

CVC has various shortcomings and deals with quite a few limitations.

It is an advisory body which does not have any adjudicatory functions and for this it is often treated as a powerless agency.

The Commission has no investigative powers hence can’t investigate any complaints itself and has to rely on other investigating agencies.

It can’t 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), he is not bound to act or base his conclusions on that advice.

The Supreme Court has held that the Central Government and the CVC can’t dictate or direct the disciplinary authority as to how it should exercise its power and what punishment it should 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 alleged corruption case of AIIMS. What happens when complaints of corruption are received against the CVC itself?

 

Conclusion

India has shown a 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. As we have seen, CVC is weak in structure as it was carved out of an Ordinance and was not put in action by the legislature. There was a 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 executives and politicians.

By Manan Agrawal 

(via Lex Jura Law Journal)