Sunday, March 12, 2000		Lead Article

THE continuing media focus on the new Central Vigilance Commissioner and the reactions to his statements divert attention from questions relating to making the Central Vigilance Commission institutionally better adapted to the fulfilment of those very objectives for which it was given a statutory status. Politicians have questioned his jurisdiction to reopen the Hawala case through the Income Tax Department. Officers have not generally appreciated the projection of the names of those under vigilance proceedings on the website and the Internet.

It would, therefore, be necessary to recall the circumstances that led to the decision to give the Commission a statutory status. At the time of the Hawala case, the CBI had come under criticism for failing to investigate the cases properly because of the personalities involved. Also, a report by the Vohra Committee looked into the nexus between politicians, bureaucrats and criminals. These developments culminated in a public interest litigation(PIL) before the Supreme Court. The PIL, which sought the intervention of the Supreme Court, was through a petition under the title Vineet Narayan & Others versus the Union of India and Another in which Justice J.S. Verma gave his famous judgement. It issued a number of directions to the Government, touching upon the relationship between the Central Ministers in charge of their respective departments, the CBI, the Enforcement Directorate of the Ministry of Finance and the Central Vigilance Commission itself.

The commission was also given a machinery for getting departmental inquiries conducted and the authority to advise the disciplinary authority concerned as to the actions to be taken against erring public servants. The commission could also make recommendations for suitable amendments to procedures and practices which give rise to corrupt conduct.

By convention, the Government accepted the advice of the commission. However, the Government could also have rejected the commission’s advice. The commission’s annual report, drawing particular attention to cases where its advice had not been accepted or acted upon, was required to be placed before each House of Parliament along with the Government’s explanation for non-acceptance of the commission’s advice.

In order to give stature and independence to the commission, the Central Vigilance Commissioner was to be appointed by a Presidential Warrant on the basis of recommendations by the Prime Minister on the advice of the Cabinet Secretary. The CVC could not be removed or suspended from office without an inquiry into his conduct by a Judge of the Supreme Court as is the procedure in the case of the Members of the Union Public Service Commission. A minimum tenure of three years was also guaranteed. The Chief Vigilance Officers in the Ministries/Public Enterprises were to be appointed with the approval of the Central Vigilance Commission which had the powers to evaluate their work.

In pursuance of the Supreme Court directions to give to the CVC a statutory status, Ordinances No. 15 of August 25, 1998, No. 18 of October 27, 1998, and No. 4 of the January 8, 1999, were issued but could not be converted into law for various reasons. A new Bill was introduced in the Lok Sabha on December 28, 1999, and stands referred to a Joint Committee of Parliament. To cover the intervening period, the Cabinet passed a resolution on April 4, 1999, which substantially embodies the powers, functions and other provisions relating to the Central Vigilance Commission as proposed in the Ordinance no. 4 of 1999 that preceded it.

The provisions of the 1964 resolution of the Government setting up the commission and the subsequent ordinances do not substantially alter the commission’s jurisdiction, powers and the various provisions intended to ensure the independence and guarantee of tenure to the commission. The commission has jurisdiction on public servants as defined in the Prevention of Corruption Act, 1998, barring the non-official public servants which the PCA 1988 covers. Thus the purview of the commission is the same as in the resolution of 1964. It is, therefore, not surprising that the political leadership has questioned any intention that CVC may have of touching them.

In the resolution of 1964 and the proposed statute, there is the same ban on accepting employment under Government after retirement from the commission. In order to rule out individual predilections/arbitrariness, the new commission is a multi-member commission. This can have good as well as bad consequences depending on how the members pull on. There are other differences, some important, others not so important. For example, the appointment of Commissioners is to be made on the recommendations of a committee consisting of the Prime Minister, the Home Minister and the Leader of the Opposition.

The appointment thus in effect is an appointment by the Government in power and the level at which the recommendation is given is the same as obtained earlier. Likewise, the appointment of the Director, CBI, and the Director, Enforcement Directorate, is to be made by the Government on the recommendations of a committee of secretaries chaired

by the CVC. It is not certain how far this will ensure the selection of the right man. This innovation therefore may turn out to be not as path-breaking as it is assumed to be.

The major difference in the new role of the CVC is that he has been given the power of superintendence over the CBI. The term "superintendence" under Section 4 (I) of

the Delhi Special Police Establishment Act of 1948, however, as now interpreted by the Supreme Court, makes this power very general. It is doubtful whether it empowers the commission to supervise the CBI’s functioning in order to check its enormous and absolute power from making it vulnerable to the

very arbitrariness and corruption which it is intended to fight against.

Even in its new status and role, the commission’s recommendations are still only advisory as before. Even in the matter of sanction to the prosecution, the CBI objects to an examination of cases on merit. The CBI’s position is that so long as a case is not frivolous, the sanction ought to be automatic. Only the future can show whether the commission will prevent needless prosecution by going into the merits of the case or will routinely endorse the CBI recommendations. In the current atmosphere of trial by media and the pressure on the minds of both the CBI and the Vigilance Commission to preserve their image, there is a danger of the recommendation for prosecution becoming routine. Thus the sanctioning authority may find itself under a severe bind against any independent scrutiny on account of concurrent recommendations of the CBI and the CVC. This danger is especially serious considering that the investigator’s mind unconsciously but very strongly proceeds on the presumption of guilt of the suspect. This would be compounded by the fact that no matter what expert infrastructure it may have in- house, as recommended by the Supreme Court, an appreciation of the circumstances in which economic decisions have to be taken may be lacking in the police mind.

While the function of the Central Vigilance Commissioner to ensure that the punishment of the corrupt is made speedy and certain has been repeatedly emphasised, the other equally important aspect of the commission’s duty is to protect the honest and innocent against misapplied vigilance processes. This has

not found sufficient recognition and articulation in Government and even in the commission. In such a situation, the public servants that

will suffer are the ones who have taken a strong line against corrupt and influential subordinates and those who have taken bold decisions and risks and departed from procedures in order to ensure substantive justice.

As Vasant Sathe described more than a decade ago, the IAS has already become the ‘Indian Clerical Service’ unduly reverent to sterile procedures and, therefore, necessarily indifferent to what happens to the other man. It is this mentality which also contributes to delays which are a known cause of corruption. In such a situation, once a criminal case is registered against a dynamic public servant without prior screening, now forbidden by the Supreme Court order quashing the single directive providing for a preliminary screening, the affected Government official has no deliverance till his case gets cleared in the last round of appeal in the face of an impersonal, well-resourced and cantankerous litigant, namely, the State. In the process, he gets drained of his stamina and resources and vows never to be bold and decisive. It is this aspect which the CVC-CBI-Government relationship does not take care of.

Even the trial courts are apt to frame charges without an in-depth assessment of the police report with a view to ordering discharge and obviating needless trials. The CVC should, therefore, be charged with a duty of looking into cases that have failed not because of the incompetence of prosecution but because of inefficient or unfair investigation. This is especially important as the Minister’s departmental authority for remedying malfunction of criminal investigation is no longer available and also because the pressure for sanction to the prosecution as a matter of course from the investigating agency is relentless.

The large-scale devitalisation of the decision-making machinery, the incapacity for action and a pathetic withdrawal owe themselves to a paralyzing fear among public servants. The crucial issue is whether the

Commission can ensure free and fair investigation by the CBI followed by competent prosecution. This is especially important in the context of the vastly expanded CBI apparatus resulting in the loss of its elite character of the days of D.P. Kohli and F.V. Arul. Anyway, the CVC can certainly play a decisive and healthy role in scrutinising departmental proceedings so as to punish the corrupt and save the innocent.

The exercise of vigilance, the punishment of the guilty and the upholding of the upright cannot be ensured by the CVC alone. At present, the centralisation of vigilance processes in the CBI and the CVC has taken away from the sense of participation of senior officers in ministries. Unless the environment of institutional relationships ensures a prior exercise by each secretary, each head of the department and CMD

of public enterprise of the identification of the corrupt, of sending the right signals in his own department for a better work culture, a better treatment of the citizens at the cutting edge of the administration, vigilance processes will not produce the desired results, no matter what institutional "safeguards" are put on the statute book.

‘Civil servants have the fear of being exposed’

THE Central Vigilance Commissioner, N. Vittal discusses his crusade against corruption, in an exclusive interrview with K.V. Prasad.

You have started a new trend of making public, names of officials who have corruption charges against them. Yet how can you fight graft without having a system in place?

The website is a new instrument which is being used to fight corruption. The CVC can only recommend action and it is for the judiciary to decide.

Then why have you chosen to use the website ?

When the CVC recommended departmental action against officials, I was told that the chargesheets were not received in some cases. I now propose take follow-up action on this basis.

What could be the reason behind non-service of chargesheet ?

It could be ineffectiveness, which is bad, or what could be worse still is that it could be a cover-up effort. In some cases, the department takes five years to appoint an investigating officer and he takes another two years to proceed. And by that time the official concerned retires from service.

How can you check this by hosting names on website ?

What you see on the website is the second stage of the proceedings. In the first stage the CVC advises departmental action, while the second stage involves punishment. What I am doing is to institutionalise a system in position and give the public the ringside view of what is happening in government organisations.

It also helps to know that a person who has charges against him is occupying a sensitive position and he can be challenged. It is a self-cleaning mechanism to remove the nexus. In addition, putting names on the website acts as a deterrent. The civil servants have the fear of being exposed.

How long do you think it will last ?

It is not a nine-day wonder. Information Technology is being used in a systematic manner. Transparency leads to accountability which, in turn, heralds responsibility.

What other steps are you planning to fight graft ?

I have asked 60 departments of Government of India to publish a Citizen’s Charter and inform that they provide corruption-free service as part of the Charter. I hope someone moves the court so that principle of providing corruption-free service becomes a Fundamental Right. After all, public servants get their salary from tax-payers’ money.

Mahatma Gandhi said every common man needed salt so tax should not be levied on salt. Similarly, every person needs corruption-free service, so it should be made a Fundamental Right.

I am working on how I can mobilise non-governmental organisations, consumer organisations etc. to attack corruption.