ADMINISTRATIVE STRUCTURE AND PROCEDURES FOR CURBING CORRUPTION
Before proceeding further, we need to understand the existing systems for checking corruption. In 1955, the Administrative Vigilance Division was set up in the Ministry of Home Affairs as central agency with overall responsibility for anti-corruption measures. Most of its functions were later transferred to the Central Vigilance Commission. The role of the Administrative Vigilance Division now is to formulate and implement policies of the Central Government – covering vigilance, integrity in public services, and anti-corruption measures.
Following the recommendations of the Committee on Prevention of Corruption [popularly known as Santhanam Committee], the Central Vigilance Commission was set up in 1964. It was created through a Government of India Resolution or as a result of an executive decision. After the Supreme Court judgement in Vineet Narain vs. Union of India, the Commission was accorded statutory status in 1998 through “The Central Vigilance Commission Ordinance, 1998”. Subsequently in 2003, parliament passed the Central Vigilance Commission Act in 2003. An organization is said to have a statutory status if it is created as a result of legislation and not by a government resolution, that is to say, an executive order.
The Central Vigilance Commission consists of a Central Vigilance Commissioner [Chairperson] and not more than two Vigilance Commissioners [Members]. The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by the President for four years or till they attain the age of sixty-five years, whichever is earlier.
According to the CVC Act, the functions and powers of the Commission are as under:
(a) CVC supervises the functioning of Delhi Special Police Establishment [DSPE] in its investigations of cases under the PC Act. The commission supervises cases involving All India Services officers working with the Central Government; Group ‘A’ officers of the Central Government; and officers of the Central Public Sector enterprises and of autonomous organization under it andsimilar others.
(b) The commission, in its supervisory capacity, can give directions to the DSPE. The Commission, however, cannot ask the DSPE to investigate or dispose of any case in a particular manner. This follows from a cardinal principle of criminal jurisprudence that the functions of investigating, prosecuting and judging an offence shall be performed by separate agencies absolutely free of one another.
(c) The Commission can investigate any matter which Central Government refers to it about the involvement of the categories of officers mentioned in (a) above in offences under the PC Act.
(d) The commission can order investigation into complaints it receives about the involvement in offences under the PC Act of the categories mentioned in (a) above.
(e) The commission reviews the progress of applications pending with the competent authorities for sanction of prosecution under the PC Act. As we shall see, the prosecuting agencies cannot start a prosecution without the prior approval of the Central Government. The Commissiontries to speed up such sanctions.
(f) TheCommissionreviewstheprogressof investigationsconducted by theDSPEintooffences under the PC Act.
(g) The commission tenders advice on vigilance matters to Central Government, Central Public Sector Enterprises (CPSEs) and other Central agencies.
(h) The commission supervises the vigilance administration of variousMinistries of the Central Government, CPSEs and other Central agencies.
In addition to the above functions mentioned in the CVC Act, the VigilanceCommission performs certain administrative functions. Every Central Ministry, CPSE and other central agencies have vigilance or anti-corruption set ups usually under Chief Vigilance Officers (CVOs). The Vigilance commission approves the appointment of the CVOs. No one can be appointed as a CVO without the Commission’s approval. If the CBI considers that a prosecution should be launched in any case and if the sanction for such prosecution is required under any law to be issued in the name of the President, the Commission will tender advice, after considering the comments received from the concerned Ministry/Department/Enterprise, as to whether or not prosecution should be sanctioned.
In cases where an authority other than the President is competent to sanction prosecution and the authority does not propose to accord the sanction sought for by the CBI, the case will be reported to the Commission and the authority will take further action after considering the Commission’s advice. In cases recommended by the CBI for departmental action against such employees that do not come within the normal advisory jurisdiction of the Commission, the Commission will continue to resolve the difference of opinion, if any, between the CBI and the competent administrative authorities as to the course of action to be taken.
The Commission can direct that oral inquiry in any departmental proceedings, except in petty cases, should be entrusted to one of the Commissioners for Departmental Inquiries (CDIs) borne on its strength; in such cases, it will examine the report of the CDI; and forward it to the disciplinary authoritywith its advice as to further action.
If it appearsthat any procedure or practice is such that it affords scope or facilitiesfor corruption or misconduct,the Commissionmay advisethat suchprocedureor practicebe appropriatelychanged, or changed in a particular manner.
The Commission may initiate, at such intervals it considers suitable, a review of procedures and practices of administration insofar as they relate to maintenance of integrity in administration.
The Commission may take initiative in prosecuting persons who are found to have made false complaints of corruption or lack of integrity against public servants.
Chief Vigilance Officers (CVO)
Now, we will look at some important features of the institutional structure for handling corruption cases. We have already looked at the structure and functions of the CVC. Basically, most of the personnel handling corruption issues are located in the Central Ministries, CPSEs, and other central agencies. Each of these organizations has a designated CVO who generally handles its administrative matters. He functions under the head of the organization. CVOacts as a nodal point to CVC and CBI for all vigilance related matters. He is entirely guided by the directions he gets from the CVC.
Central Bureau of Investigation (CBI)
The Central Bureau of Investigation (CBI) was set up in 1963. The Special Police Establishment is a part of the CBI, and has two divisions: (i) Anticorruption division and (ii) Special Crimes Division. Anticorruption Division investigates following types of cases:
¤ Cases under the Prevention of Corruption Act, 1988
¤ Cases under the Indian Penal Code (IPC) or any other law which also involves bribery and corruption
¤ Cases pertaining to seriousirregularities allegedlycommitted by publicservants
¤ Cases against State government officials which State Governments entrust to the CBI
The Special Crime Division investigates both economic offences and conventional crimes. The latter include offences relating to internal security, espionage, sabotage, narcotics and psychotropic substances, antiquities, murders, dacoity/robberies, cheating, criminal breach of trust, forgeries, dowry deaths, suspicious deaths and other offences under IPC and other laws.
The investigation work is done through SPE wing of the CBI, which derives its police powers from the Delhi Special Police Establishment Act, 1946 to inquire and to investigate certain specified offences or classes of offences pertaining to corruption and other kinds of malpractices involving public servants. Arrangements have been evolved to avoid duplication between the investigations of State police and of CBI. Matters which involve mainly Central Government and its officers (even if some State officials are involved) are handled by CBI. State police handle matters falling mainly in their sphere. Army and CBI have also created coordination mechanisms.
The CVC supervises the Delhi Special Police Establishment inits investigation of offences under the Prevention of Corruption Act. Central Government supervises CBI in all other matters. The autonomy of CBI (from Central government) has become a contentious issue. We will discuss this separately.
A Collegium comprising the Prime Minister Chief Justice of India and the leader of the largest opposition party selects the CBI director. He holds office for two years.
The CBI cannot begin prosecutionproceedings against officers of therank of Joint Secretary and above without the approval of the Central Government. Similarly, CBI cannot prosecute officers of CSPEs and other central agencies without the approval of the Central Government.
The Chief Technical Examiner’s Organization (CTEO) functions under the administrative control of the CVC as its technical wing, carrying out inspection of civil, electrical and horticulture works of theCentral Government departments,CSPEs andother central agencies. The works or contractsfor intensive examination are selected from the details furnished by the CVO in the quarterly progress reports sent to the CTEO. The intensive examination helps in detecting cases of use of substandard materials, avoidable expenditure, and undue favours or overpayment to contractors.
In this section, we look at how the CVOs go about their tasks or the three broad approaches which they can follow to reduce corruption. The three approaches are (i) Preventative vigilance; (ii) Punitivevigilance;and (iii) Surveillanceanddetection.Though‘surveillance’and‘punitiveaction’for commission of misconduct and other malpractices are certainly important, the ‘preventive measures’ to be taken by the CVO are comparatively more important as these are likely to reduce the number of vigilance cases considerably. Thus, the role of CVO should be predominantly preventive.
Preventive Vigilance
The CVO has to take following preventive vigilance measures:
(i) To study existing procedures and practices in his organization and modify those which allow scope for corruption
(ii) To find out the causes of delay, the points where it happens and devise steps to minimize delays at different stages
(iii) To review the regulatory functions, determine those which are unnecessary, improve the manner of handling regulations and of exercising powers of control
(iv) To improve control over exercise of discretionary powers so that they are not exercised arbitrarily but fairly and transparently
(v) To educate citizens about the procedures of dealing with various matters and also to simplify the cumbersome procedures to the degree possible
(vi) To identify the areas in the organization which are prone to corruption and to ensure that officers of proven integrity only are posted in those areas
(vii) To prepare a list of officers of doubtful integrity
(viii) To prepare the “agreed list” in consultation with the CBI. This list will include the names of officers whose integrity is in doubt or against whom there are complaints alleging corruption
(ix) To ensure that the officers appearing on the list of officers of doubtful integrity and the agreed list are not posted in the identified sensitive/corruption prone areas
(x) To ensure periodical rotations of staff
(xi) To ensure that the organization prepares manuals on important subjects such as purchases, contracts and the like and that these manuals are updated from time to time and conform to the guidelines issued by the Commission.
Punitive Vigilance
Punitive vigilance refers to actions which arise after commission of acts of corruption. Many such acts come to light from complaints which government organizations receive.
The CVO is expected to take following action on the punitive vigilance aspects:
(i) To receive complaints from all sources and see if the allegations relate to corruption
(ii) To investigate specific and verifiable allegations involving corruption
(iii) To investigate personally or through others the allegations forwarded to him by the CVC or the CBI
(iv) To speedily process the investigation reports and get orders of the competent authorities on what to do about the reports and also obtain Commission’s advice on the investigation reports
(v) To ensure that properly worded chargesheets are served on the accused officers
(vi) To ensure speedy appointment of authorities to inquire into charges
(vii) To examine the inquiry officer’s report and take orders on it from the competent authority in consultation with CVC and UPSC (where necessary)
(viii) To ensure that the disciplinary authority issues a speaking order (i.e. one which states the reasons forthe decisiontaken) while imposing a punishment on the delinquentofficer
(ix) To ensure strict compliance with rules governing disciplinary proceedings at all stages so as to avoid legal challenges to their validity
(x) To ensurethatthetimelimitsprescribedforprocessingthevigilancecases at variousstages are observed.
Surveillance Vigilance
This aspect refers to ongoing monitoring of vigilance cases. Often, in the process of other official work vigilance matters are neglected. CVO has to ensure that necessary actions are taken on time in vigilance cases. Surveillance vigilance involves the following steps:
¤ CVO should conduct regular and surprise inspections in the sensitive areas in order to detect if there have been instances of corrupt or improper practice by the public servants.
¤ He should also undertake prompt and adequate scrutiny of property returns and intimations given by the publicservants underthe conduct rulesand takeproperfollow-up actionwhere necessary.
¤ He should also gather intelligence from his own sources in whatever manner he deems appropriate about the misconduct/malpractices committed or likely to be committed.
¤ CVO should invariably review all pending matters, such as investigation reports, disciplinary cases and other vigilance complaints/cases every month and take necessary steps for expediting action on those matters.