Gist of Important Articles from IIPA Journal: Central Vigilance Commission: A Profile P.K. Gopinath
Gist of Important Articles from IIPA Journal
Central Vigilance Commission: A Profile P.K. Gopinath
Creation of CVC
A Parliamentary debate in June, 1962 zoomed in on the “Growing Menace of Corruption in Administration”. Contextually, the then Home Minister, Lal Bahadur Shastri observed, “since we know most of the problems, the real point is to take remedial action”. This led to the formation of the Committee on Prevention of Corruption-better known as Santhanam Committee-to review the problem and make suggestions.
The report of the Committee is a tour de force that stemmed from a deep understanding of the aetiology of corruption in this country, the spread of its tentacles and the institutional response required to combat it. Among other things, the Santhanam Committee noticed the conspicuous absence of a dynamic integration between the Vigilance Units in various ministries and the Administrative Vigilance Division of the Ministry of Home Affairs. The Committee also raised an important issue that the administration could not be a judge of its own conduct. As a result, it recommended constitution of the CVC. The government accepted this and the Commission was set up under the terms of the Goverment of India Resolution dated February 11,1964.
Role,. Power and Jurisdiction of CVC
The CVC has been given the jurisdiction and powers in respect of matters to which the executive power of the Union extends. It has also been given the same measure of independence and autonomy as the Union Public Service Commission (UPSC), a statutory body. Broadly, the functions assigned to the Commission are:
1. undertake inquiry into any transaction in which a public servant (in Central Government organisations) is suspected or alleged to have acted for an improper purpose or in a corrupt manner and to tender advice to the Disciplinary Authorities in such cases at different stages of investigation, inquiry appeal, review, etc.;
2. exercise a general check and supervision over the vigilance and anti-corruption work in ministries and departments of the Government of India, Central Public Sector Undertakings and other autonomous bodies;
3. advise the administrative authorities to modify the existing procedures and practices when it appears that such procedures and practices afford scope for corruption and miscondnct; and
4. approve the appointment of Chief Vigilance Officers (CVOs) who head the Vigilance Units in various organizations.
Procedure of Work
The Commission is an advisory body. Ordinarily, advice is tendered on the basis of a two-stage consultation process with departments. Depending on the contents, complaints are referred either to the CVO or the Central Bureau of Investigation (CBI) for investigation. At the First Stage, the investigation report is examined and advice tendered regarding further course of action. It could be prosecution, major or minor penalty action or other non-statutory administrative action. In addition, there can be closure of a case at the first stage itself. In cases where major penalty proceedings are advised, on completion of the oral inquiry, advice is tendered, on the basis of the findings in the inquiry, regarding the nature of penalty to be imposed. This is the second stage advice.
There is a common misconception that anti-corruption work is the exclusive domain of a police agency like the CBI and that in every case, action could be initiated as under the Law. This is not true. Neither it is based on a proper appreciation of the nature of the problem of corruption nor of the role of the departmental vigilance machinery. For one thing, investigation of a case and the successful generation of a level of proof sustainable before critical judicial scrutiny is an extremely difficult task.
The other facet is that all cases may not reveal the ingredient of criminal misconduct that is a prerequisite for prosecution. Yet, many of them will be cases of grave misconduct, breaching conduct rules governing public servants with clear traces of ulterior motive and malafide. Thus, the appreciation of the distinction between a criminal misconduct and a departmental misconduct is important to enhance the effectiveness of anti-corruption work. The distinction is also linked to the kind of proof that is required in a case and the resultant action taken.
Problems Involved in Investigating Corruption Cases
While a specialised anti-corruption agency like the CBI would investigate a case that prima facie involves infringement of the provisions of the Prevention of Corruption Act or the Indian Penal Code (IPC), at the end of the investigation, evidence available may not be adequate for prosecution. In other words, the element of criminality is not clearly established according to the standard of proof beyond reasonable doubt that is required in a court of law. This need not surprise and is certainly no reflection on the competence of a professional agency. On the other hand, this difficulty is inherent in the nature of the problem itself. Under the Law, corruption is a cognizable offence. Therefore, it is no different from other cognizable crimes, like murder, assault, etc. The difference lies in the character of a crime of corruption. It is not a physical or predatory crime and, therefore, does not affect anyone particular individual. Thus, it lacks a sense of immediacy that would have moved a directly affected person to complain to the law enforcement agency which would be the case if a predatory crime were to be committed. An affected person or his family members would make a complaint furnishing certain specific information regarding time, place of occurrence, movements, etc. Such information is the starting point of investigation. In cases of corruption, most often, there is no specific, reliable information. To a great extent, this is because there is no aggrieved party in many cases of corruption.
It could be said that corruption is a bloodless crime targeted against society itself and, therefore, no one really feels the pain. As a corollary, we come to the second aspect of the problem. Having said that often there are no aggrieved parties, we should also accept the truism that at least in some situations, corruption takes place as crime by consent. Since both the giver and the taker of the bribe are on the same side, there is no complaint or specific information. Thus, evidence is difficult to come by during investigation. Hence, exclusive reliance on the provisions of anti-corruption law, police investigation and probable prosecution would not be an adequate response in the drive against corruption. This, in turn, should force the realisation that organisations have to strengthen their departmental vigilance units.
Objectivity in Recommending Action by CVC
The advisory role of the Commission is not in any way designed to belittle the paramount role or compromise the independence of the disciplinary authority. An advice tendered by the Commission is an input in a case subject to the test of application of mind by that authority. While the advice is confidential the process of tendering it is marked by an openness in that it is satisfied that prima facie a case exists. In doing so, the version of the public servant is also kept in view.
At the same time, the tenet that no administration can be the judge of its own conduct cannot be overlooked. What is required is the highest degree of objectivity and unbiased appreciation of the facts of a case. The Commission by its externality in judging the conduct of public servants broadens the perspective. The innocent ought to be protected, and the guilty punished. Public interest has to be loftily upheld and narrow and partisan mindsets jettisoned.
The fact that organisations accept and implement Commission’s advice without reservation is borne out by the negligible instances of disagreement with its advice. In fact, the disagreement has been consistently less than one per cent of the total number of first stage and second stage advices..
Summing Up
A larger question, then, is what direction vigilance administration should take so that it is socially relevant and can deliver results. In considering a response, it would be useful to make a distinction between macro and micro levels of corruption. Most of the macro level cases, involving huge losses, pecuniary gains, criminal nexus between public servants and private persons and legal ramifications would require investigation by the CBI so that the accused be brought to book. But cases of this type do not come to light every day. By and large, they would be the exceptions and have no direct or immediate impact at the cutting edge of public administration affecting the lives of ordinary folk. In a society that is still at the receiving end of authority and where even a minor public functionary struts about the dusty landscape and corruption lifts its creepy head in a hundred different nooks and crannies, public interaction with any government agency is not only incomprehensible but also humiliating. Very common things, like booking a railway ticket, getting a telephone shifted, getting a ration card, obtaining an income tax refund order or even a death certificate from the municipality are permeated by the evil. This affects a powerless citizen much more than headline grabbing cases that will be investigated and go to the courts. Therefore, if a tangible contribution is to be made in anti-corruption work, it has to be at the micro level where public harassment can be minimised. To do this, departmental vigilance is best equipped and the benefits to the common man can be felt very quickly and, if transparent systems and procedures are in place, by administering a mixture of preventive and punitive vigilance, the right message can be conveyed. Lastly, the Commission could playa role in creating an enabling environment in which anti-corruption work can produce better results. This would be outside the realm of law and departmental rules and more through social action. In a democratic milieu, people’s participation helps in tackling social problem. In the absence of such participation, institutional interventions would only partly achieve the goals set. Education and the creation of purposeful public opinion would catalyze the actions of various agencies working towards the same objective.