The Central Vigilance Commission Bill, 2003 Mischief of the Single Directive

Appoint a Director of Public Prosecution

by Anil Nauriya

THE Central Vigilance Commission Bill, 2003, was passed by the Rajya Sabha a few
days ago. It has already been passed by the Lok Sabha. The legislation seeks by Clause 26 to validate the very practice which the Supreme Court had struck down a few years ago in the case of Vineet Narain and others versus the Union of India. This judgement was the culmination of a series of orders in what came to be known as the hawala case based on the disclosure of the diaries of a businessman showing payments to a number of politicians, bureaucrats and others. By this judgement, delivered in December 1997, the Supreme Court had invalidated the so-called Single Directive of the Union Government. The Single Directive was first issued in 1969 and amended from time to time. It gets its name from the fact that it is a consolidation of a number of instructions to the Central Bureau of Investigation (CBI). By this directive the Union Government laid down that prior sanction of a designated authority would be necessary before the initiation of an investigation against officers of the government, nationalised banks and public sector undertakings above a certain level. There is already a provision in the criminal law requiring sanction from the Union or state government, as the case may be, in the case of prosecution of public servants. The Single Directive goes beyond this and requires sanction of a designated authority even for the purpose of investigation. The new legislation seeks to amend the law under which the CBI functions so as to ensure that officers above the Joint Secretary level and certain other persons are not inquired into or investigated without the permission of the Central Government. At present the CBI performs three kinds of functions, many of which go beyond the level of Central public servants. The skeletal Delhi Special Police Establishment Act, 1946, under which the CBI operates does not limit the investigatory functions of the CBI to public servants. The CBI may investigate any offence or class of offences notified by the Union Government, subject to certain conditions in respect of matters within the jurisdiction of states. The Supreme Courts final judgement in the Vineet Narain case appears to have been written primarily with Central public servants in mind. But the CBI investigates other cases in addition (as, for example, economic and other criminal offences) in respect of which the Central Vigilance Commission (CVC) may not necessarily be the appropriate authority to overview its functions. The new legislation grants it supervisory powers over the CBI in respect of corruption cases alone. In fact, even this could create future difficulties in the federal scheme unless proper constitutional provision is made. Also, the CBI takes up investigation in various cases upon the special directions of courts of law. This last practice is not statutorily provided for but has developed over the years. Clearly, these three categories of functions which the CBI performs need to be placed on a sound statutory basis. The CVC legislation does not really attempt this.

Nor did the Supreme Court in the Vineet Narain case really help in this. The Supreme Court, having reached its conclusion on the invalidity of the Single Directive, suggested further that the CBI be placed under the overall direction of the CVC to ensure its efficient functioning. It also suggested that the CVC itself be placed on a statutory footing. But it did not pay adequate attention to the statutory basis of the CBI. The new legislation appears to adopt the CVC-CBI aspect of the courts suggestion but nevertheless seeks to revalidate or revive the Single Directive. This means that so far as corruption cases involving Central public servants and companies and agencies under the control of the Central Government are concerned the CBI would be under the control of the CVC, and yet the real power to sanction investigation would not be with the commission but with some other designated authority empowered by the Single Directive. Even when the Vineet Narain case was being argued, the then Attorney-General had sought to justify the Single Directive on the analogy of the Supreme Courts earlier judgement in the case of K. Veeraswami versus the Union of India and others (1991) (Volume 3, Supreme Court Cases 655). In that case the Supreme Court had held that that so far as the registration of a case under Section 154 of the Code of Criminal Procedure against any member of the superior judiciary is concerned, prior permission is required to be taken from the Chief Justice of India. However, it is doubtful if this analogy can be extended to the senior officers in the executive branch of the government. As the Supreme Court pointed out in Vineet Narains case, the independence of the judiciary from executive interference, which is protected by the Constitution, requires safeguards. This cannot, therefore, be treated on a par with the so-called Single Directive. There is a strong likelihood of this aspect of the new legislation being struck down by the courts. In any case, the CBI has outgrown the Delhi Special Police Establishment Act under which it was conceived and still functions. Both the CVC legislation and the earlier Supreme Courts judgement have the effect of adding more authorities to which the CBI becomes answerable. Now the CBI will be controlled by the latest CVC legislation, and by the previous Act and also by the directives of the court issued from time to time asking it to investigate this or that case. This is not a satisfactory state of affairs. In fact, the court-driven jurisdiction has a mixed record and is a little studied dimension of the CBIs jurisdictionary ambit and experience. It has resulted in a certain ad-hocism which has sometimes damaged the investigation and prosecution of cases. It can be argued, for example, that while the Supreme Courts intervention in the hawala cases certainly resulted in the initiation of prosecution, at least in one respect it did not help the investigation. It perhaps hustled the prosecuting agencies into filing cases without fully completing their investigations. As a result, the prosecution of Mr L.K. Advani, for example, in the hawala case was later quashed by the Delhi High Court largely on a point of investigatory methodology. Finally, events have shown that it is not merely financial corruption that must be the main focus of a Central investigative agency. India has not yet found a satisfactory answer to the matter of public accountability and culpability in inter-communal killings. Most states seem to perform badly when it comes to the prosecution of the offenders if they have political linkages, irrespective of the party in power.

The debate, therefore, needs to transcend the CBI, the CVC and the existing judgements on the subject. The real need is for a Director of Public Prosecution (DPP) which would be largely independent of political control. Such an institution already exists in many countries. It should be answerable to high judicial authority as is the case with the Procurator-General in France. This will serve a long-felt need and go some way to restore faith in the rule of law in India. This would also perhaps meet the concern of the international community that genocidal crimes ought to be tried internationally where national jurisdictions fail to provide adequate remedies. This concern led to the establishment recently of the International Criminal Court. There are several problems with such a standing international criminal court. But the legitimacy of the concern that has led to its establishment must be recognised. Genocidal or quasi-genocidal crime must not go unpunished in India. To establish an independent national statutory agency to bring the offenders to book, a constitutional amendment may be required. Corruption has many aspects; tinkering here and there will not do.