SECTION 26 ( C ) OF THE CENTRAL VIGILANCE COMMISSION ACT, 2003 (25 OF 2003)- CHALLENGING ITS VALIDITY
JUDGEMENT OF THE SUPREME COURT IN THE WRIT PETITIONS ( CRIMINAL)NOS. 340-343/ 93
The Supreme Court vide its judgement dated December 18, 1997 in Criminal Writ Petitions Nos. 340-343/ 93 Vineet Narain and other versus Union of India and others (popularly known as the Jain Havala Case) issued directions to establish institutional and other arrangements aimed at insulating the Central Bureau of Investigation (CBI) from outside influences. These directions included giving a statutory status to the Central Vigilance Commission (CVC); entrusting the CVC with the responsibility of exercising superintendence over the CBI; prescribing procedures for appointment to the post of Director CBI; giving a minimum secure tenure of two years to Director CBI etc. The judgement also declared the Single Directive null and void.
THE SINGLE DIRECTIVE
The Single Directive was a set of executive instructions issued to the CBI by the central government, prohibiting the investigating agency from initiating inquiry/investigation against officers of the rank of joint secretary and above without obtaining prior permission of the government.
EXAMINATION OF THE SINGLE DIRECTIVE BY THE SUPREME COURT
The Supreme Court examined the Single Directive when the Havala case came up for hearing. The Court was informed that the main objective of the Directive was to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires/ investigations, so that they could take their decisions without fear of being victimized. The Attorney General of India stated that the officers at the decision making level needed this protection if they had to function efficiently, honestly and without fear.
The Attorney General of India cited two earlier decisions of the apex court to support the legal validity of the Directive. One was the decision in the case State of Bihar and Another etc. vs. Saldanha and others, 1980 (1) SCC 554. The decision in this case pertained to Section 3 of the Police Act of 1861, according to which superintendence of the state police vests in the state government. It was decided in the case that the power of superintendence of the government included its power to direct further investigation in a case under Section 173 (8), Cr. P.C. The Supreme Court, however, did not accept the argument that this decision of the Court could be used to support the legal validity of the Single Directive. According to the Court, the government exercised superintendence in the Saldanha case to promote the cause of justice by directing further investigation of an offence where investigation done earlier was unsatisfactory. The Court ruled that the effect of the Single Directive would be to thwart investigation and not to promote justice and therefore the earlier decision could not be used to support the validity of the Single Directive.
The other case cited by the government was K. Veeraswamy vs. The Union of India and others, 1991 (3) SCC 655. It had been held in that case that though the Prevention of Corruption Act applied to the judges of the Supreme Court and High Courts, no criminal case could be registered against them without the consent of the Chief Justice of the Supreme Court. The Attorney General contended that this decision of the Court supported the proposition that high-ranking officers should not be prosecuted without the prior permission of the government. The Supreme Court did not accept this argument on the ground that judges were constitutional functionaries and their decision in the case was guided by the need to maintain the independence of the judiciary. It would be wrong to rely on that judgement to uphold the validity of the Single Directive.
INTERPRETATION BY THE COURT OF THE WORD “SUPERINTENDENCE”
The working of the CBI is governed by the Delhi Special Police Establishment Act of 1946. Section 3 of the Act authorises the central government to specify the offences or classes of offences, which are to be investigated by the Delhi Special Police Establishment ( which is a part of the CBI). Section 4 vests the superintendence of this organisation in the central government. The Court examined these provisions of law and concluded: “Once the CBI is empowered to investigate an offence by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of ‘superintendence’ in Section 4 (1).” The Court further stated: “The word ‘superintendence’ in Section 4 (1) can not be construed in a wider sense to permit supervjsion of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions.” It is settled that statutory jurisdiction cannot be subject to executive control.
EQUALITY OF ALL BEFORE LAW
The Supreme Court ruled the Single Directive as invalid in law also on the ground that it violated the principle of equality of all before laws. “The law does not classify offenders differently for treatment there under, including investigation of offences and prosecution of offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as ‘decision making officers.’ The question is whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused”. The Court concluded that no such distinction could be made.
In view of the above, the Court declared the Single Directive null and void.
THE GOVERNMENT’S RESPONSE
The Court issued the directions in the case on December 18, 1997. Numerous attempts were made by the Government of India right from the beginning to thwart the implementation of the judgement. This note is concerned only with the part of the judgement relating to Single Directive and thus gives information only about the developments that occurred in respect of this part. A few important developments in this regard are as follows:
• The Law Commission of India prepared a Bill known as the Central Vigilance Commission Bill, 1998. The Bill made no mention of the Single Directive since the Supreme Court had declared it null and void. However, the Government in the meantime, in disregard of the Bill prepared by the Law Commission, promulgated the Central Vigilance Commission Ordinance, 1998. The Ordinance brought this infamous Directive back by putting a specific provision that proscribed the CBI from registering a case for inquiry/ investigation against officers of the rank of Joint Secretary and above without permission of the central government.
• The matter came to the notice of the Supreme Court when Shri Anil Diwan, the amicus curiae in Writ Petition (Civil) No. 38/97 filed written objections to certain provisions of the Ordinance. The Attorney General assured the Court that the Government would reexamine the matter and fine-tune the Ordinance.
• On October 27, 1998 another Ordinance was promulgated called the Central Vigilance Commission (Amendment) Ordinance, 1998 (No. 18 of 1998). The Amendment deleted the provision relating to the Single Directive.
• The Central Vigilance Commission Bill, 1998 was drafted by the Government to replace the two Ordinances. This Bill did not have any provision proscribing regarding the Single Directive
• The CVC Bill 1998 was introduced in the House of People on December 7, 1998 and passed by the Lok Sabha on March 15, 1999. Before the Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha was dissolved and the Bill lapsed
• Since the CVC Bill, 1998 could not be passed by the Parliament, the Government promulgated another Ordinance on January 8, 1999 known as the CVC Ordinance, 1999. This Ordinance lapsed on April 5, 1999 and the Government had to issue a Resolution to continue the CVC as a non- statutory body.
• To confer statutory status on the CVC, the CVC Bill, 1999 was again introduced in the Lok Sabha on December 20, 1999.
• The Bill was finally referred to a Joint Committee of both Houses of Parliament. Shri Sharad Pawar was appointed the Chairperson of the Committee on December 28, 1999.
• The Committee presented its report to both Houses of Parliament on November 22, 2000. The report also included a draft Bill.
• The Bill drafted by the Committee resurrected the Single Directive.
The Central Vigilance Commission Act 2003 as finally passed by the Parliament implemented the recommendation of the Committee and retained the provision implementing the Single Directive in the form of Section 26 (c). This Section added Section 6 A to the Delhi Special Police Establishment Act, 1946. This Section is reproduced below:
“ 6A Approval of Central Government to conduct inquiry or investigation- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to-
a) The employees of the Central Government of the level of Joint Secretary and above; and
b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).”
ADDITIONAL POINTS
The CVC Act, 2003 goes beyond what was attempted earlier through the CVC Ordinance of 1998. While the Ordinance prescribed that approval prior to undertaking any inquiry or investigation against officers of the level of joint secretary and above would have to be obtained by the CBI from the CVC, the Act lays down that this approval would have to be obtained from the central government. This is contrary to the spirit of Section 8 (a) of the Act itself that says that the CVC shall exercise superintendence over the functioning of the Delhi Special Police Establishment Act in so far as it relates to investigation of offences under the Prevention of Corruption Act, 1988.
As already mentioned, this provision in law is based on the recommendation made by the Joint Committee of the Parliament. The Committee was guided in this decision by the “the need to protect the bonafide actions at the decision making level.” The Committee felt that “no protection is available to the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a ‘Single Directive’ which was set aside by the Supreme Court. The Committee feel that such a protection should be restored in the same format…” In the Havala case, this argument was discussed by the apex Court in great detail and rejected.
Protection against prosecution without sanction of the government is already available to all public servants under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988. The Act provides protection even at the stage of conducting inquiry or investigation into an allegation of corruption against senior officers. The implications of providing this type of impunity were spelt out in the dissenting note of a member of the Committee, Shri Kuldip Nayar, Member, Rajya Sabha. According to him, the pliable public servants “who carry out the errands of the political masters will go scot free” and “corrupt officers will rule the roost due to their proximity to the seats of power.”
The Single Directive earlier consisted of executive instructions. The CVC Act, 2003 gives it the legal sanctity.
According to the Cr.P.C, the police are legally bound to register FIR on receiving information about the commission of a cognizable case, irrespective of the status of the person accused of having committed that offence. Law also requires them to make necessary inquiry/investigation and no permission is required to do so. The Single Directive violates this basic principle of law and goes against various judgements of the Supreme court and High Courts, which say that investigation of criminal cases is the sole and exclusive preserve of the police and no outside authority can direct the police when to initiate or how to proceed with investigation. This was made clear by the Supreme Court in the Havala Case.
Section 26 ( c ) of the Central Vigilance Commission Act, 2003 is against the principle of equality of all before law and thus defies the main standards on which the rule of law is based. It can be interpreted as a violation of Article 14 of the Constitution too.
