- The government enacted The Delhi Special Police establishment act 1964 after the second world war which provided for the constitution of special force for investigation of offences alleged to have been committed under the Prevention of Corruption Act 1968.
- CBI derives power to investigate from the Delhi Special Police Establishment Act 1946. After promulgation of the Act, superintendence of SPE was transferred to the Home Department and its functions were enlarged to cover all departments of the Government of India.
- The jurisdiction of SPE was extended to all the Union territories and the Act provided for its extension to States with the consent of the State Government.
- The Headquarters of SPE was shifted to Delhi and the organisation was put under the charge of Director. Intelligence Bureau. However, in 1948, a post of Inspector General of Police, SPE was created and the organisation was placed under his charge.
Restructuring of CBI After Vineet Narain Judgment:
- Pursuant to the direction of Hon’ble Supreme Court in Vineet Narain and others vs. Union of India, the existing Legal Division was reconstituted as the Directorate of Prosecution in July 2001.
- Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for the administration of the organisation.
- With enactment of the Central Vigilance Commission Act, 2003, the superintendence of Delhi Special Police Establishment vests with the Central Government for investigations of offences under the Prevention of Corruption Act 1988, in which, the superintendence vests with the Central Vigilance Commission.
Vineet Narain Case- CBI Placed Under CVC:
- Vineet Narain case is about hawala scandal where a Journalist Vineet Narain implicated numbers of high ranking politicians and bureaucrats of having financial irregularities and their alleged links with militants across the borders.
- The Supreme Court in the case observed that CBI had failed in its responsibility and has become a caged parrot.
- The Court laid down guidelines to ensure independence and autonomy of the CBI and ordered CBI to be placed under the supervision of the Central Vigilance Commission (CVC) to ensure that it remains free from executive control or interference.
- Thus, The CVC was made responsible for ensuring that allegations of corruption against public officials were thoroughly investigated regardless of the identity of the accused and without interference from the Government.
- Central Vigilance Commission was constituted by the Government in 1964 through an executive order on the recommendations of Committee on Prevention of Corruption, headed by Shri K. Santhanam The government then passed the Central Vigilance Commission Act. 2003 to provide statutory status to the Central Vigilance Commission.
- As per the CVC Act, the Commission exercise superintendence, give directions and review the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988.
Post Enactment of Lokpal and Lokayukta Act:
- The Central Government shall appoint the Director on the recommendation of the Committee consisting of Prime Minister as Chairperson
- The Leader of Opposition recognised as such in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in that House.
- Chief Justice of India or Judge of Supreme Court nominated by CJI.
- Tenure of CBI Director – The CBI Director shall continue to hold office for a period of not less than two years from the date on which he assumes office. The Director shall not be transferred except with the previous consent of the Committee.
Providing and Withdrawal of Consent Given to CBI by State Government (Section 6):
- CBI does not have jurisdiction to investigate any case in any state government unless the state government provides consent for the same.
- Section 6 of Delhi Special Police Establishment Act, 1946 empowers state governments to provide consent or even withdraw consent to CBI. The general consent is necessary for CBI as the jurisdiction of the CBI and other agencies covered under Delhi Special Police Establishment Act, 1946 is confined to Delhi and Union Territories.
- Earlier, state government of Andhra Pradesh and West Bengal had withdrawn the general consent given to Central Bureau of Investigation (CBI) to investigate cases of corruption in the state.
Right of CBI to Conduct Investigation:
Section 6 of DSPE is based on Entry 80 of the Union List which allows extension of powers and jurisdiction of police force of one State in another State but not without the consent of other state. However, Withdrawal of Consent by State Government is Not Absolute as:
- It does not affect pending investigation.
- CBI can investigate cases registered in another state in relation to continuing investigation.
- Constitutional Courts can allow CBI investigation despite state’s withdrawal.
Despite these advantages, withdrawal of consent by states limits the functioning of CBI in conducting investigation. Due to functional constraints in matters of Investigation on corruption against central government employees, CBI has filed a petition in the Supreme Court against withdrawal of consent by states.
- CBI is not empowered under DSPE to investigate matters pertaining to federal crimes and hence cannot initiate fresh investigations in state without state’s consent.
- States have withdrawn consent to safeguard their federal rights against unscrupulous interference by the central government through CBI and other agencies.
- Supreme Court in S.R. Bommai had stated that the States are not mere appendages of the Union and described federalism as a concept which unites separate States into a Union without sacrificing State’s own fundamental political integrity.
Suggested Reforms For CBI:
There has been a demand of structural reforms at CBI Including its own laws and responsibilities.
- LP. Singh Committee and 2nd ARC have recommended enactment of a comprehensive central legislation to remove the deficiencies of not having a central investigative agency having its own laws and charter of duties and functions.
- 19th and 24th Reports of Parliamentary Standing Committees of 2007 and 2008 suggested strengthening of legal mandate, infrastructure and financial resources of CBI to ensure independence in its functioning and autonomy from political and bureaucratic lobby.
- 24th Parliamentary Standing Committee even suggested CBI to take Suo moto cognizance of crimes and to give CBI pan Indian jurisdiction including jurisdiction to investigate corruption charges against officers of All India Services.
Thus, despite the powers given to CBI to conduct investigation in states, their consent is mandatory to ensure balance of federal relations between centre and states as CBI Is neither federal police nor has powers under Entry 2 of State List.
Ordinance Increasing Term of CVC And CBI Chief To 5 Years
- Increases political interference: Extension of tenure, in this adhoc and episodic fashion, will reaffirm the control of Executive over these investigative and is antithetical to their independent functioning.
- Goes against principle of ensuring fixation of tenure for the Director of CBI, laid down in Vineet Narain Case. Fixation of tenure is an essential element in ensuring independent functioning of government officials. A piecemeal extension system creates perverse incentive for officials to serve at the pleasure of the Government.
- Extension of tenure of these functionaries should only be in rare and exceptional cases and only for a short period of time. (Common Cause Case)
- Against equality: Similarly ranked officers in other departments and agencies of government do not have this privilege.
- The extension has been brought about by an Ordinance without giving proper reasons. This amounts to frivolous misuse of the Ordinance route to bypass Parliament.
Non-political functioning of top investigative agencies of CVC and CBI is essential for the trust and integrity of these bodies. While a longer term for its leadership is essential, the frequent conditional extensions should make way for one-time secured 5 year term.
Addressing the menace of corruption must employ a mix of preventive and punitive measures.
Preventive measures aim to reduce opportunities for corruption by making systems transparent, increasing accountability, reducing discretion, rationalising procedures etc.
Key Preventive measures employed are as follows:
- Code of Conduct and Code of ethics: to guide ethical workplace conduct in accordance with the values of the services.
- Use of Technology: minimising human interface in systems prevents avenues for corruption. Eg: CPGRAMS
- Integrity Pacts: envisages an agreement between the prospective vendors/bidders and the buyer, committing persons and officials of both sides to not resort to any corrupt practices in any aspect or stage of the contract.
- Easing transactions and simplifying citizen interface: Reduces loopholes and facilitates easy grievance redressal. Eg: GST
- Evidence- based decision making reduces administration discretion without compromising on innovation in public service delivery.
Punitive measures act as a deterrent by enforcing a penalty mechanism to reduce corruption in the public system. Key Punitive measures to deal with corruption include:
- Using deterrence by various rules and regulations and law.(RTI ACT 2015, POCA 2018, Whistle-blower protection, United Nations Convention against Corruption act and various IPC sections )
- Empowering bodies like CVC, CBI, CAG with respect to expanded mandate, dedicated cadre and legal amendments.
- International cooperation on the lines of FATF, WIU, Mutual Legal assistance etc.
- Revamp of Lokpal by increasing scope, ambit and mandate of the body.
- Publish relevant data and guarantee access to information to ensure the public receives easy, accessible, timely and meaningful information.
Corruption is a multi-layered menace that impacts all sections of the society. Multi stakeholder and multi-level cooperation is needed to weed out the menace of corruption which has severe political, economic and social costs. This has also been supported by Kautilya, who recommends strictest punishment, both material and corporal, as a disincentive to cheat.