May 3rd
2013
To
Hon’ble
Chief Justice of India & his brother Judges
Supreme
Court of India
New
Delhi
Through
Registrar
General
Supreme
Court of India
New
Delhi
Written Submissions
in the matter titled
Manohar Lal Sharma
Vs. The Principle Secretary & Others
Writ Petition
(Criminal) 120 / 2012
Widening
the role of CVC and insulating CBI from extraneous pressures
Your Lordships !
Your observations in the
above matter regarding the functioning of CBI in reference to the 1997
judgement (Vineet Narain Vs. Union of India) of this Hon’ble Court has
encouraged me to submit this written submission for your kind perusal and for
consideration.
Your Lordships ! twenty
years ago, when I petitioned in this Court, against the criminal negligence of
CBI in a militancy and corruption related Jain Hawala Case, my expectation was
that under the monitoring of the Apex Court, CBI, DRI and Income Tax agencies
will do their duties to ensure proper investigations and will take the case to
its logical conclusions. This was the time when there were no 24x7 TV channels,
email and SMS facilities to mobilize public opinion on issue of corruption and
militancy. Hence in 1993 it was a difficult fight against the 115 most powerful
people of this country.
Due to the initiative of this
Court, the matter did progress to some extent, but for various reasons, could
not reach to its logical conclusions. For example 22 names mentioned in the
Jain Diary have not been de-coded / deciphered, by the CBI till this date, when
the author of the same is easily available to decode the same. Who knows that
these payees could be hardened militants, narcotic operators or powerful
people? Two affidavits filed by the petitioner (Vineet Narain Vs. Union of
India case no. 340-43 of 1993) dated 08.04.1995 & 09.01.1996
were never answered by the CBI with the result the concerned file of the CBI
was concealed from this Court. The evidence regarding the dilution of
investigation and the manner in which the beneficiaries in the diary were saved
is available in black & white but not a single delinquent official of the
CBI responsible for inaction from June 1991 to March 1995 was even asked to
explain his conduct which was adversely commented by the Apex Court in very
strong words. In other words all the delinquents were saved rather rewarded.
Inspite of intervention of this Hon’ble Court, the CBI, who kept the
investigation in cold storage for more than 40 months ultimately succeeded in
their original plan when all the accused persons were saved. However, the ‘famous’
judgement was pronounced, which gave the hope to the nation that things will
change in future.
As Your Lordships have
rightly observed that even after 15 years, nothing substantial has happened to
make the investigating agencies free from the political interference. As
pointed out above had the delinquents been punished, the misconduct could not
have been repeated. In the absence of any deterrence the agency would continue
to disregard the directions of the Apex Court with impunity. Inputs in the
present Coalgate Case clearly establish that the law officers appearing for CBI
tow the line of the investigating agency, forgetting that they are required to
assist the Hon’ble Court in arriving at the truth. As pointed out above, the
role of the law officers in the Hawala Case certainly helped the CBI in
concealing the truth from the Apex Court. Therefore the appointment of law
officers in the CBI also deserves to be reviewed.
The famous judgement has
been sidelined by creating a toothless CVC. Hence, it is very important for the
nation that Your Lordships’ review the situation and issue further guidelines
to ensure effective implementation of the 1997 judgement. However, based on my
experience of fighting corruption at the highest levels of governance, I would
like to submit some suggestions and observations, which may assist this Hon’ble
Court.
1.
The
CVC Act should be amended providing for a 5/7 member Central Vigilance
Commission which could broadly assume the role visualized for the Lokpal. The
selection process of the CVC members could be made more broad based to prevent
favorites or controversial persons from being appointed. Presently, three
members are drawn from IAS, IPS and Banking services. However, it should
include one retired judge of the Supreme Court appointed by the CJI in
consultation with next four senior most judges. Since, legislative wing of our
democracy is very important for the matters of governance, it would be
worthwhile to include one Member of Parliament, selected from those, who have
been the members of the either house for the longest duration. In addition to
this two to three members should be of engineering expertise, to assess the
scams like commonwealth games and one from the background of Chartered
Accountancy to examine the financial scams. These selections should be made as
transparent as possible. Co-opting a representative of Civil Societies will
create unnecessary controversy because of their diverse backgrounds and
agendas, hence, the role of Civil Society should be to generate awareness and
act as a pressure group only.
2.
The
CVC should constitute an Advisory Committee of at least 11 members drawn from
the Criminologists and Forensic Science experts. This will augment the
professional input in their functioning. Furthermore, to reduce the burden on
CVC, it should be given the power to outsource any expert or professional to
assist it in screening the loads of complaints.
3.
The
jurisdiction of CVC, which presently covers all employees of the Central Govt.
and the CPSUs, should remain unchanged. Already there is an administrative
arrangement to delegate the vigilance administration over class II and lower
formations to the ministries/departments concerned. However, if the lower
formations are involved with the class I officers in a composite case, the CVC
exercises a natural jurisdiction over all of them. To make this arrangement
more effective, it would be important that the CVC exercises complete control
over the selection, appointment and functioning of the CVOs.
4. The
CVC should have adequately experienced team to technically examine and assess
the gravity of a complaint, which can then be assigned to CBI for investigation
or can be investigated by this team. After assessing a complaint by this
broad-based CVC, there should be no necessity to seek prior permission from the
govt.
5. In
the cases assigned to it by the CVC, the CBI should be made functionally and financially
independent of the controls of any Govt. Ministry/Department. The professional
supervision over the investigations of CBI should rest only with the CVC and
its nature should be decisively improved from what exists today.
6.
The
methodology of appointment of the Director CBI should be similarly broad based
as in the case of the CVC members, whereas the other inductions/appointments in
the CBI should be brought under the overarching supervision of the CVC.
7.
For
achieving better synergy between the Anti Corruption Laws and grievance
handling, the laws relating to the whistleblowers and grievance redressal
should be placed within the jurisdiction of the CVC.
8. Effective
administration of anti corruption laws at the grass roots level is the key to
responsible governance. The state and their anti corruption agencies would
therefore require to be equally insulated from the State Government’s
interference on similar patterns.
Vineet Narain
Sr. Journalist and Petitioner in case titled WP340-43/93
in the Supreme Court of India
C-6/28, SDA, Hauz Khas, New Delhi – 110016
