This article is written by Kritika Garg, from National Law University, Odisha. This is an exhaustive article that explains the Vineet Narain judgement in-depth along with the role that CVC played.

Introduction

The concept of equality has been enshrined under Part III of the Constitution of India. The basic law says, “Be you ever so high, the law is above you”. No matter how powerful one is, if he/she has committed any offence, then he/she has to bear the same consequences as any other offender of the same crime. 

However, the facts of the case present a dismal picture of inequality, a picture of how people in high post use their power to commit an offence and get away with it. The Government agencies which are entrusted with the responsibility of fighting against corruption, the responsibility of upholding the law, are the one who is breaking it and contributing to the erosion of Indian polity. 

The present article discusses how agencies like CBI, Enforcement Directorate, and other revenue authorities failed to fulfil their part of legal obligations which resulted in the formulation of such law that is still used to prevent the repetition of such evil actions.

Background facts

The facts of the case are as follows:

• On 25th March 1991, Ashfaq Hussain Lone, an alleged official of a terrorist organization named Hizbul Mujahideen, was arrested in Delhi. Ashfaq was interrogated and it was revealed that his organization was getting funds through hawala transactions with the help of Surrender Kumar Jain and his family.
• Subsequent to his interrogation, Central Bureau Investigation(CBI) raided the premises of Surrender Kuman Jain, his brothers, relatives, and his businesses. During the raid at his premises, the CBI seized Indian and Foreign currency along with two diaries and two notebooks. The diaries contained detailed accounts of huge payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, both who were in power and who were out of power, and high ranking bureaucrats.  
• The CBI, then, stopped probing the case, leaving the diaries and the Jain brothers uninvestigated. In fact, the officers of CBI who were involved in the case were transferred to other places by an order from the ruling politicians. 
• Later on, on 4th October 1993,  writ petitions were filed in the Supreme Court in the public interest under Article 32 of the Constitution of India. The petitions contained allegations against Government agencies, CBI, and revenue authorities, for not fulfilling their legal obligation and duties as they failed to investigate the ‘Jain diaries’ which were seized while investigating the matter. 
• Allegations were made against the government agencies for not taking into account the illegal transaction of money which was carried through ‘hawala transactions’ as discovered from the interrogation of Ashfaq. The nexus discovered between high ranking politicians, bureaucrats, and criminals, who were receiving the money from unlawful sources was not investigated and the CBI failed to reach a logical conclusion, punishing the one who was guilty of committing the offence. 
• It was alleged that the investigation was stopped for the reason of protecting the persons who were involved in the case because they were not only very powerful or influential but also held a high position in the country. The matter involved a close connection between crime and corruption which possesses a great threat to the security, and economy of the country, however, the CBI failed to fulfil its legal obligation to probe each and every case according to the law of land, to proceed against every person involved in the crime, the same way irrespective of the position the person holds or the political influence he/she may have. The petitions prayed for certain reliefs, namely:

1. The offences as disclosed in the facts be investigated according to the law of the land. 
2. The Hon’ble Court may be pleased to appoint such an officer, whose integrity, and competency, the court has confidence in, for supervising the investigation.
3. The court may be pleased to issue an order stating that the culprits will be dealt with in accordance with the law, irrespective of their post and power.
4. The court may also issue certain directions ensuring that the evil actions of the government agencies and high ranking politicians are not repeated in the future. 

• Thus, the case was not only concerned with the fair investigation of “Jain diaries”, but it was also concerned with fair and biased free working of Government agencies so that, if a situation like this arises in the future, the agencies do not repeat such inactive and evil action. 

Main issues

The main issue in front of the court was the unsatisfactory functioning of the Government agencies, namely CBI, and Enforcement Directorate of revenue department, which required close scrutiny so that these agencies could perform their functions and fulfil the purpose for which they have been constituted.

The Central Government realised that in order to improve the functioning of these agencies, it is essential to conduct an in-depth study of the selection process of these agencies. For the same purpose, the government constituted the Vohra Committee that was headed by the then Home Minister, Shri N.N. Vohra. 

Vohra Committee

Constituted on

9th July 1993

Composition

Head: Shri N. N. Vohra

Members: Secretary (Revenue), Director of Intelligence Bureau, Director of CBI, Joint Secretary (PP) of Ministry of Home Affairs.

Purpose

The central government entrusted the Vohra committee with a responsibility to examine the information about the organizations engaged in criminal activities having links with political leaders and high ranking bureaucrats who were protecting them. 

Report

The report of the committee disclosed a powerful nexus between politicians, high ranking bureaucrats, and mafia gangs, illegal organizations, and the underworld. The committee recommended the establishment of a nodal agency under the Ministry of Home affairs to compile all the information that was received from the Intelligence Bureau, CBI, and Research and Analysis Wing. On the recommendation of the committee, the Central Government constituted a body named as Independent Review Committee.

Independent Review Committee

Constituted on

8th September 1997

Composition

i) Former Cabinet Secretary, Shri B. G. Deshmukh

ii) Principal  Secretary to the Prime Minister, Shri N.N. Vohra

iii) Central Vigilance Commissioner, Shri S.V. Giri

Purpose

1. To examine the structure and working of CBI, Enforcement Directorate of Revenue department, and other agencies to ensure fair and unbiased functioning of these agencies.
2. To supervise the functioning of the nodal agency established under the Ministry of Home Affairs. 
3. To ensure that the investigating power is not misused by these agencies in order to protect any person, especially the one in high authority.

Arguments

Before starting an investigation against any Government officers or the Public Sector Undertakings (PSUs), or any nationalized bank, the Government requires to issue a Single Directive.

Single Directive

It is a set of instructions that are issued to the CBI by Ministries and departments for acquiring sanctions for initiating an inquiry or registering a case against any public servant. 

The main objective for issuing a single directive is to protect civil servants from the threat or ignominy of malicious and vexatious investigation. These officers who are responsible for making decisions might get anxious from the likelihood of getting harassed for taking the right decisions. This can affect the efficiency and efficacy of these officers adversely, keeping them away from making any decision. Thus, in order to protect the officials from any malicious interrogation, a Single directive is issued. It is also important to note that these directives are issued only for the official acts of the government functionaries and not for the non-official acts. 

The validity of Special Directive

However, two major questions were raised regarding the Single directive being issued by the Central Government. First being the legality of the directive and second being the coverage of the directive, if it is valid. 

Court’s Order on Special Directive

The court held that the Single Directive cannot be termed as valid as it classifies offenders differently on the basis of their post and status for the purpose of investigation and prosecution. Article 14 of the Constitution of India provides for equal treatment. As per the law, all the offenders of the same offence are to be dealt with in the same manner irrespective of their power and authority. Special Directive gives special treatment to the division making officers which are against the law of the land. Thus, Special directives cannot be held as valid. 

IRC Report

The IRC in its report considered Single Directive valid while relying on the judgement given in the case of K. Veeraswami v. Union of India and others and the State of Bihar and Another etc. v. J.A.C. Saldanha and others. The report relied on the view that the decision-making officials need to be protected from any malicious investigation in view of protecting their right decisions. Taking into account the functions of CBI, IRC recommended certain measures under the head of “Measures for Speedy Trial”:

1. Special courts must be established to deal with offences relating to the Foreign Exchange Regulation Act for speedy disposal.
2. Many times, the suspect stalled the investigation on medical grounds. Therefore, the Ministry of Health must be approached to establish a board to examine such a person.
3. Some suspects also stall the investigation by acquiring a stay order from High Courts or other courts. The revenue department must make enough arrangements so that such acts must not slow down the process of investigating and deciding the case.
4. The Revenue Secretary must be considered as a competent authority to approve a filing for application for letters Rogatory in cases of conducting investigation abroad.

Role of CVC 

Taking into consideration the recommendations of the committee formed, the apex court issued certain directives giving the Central Vigilance Commission an important role to play. 

1. The CVC was given statutory status and a committee was set up for the selection of Central Vigilance Commissioner comprising the Prime Minister, Home Minister, the Leader of the Opposition from a panel of outstanding civil servants, and others with impeccable integrity, to be furnished by the Cabinet Secretary. It was decided that the appointment shall be made by the President on the recommendation of the committee immediately.
2. CVC was entrusted with the responsibility of supervising CBI to bring transparency in CBI’s work. The Government will remain answerable for the functioning of the CBI, but CBI will report to the CVC about all the cases that it takes up for investigation, the progress in the cases, cases in which charge sheets are filed, and their progress. 
3. The CVC will review the progress of all the cases which are moved by the CBI for sanction of prosecution of public servants, pending with competent authorities, especially when the sanction has been delayed or refused.
4. The CVC was entrusted with the responsibility of ensuring that the CBI works effectively and efficiently and is not considered as a partisan agency.
5. Lastly, the CVC was ordered to maintain a separate section in the Annual report on the CBI’s functioning, once its supervisory function is transferred to it.

Judgement

In view of the allegations made and investigation conducted, the court held that corruption itself is a big threat to human rights, and leaving it unchecked can have detrimental effects on the country far beyond anyone’s control. Therefore, the court using the power under Article 32 and Article 142 of the Constitution of India issued certain directives. These directives are:

Central Bureau Investigation

1. The appointment of the director of the CBI shall be made on the basis of recommendation made by a committee headed by Chief Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as its member. 
2. The director of CBI shall have a tenure of a minimum of 2 years, irrespective of the date of his superannuation. The reason for setting this limit is that a capable officer must not be ignored because of the fact that he/she has less than 2 years left for his/her superannuation.
3. The director shall be free to assign any work to any officer within the agency. Further, the director shall be free to constitute a team for any investigation, however, if the director wishes to make any change in the head of an investigative team, then he/she shall present cogent reasons for the same.
4. It is the responsibility of the director to file a charge-sheet in the court within stipulated-time. Apart from that, the director is also responsible for keeping the case under constant review. 
5. The director shall timely appraise the officers of the agency to maintain their efficiency and efficacy and to prevent corruption as well.
6. The time limit for grant of sanction for prosecution was set to three months. An additional time of one month may be granted when consultation is required from the Advocate General or any other officer of the Advocate general office.
7. The CBI shall strictly adhere to the guidelines being mentioned in the manual for conducting raids or seizures. 
8. The CBI shall present a report once every three months to the public with a view of solving their grievances in a manner that does not compromise with the CBI’s functioning.

Enforcement Directorate (ED)

1. Director of ED shall be appointed by the Appointments Committee of the Cabinet (ACC) on the recommendation made by the Selection Committee headed by Central Vigilance Commissioner with the Home Secretary, Secretary (Personnel), and Revenue Secretary as its members.
2. Like the director of CBI, the director of Enforcement directorate shall have a minimum tenure of 2 years.
3. The transfer of the director before completion of the minimum tenure is possible only for extraordinary reasons with the approval of the Selection Committee.
4. The director shall be upgraded to the post of Additional Secretary/Special Secretary to the government in order to mark the importance of the director’s post.
5. The ED shall begin the prosecution/adjudication of the case within a period of one year.
6. Revenue department shall continuously review the work of the ED and a separate section in the annual report of the Department of Revenue shall contain a detailed account of the working of ED.

Nodal Agency

1. The court provided for the establishment of a nodal agency for coordinated action in cases having politico-bureaucrat-criminal nexus.
2. Head: Home Secretary 
3. Member: Central Board of Direct Taxes, Director General, Revenue Intelligence, Director, Enforcement and Director CBI
4. The Nodal Agency shall meet at least once every month.
5. The agency shall work for one year after which improvements shall be made on the basis of one year’s experience for increasing its efficiency if needed. 

Prosecution Agency

1. The court also directed to establish a prosecution agency consisting of competent lawyers appointed on the advice of the Attorney-general. 
2. These lawyers shall be responsible for advising the CBI during the course of an investigation of a case.
3. Cases in which the accused is acquitted must be reviewed by a lawyer of this panel and in case the lawyer advises otherwise, then the officer responsible for dereliction of duty must be charged with strict actions. 

Conclusion

The directives issued under this judgement became the law of land under Article 141 of the Constitution of India. The same has to be adhered to unless any law contrary to it is passed. A check on these government agencies was being placed by the apex court to ensure that the agencies fulfil their part of legal obligation and work towards the erosion of corruption and upheld the law of the land. 

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