"4. At
the outset, we would indicate that the nature of proceedings before
the High Court is somewhat similar to those pending in this Court in
Vineet
Narain v. Union of India,
1996 (2) SCC 199 and Anukul
Chandara Pradhan v. Union of India,
1996 (6) SCC 354 and, therefore, the High Court is required to
proceed with the matter in a similar manner. It has to be borne in
mind that the purpose of these proceedings in essentially to ensure
performance of the statutory duty by the CBI and the other government
agencies in accordance with law for the proper implementation of the
rule of law.
To
achieve this object a fair, honest and expeditious investigation into
every reasonable accusation against each and every person reasonably
suspected of involvement in the alleged offences has to be made
strictly in accordance with law. The duty of the Court in such
proceedings is, therefore, to ensure that the CBI and other
government agencies do their duty and do so strictly in conformity
with law. In these proceedings, the Court is not required to go into
the merits of the accusation or even to express any opinion thereon,
which is a matter for consideration by the competent court in which
the charge-sheet is filed and the accused have to face trial. It is,
therefore, necessary that not even an observation relating to the
merits of t he accusation is made by the Court in these proceedings
lest it prejudice the accused at the trial. The nature of these
proceeding may be described as that of "continuing mandamus"
to require performance of its duty by the CBI and the other
government agencies concerned.
This
must be borne in mind as also that the scope and purpose of a
proceeding like the present is to ensure a proper and faithful
performance of its duty by the police officer by resort to the
prerogative writ of mandamus."
The
Minister's power in these matters has, therefore, to be understood as
circumscribed by these limitations under the law.
History
of CBI
It
is useful to refer at this stage to the history of the CBI. The
Special Police Establishment was formed during the World War II when
large sums of public money were being spent in connection with the
War and there arise enormous potential for corruption amongst the
officers dealing with the supplies. An executive order was made by
the Government of India in 1941 setting up the Special Police
Establishment (SPE) under a DIG in the then Department of War. The
need for a central government agency to investigate c ases of bribery
and corruption by the Central Government servants continued and,
therefore, the Delhi Special Policy Establishment act was brought
into force in 1946. Under this Act, the superintendence of the
Special Police Establishment was transferred to the Home Department
and its function were enlarged to cover all departments of the
Government of India. The jurisdiction of the SPE extended to all the
Union Territories and could also be extended to the States with the
consent of the concerned State Governments. Then the SPE was put
under the charge of Director, Intelligence Bureau. Later in 1948 a
post of Inspector General of Police, SPE was created and the
organisation was placed under his charge. The Central Bureau of
Investigation was established on 1.4.1963 vide Government of India's
Resolution No, 4/31/61- T/MHA. This was done to meet the felt need of
having a central police agency at the disposal of the Central
Government to investigate into cases not only of bribery and
corruption but also those relating to the breach of central fiscal
laws, frauds in government departments and PSUs and other serious
crimes. On enlargement of the role of CBI an Economic Offences Wing
was added to the existing Divisions of the CBI. In 1887 tow Divisions
were created in the CBI known as Anti-Corruption Division and Special
Crimes Division, the latter dealing with cases of conventional crimes
besides economic offences. In 1994 due to increased workload relating
to bank frauds and economic offences a separate Economic Offences
Wing was established in CBI with the result that since then the CBI
has three Investigation Divisions, namely, Anti-Corruption Division,
Special Crimes Division and Economic Offences Division. Further
particulars thereof are not necessary in the present context.
The
position of Judges of High Courts and Supreme Court, who are
constitutional functionaries, is distinct, and the independence of
judiciary, keeping it free from any extraneous influence, including
that from executive, is the rationale of the decision in K.
Veeraswami (supra).
The
Single Directive has to be examined in this background. The
law does not classify offenders differently for treatment thereunder,
including investigation of offences and persecution for offences.
according to their status in life. Every person accused of committing
the same offences 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 p[person 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.
There
are ample powers conferred by Article 32 read with Article 142 to
make orders which have the effect of law by virtue of article 141 and
there is mandate to all authorities to act in aid of the orders of
this Court as provided in Article 144 of the Constitution. In a
catena of decisions of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to fill the
vacuum till such time the legislature steps in to cover the gap or
the executive discharges its role.
"The
obligation of this court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation
must be viewed along with the rule of judiciary envisaged in the
Beijing Statement of Principles of the Independence of the Judiciary
in the LAWASLA region. These principles were accepted by the
Chief Justices of Asia and the Pacific at Beijing in 1995 (*) As
amended at Manila, 28th August, 1997 as those representing the
minimum standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary The
objectives of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:
10. The objectives and functions
of the Judiciary include the following:
(a)
to ensure that all persons are able to live securely under the Rule
of Law:
(b) to
promote, within the proper limits of the judicialfunction, the observance and
the attainment of human rights; and
(c) to
administer the law impartially among persons and between persons and the State."
Thus, an exercise of this kind by
the court is now a well settled practice which has taken firm roots
in our constitutional jurisprudence. This exercise is essential to
fill the void in the absence of suitable legislation to cover the
field.
As
pointed out in Vishakha (supra), it
is the duty of the executive to fill the vacuum by executive orders
because its field is coterminous with that of the legislature, and
where there is inaction even by the executive, for whatever reason,
the judiciary must step in, in exercise of its constitutional
obligations under the aforesaid provisions to provide a solution till
such time as the legislature acts to perform its role by enacting
proper legislation to cover the field.
On
this basis, we now proceed to give the directions enumerated
hereafter for rigid compliance till such time as the legislature
steps in to substitute them by proper legislation. These directions
made under Article 32 read with Article 142 to implement the rule of
law wherein the concept of equality enshrined in Article 14 is
embedded, have the force of law under Article 141 and, by virtue of
Article 144, it is the duty of all authorities, civil and judicial,
in the territory of India to act in aid of this Court. In the
issuance of these directions, we have accepted and are reiterating as
far as possible the recommendations made by the IRC.
It
is a similar perception in England which has led to the constitution
of a Committee headed by Lord Nolan on 'Standards in Public Life'. In
Volume 1 of Lord Nolan's Report (1995), the general recommendations
made are: General recommendation
Some
of our conclusions have general application across the entire
service;
Principles
of public life
5.
The general principles of conduct which underpin public life need to
be restated. We have done this. The seven principles of selflessness,
integrity, objectivity, accountability, openness, honesty and
leadership are set out in full on page 14.
Codes
of Conduct
6.
All public bodies should draw up Codes of Conduct incorporating these
principles Independent Scrutiny
7.
Internal systems for maintaining standards should be supported by
independent scrutiny.
Education
8.
More needs to be done to promote and reinforce standards of conduct
in public bodies, in particular through guidance and training,
including induction training".
The
Seven Principles of Public Life are stated in the Report by Lord
Nolan, thus:
The
Seven Principles of Public Life
Selflessness
Holders of public office should
take decisions solely in terms of the public interest. They should
not do so in order to gain financial or other material benefits for
themselves, their family, or their friends.
Integrity
Holders of
public office should not place themselves under any financial or
other obligation to outside individuals or organisations that might
influence them in the performance of their official duties.
Objectivity
In
carrying out public business, including making public appointments,
awarding contracts, or recommending individuals for rewards and
benefits, holders of public office should make choices on merit.
Accountability
Holders
of public office are accountable for their decisions and actions to
the public and must submit themselves to whatever scrutiny is
appropriate to their office.
Openness
Holders
of public office should be as open as possible about all the
decisions and actions that they take. They should give reasons for
their decisions and restrict information only when the wider public
interest clearly demands.
Honesty
Holders
of public office have a duty to declare any private interests
relating to their public duties and to take steps to resolve any
conflicts arising in a way that protects the public interest.
Leadership
Holders
of public office should promote and support these principles by
leadership and example."
These
principles of public life are of general application in every
democracy and one is expected to bear them in mind while scrutinising
the conduct of every holder of a public office. It is trite that the
holders of public offices are entrusted with certain powers to be
exercised in public interest alone and, therefore, the office is held
by them in trust for the people. Any deviation from the path of
rectitude by any of them amounts to a breach of trust and must be
severely dealt with instead of being pushed under the carpet. If the
conduct amounts to an offence, it must be promptly investigated and
the offender against whom a prima facie case is made out should be
prosecuted expeditiously so that the majesty of law is upheld and the
rule of law vindicated. It is duty of the judiciary to enforce the
rule of law and, therefore, to guard against erosion of the rule of
law.
The
adverse impact of lack of probity in public life leading to a high
degree of corruption is manifold. It also has adverse effect on
foreign investment and funding from the International Monetary Fund
and the World Bank who have warned that future aid to under-developed
countries may be subject to the requisite steps being taken to
eradicate corruption, which prevents international aid from reaching
those for whom it is meant. Increasing corruption has led to
investigative journalism which is of value to a free society. The
need to highlight corruption in public life through the medium of
public interest litigation invoking judicial review may be frequent
in India but is not unknown in other countries: R v Secretary of
State for Foreign and Commonwealth Affairs, (1995) 1 WLR 386.
Of
course, the necessity of desirable procedures evolved by court rules
to ensure that such a litigation is properly conducted and confined
only to mattes of public interest is obvious. This
is the effort made in these proceedings for the enforcement of
fundamental rights guaranteed in the Constitution in exercise of
powers conferred on this Court for doing complete justice in a cause.
It cannot be doubted that there is a serious human rights aspect
involved in such a proceeding because the prevailing corruption in
public life, if permitted to continue unchecked, has ultimately the
deleterious effect of eroding the Indian polity.
As
a result of the aforesaid discussion, we hereby direct as under:
I.
CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)
1.
The Central Vigilance Commission (CVC) shall be given statutory
status.
2.
Selection for the post of Central Vigilance Commissioner shall be
made by a Committee comprising the Prime Minister, Home Minister and
the Leader of the Opposition from a panel of outstanding civil
servants and others with impeccable integrity to be furnished by the
Cabinet Secretary. The appointment shall be made by the President on
the basis of the recommendations made by the Committee. This shall be
done immediately.
3.
The CVC shall be responsible for the efficient functioning of the
CBI. While Government shall remain answerable for the CBI's
functioning, to introduce visible objectivity in the mechanism to be
established for over viewing the CBI's working, the CVC shall be
entrusted with the responsibility of superintendence over the CBI's
functioning. The CBI shall report to the CVC about cases taken up by
it for investigation; progress of investigations; cases in which
chargesheets are filed and their progress. The CVC shall review the
progress of all cases moved by the CBI for sanction of prosecution of
public servants which are pending with competent authorities,
specially those in which sanction has been delayed or refused.
4.
The Central Government shall take all measures necessary to ensure
that the CBI functions effectively and efficiently and is viewed as a
non-partisan agency.
5.
The CVC shall have a separate section in its Annual Report on the
CBI's functioning after the supervisory function is transferred to
it.
6.
Recommendations for appointment of the Director, CBI shall be made by
a Committee headed by the Central Vigilance Commissioner with the
Home Secretary and Secretary (Personnel) as members. The views of the
incumbent Director shall be considered by the Committee for making
the best choice. The Committee shall draw up a panel of IPS officers
on the basis of their seniority, integrity, experience in
investigation and anti - corruption work. The final selection shall
be made by Appointments Committee of the Cabinet (ACC) from the panel
recommended by the Selection Committee. If none among the panel is
found suitable, the reasons the reasons thereof shall be recorded and
the Committee asked to draw up a fresh panel.
7.
The Director, CBI shall have a minimum tenure of two years,
regardless of the date of his superannuation. This would ensure that
an officer suitable in all respects is not ignored merely because he
has less than two years to superannuate from the date of his
appointment.
8.
The transfer of an incumber Director, CBI in an extraordinary
situation, including the need for him to take up a more important
assignment, should have the approval of the Selection Committee.
9.
The Director, CBI shall have full freedom for allocation of work
within the agency as also for constituting teams for investigations.
Any change made by the Director, CBI in the Head of an investigative
team should be for cogent reasons and for improvement in
investigation, the reasons being recorded.
10.
Selection/extention of tenure of officers upto the level of Joint
Director (JD) shall be decided by a Board comprising the central
Vigilance Commissioner, Home Secretary and Secretary (Personnel) with
the Director, CBI providing the necessary inputs. The extension of
tenure or premature repatriation of officers upto the level of Joint
Director shall be with final approval of the Board. Only cases
pertaining to the appointment or extension of tenure of officers of
the rank of Joint Director or above shall be referred to the
Appointments Committee of the Cabinet (ACC) for decision.
11.
Proposals for improvement of infrastructure, methods of
investigation, etc. should be decided urgently. In order to
strengthen CBI's in-house expertise, professionals from the revenue,
banking and security sectors should be inducted into the CBI.
12.
The CBI Manual based on statutory provisions of the Cr. P.C. provides
essential guidelines for the CBI's functioning. It is imperative that
the CBI adheres scrupulously to the provisions in the Manual in
relation to its investigative functions, like raids, scizure and
arrests. Any deviation from the established procedure should be
viewed seriously and severe disciplinary action taken against the
concerned officials.
13.
The Director, CBI shall be responsible for ensuring the filing of
chargesheets in courts within the stipulated time limits, and the
matter should be kept under constant review by the Director, CBI
14.
A document on CBI's functioning should be published within three
months to provide the general public with a feedback on
investigations and information for redress of genuine grievances in a
manner which does not compromise with the operational requirements of
the CBI.
15.
Time limit of three months for grant of sanction for prosecution must
be strictly adhered to. However, additional time of one month may be
allowed where consultation is required with the Attorney General (AG)
or any other law officer in the AG's office.
16.
The Director, CBI should conduct regular appraisal of personnel to
prevent corruption and/or inefficiency in the agency.
III.
ENFORCEMENT DIRECTORATE
1.
A Selection Committee headed by the Central Vigilance Commissioner
and including the Home Secretary, Secretary (Personnel) and Revenue
Secretary, shall prepare a panel for appointment of the Director,
Enforcement Directorate. The appointment to the post of Director
shall be made by the Appointments Committee of the Cabinet (ACC) from
the panel recommended by the Selection Committee.
2.
The Director, Enforcement Director like Director, CBI shall have a
minimum tenure of two years. In his case also, premature transfer for
any extraordinary reason should be approved by the aforesaid
Selection Committee headed by the Central Vigilance commissioner.
3.
In view of the importance of the post of Director, Enforcement
Directorate, it shall be upgraded to that of a Additional
Secretary/Special Secretary to the Government.
4.
Officers of the Enforcement Directorate handling sensitive
assignments shall be provided adequate security to enable them to
discharge their functions fearlessly.
5.
Extensions of tenure upto the level of Joint Director in the
Enforcement Directorate should be decided by the said Committee
headed by the Central Vigilance Commissioner.
6.
There shall be no premature media publicity by the CBI/Enforcement
Directorate.
7.
Adjudication/commencement of prosecution shall be made by the
enforcement Directorate within a period of one year.
8.
The Director, Enforcement Directorate shall monitor and ensure speedy
completion of investigations/adjudications and launching of
prosecutions. Revenue Secretary must review their progress regularly.
9.
For speedy conduct of investigations abroad, the procedure to approve
filing of applications for Letters Rogatory shall be streamlined and,
if necessary, Revenue Secretary authorised to grant the approval
10.
A comprehensive circular shall be published by the Directorate to
inform the public about the procedures/systems of its functioning for
the sake of transparency.
11.
In-house legal advice mechanism shall be strengthened by appointment
of competent legal advisers in the CBI/Directorate of Enforcement.
12.
The Annual Report of the Department of Revenue shall contain a
detailed account on the working of the Enforcement Directorate.
III.
NODAL AGENCY
1.
A Nodal Agency headed by the Home Secretary with Member
(Investigation), Central Board of Direct Taxes, Director General,
Revenue Intelligence, Director, Enforcement and Director, CBI as
members, shall be constituted for coordinated action in cases having
politico-bureaucrat- criminal nexus.
2.
The Nodal Agency shall meet at least once every month.
Working
and efficacy of the Nodal Agency should be watched for about one
year so as to improve it upon the basis of the experience gained
within this period. IV
PROSECUTION
AGENCY
1.
A panel of competent lawyers of experience and impeccable reputation
shall be prepared with the advice of the Attorney General Their
services shall be utilised as Prosecuting Counsel in cases of
significance. Even during the course of investigation of an offence,
the advice of a lawyer chosen from the panel should be taken by the
CBI/Enforcement Directorate.
2.
Every prosecution which results in the discharge or acquittal of the
accused must be reviewed by a lawyer on the panel and, on the basis
of the opinion given, responsibility should be fixed for dereliction
of duty, if any, of the concerned officer. In such cases, strict
action should be taken against the officer found guilty of
dereliction of duty.
3.
The preparation of the panel of lawyers with approval of the Attorney
General shall be completed within three months.
4.
Steps shall be taken immediately for the constitution of an able and
impartial agency comprising persons of unimpeachable integrity to
perform functions akin to those of the Director of Prosecutions in
U.K. On the constitution of such a body, the task of supervising
prosecutions launched by the CBI/Enforcement Directorate shall be
entrusted to it.
5.
Till the constitution of the aforesaid body, Special Counsel shall be
appointed for the conduct of important trials on the recommendation
of the Attorney General or any other law officer designated by him.
The
learned amicus curiae had urged us to issue directions for the
appointment of an authority akin to the Special or Independent
Counsel in the United States of America for the investigation of
charges in politically sensitive matters and for the prosecution of
those cases and to ensure that appointments to sensitive posts in the
CBI and other enforcement agencies and transfers therefrom were not
made by the political executive. We are of the view that the time for
these drastic steps has not come. It is our hope that it never will,
for we entertain the belief that the investigative agencies shall
function far better now, having regard to all that has happened since
these writ petition were admitted and to the directions which are
contained in this judgment. The personnel of the enforcement agencies
should not now lack the courage and independence to go about their
task as they should, even where those to be investigated are
prominent and powerful persons.
In
view of the problem in the States being even more acute, as
claborately discussed in the Report of the National Police Commission
(1979), there is urgent need for the State Government also to set up
credible mechanism for selection of the Police Chief in the States.
The Central Government must pursue the matter within the State
Governments and ensure that a similar mechanism, as indicated above,
is set up in each State for the selection/appointment, tenure,
transfer and posting of not merely the Chief of the State Police but
also all police officers of the rank of Superintendent of Police and
above. It is shocking to hear, a matter of common knowledge, that in
some States the tenure of a Superintendent of Police is on an average
only a fee months and transfers are made for whimsical reasons. Apart
from demoralising the police force, it has also the adverse effect of
politicizing the personnel. It is, therefore, essential that prompt
measures are taken by the Central Government within the ambit of
their constitutional powers in the federation to impress upon the
State Governments that such a practice is alien to the envisaged
constitutional machinery. The situation described in the National
Police Commission's Report (1979) was alarming and it has become much
worse by now. The desperation of the Union Home Minister in his
letters to the state Governments, placed before us at the hearing,
reveal a distressing situation which must be cured, if the rule of
law is to prevail. No action within the constitutional scheme found
necessary to remedy the situations is too stringent in these
circumstances.
In
the result, we strike down Directive No. 4.7(3) of the Single
Directive quoted above and issue the above directions, which have to
be construed in the light of the earlier discussion. The Report of
the Independent Review Committee (IRC) and its recommendations which
are similar to this extent can be read, if necessary, for a proper
appreciation of these directions. To the extent we agree with the
conclusions and recommendations of the IRC, and that is a large area,
we have adopted the same in the formulation of the above directions.
These directions require the strict compliance/adherence of the Union
of India and all concerned.
The
writ petitions are disposed of in the above terms Criminal Misc.
Petition Nos. 5879-5882 of 1997 In view of the disposal of the writ
petitions in the manner indicated above and in the facts and
circumstances of the cases, we do not consider it necessary now to
examine the appointment of Shri R.C. Sharma as Director, CBI.
Moreover, the tenure of Shri Sharma as Director, CBI is to end soon.
We make it clear that Shri Sharma is not to be continued as CBI
Director beyond the date of expiry of his present tenure.
Accordingly, these Crl. M. Ps. are disposed of in this manner.
In
view of the withdrawal of C.W.P.No.2992 of 1997 in the Delhi High
Court as required by this Court's order dated 11.9.1997, no further
order for the disposal of C.W.P. No. 2992 of 1997 is necessary.