Vineet Narain & Others v. Union of
India & Another
Tags: -- Jain Diaries, "continuing mandamus", CBI, speedy trial, Article 21/32/141/142/144 Constitution of India, PIL, Vohra Committee Report, Single Directive, reforming CBI, duty of police, Special Police Establishment, Police Act 1861, Sec 173 (8) Cr P.C, Section 6 Prevention of Corruption Act, Section 2/3/4 (1)/6 Delhi Special Police Establishment Act 1946, "superintendence"------meaning, equality, objectives of the Judiciary, The Seven Principles of Public Life, CBI Manual, allegation of inaction by the investigating agencies
- This experience revealed to us the need for the insulation of these agencies from any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy of which rule of law is the bedrock. The basic postulate of the concept of equality: "Be you ever so high, the law is above you", has governed all steps taken by us in these proceedings.
Procedure
Adopted
We
have taken the view that, given the political personalities of the
propel to be investigated in the "Jain diaries" case and
the time already lost in commencing the investigation it was
advantageous not to hear the matter through and issue a writ of
mandamus, leaving it to the authorities to comply with it, but
to keep the matter pending
while the investigations were being carried on, ensuring that this
was done by monitoring them from time to time and issuing orders in
this behalf.
The
sum and substance of these orders is that the CBI and other
Governmental agencies had not carried out their public duty to
investigate the offences disclosed; that
none stands above the law so that an alleged offence by
him is not required to be investigated; that we would monitor the
investigations, in the sense that we would do what we permissibly
could to see that the investigations progressed while yet ensuring
that we did not direct or channel those investigations or in any
other manner prejudice the right of those who might be accused to a
full and fair trial. We made it clear that the task of the monitoring
court would and the moment a charge-sheet was filed in respect of a
particular investigation and that the ordinary processes of the law
would then take over. Having regard to the direction in which the
investigations were leading, we found it necessary to direct the CBI
not to report the progress of the investigations to the person
occupying the highest office in the political executive this was done
to eliminate any impression of bias or lack of fairness or
objectivity and to maintain the credibility of the investigations. In
short, the procedure adopted was of "continuing mandamus".
5. Even after this matter was brought to the court complaining of the incrtia of CBI and the other agencies to investigate into the offices because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to precede with the investigation was apparent. The accusation, if true, reveled a nexus between high ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be connected. This revealed a grave situation poising a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could not but be countenanced. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. In view of the persistence of that situation, it becomes necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation.Merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. It was, therefore, decided to direct the CBI and other agencies to complete the investigation expeditiously, keeping the court informed from time to time of the progress of the investigation so that the court retained siesin of the matter till the investigation was completed and the chargesheets were filed in the competent court for being dealt with, thereafter, in accordance with law.
The
facts and circumstances of the present case do indicate that it is of
utmost public importance that this matter is examined thoroughly by
this Court to ensure that all Government agencies, entrusted with the
duty to discharge their functions and obligations in accordance with
law, do so, bearing in mind constantly the concept of equality
enshrined in the Constitution and the basic tenet of rule of law :
"Be you ever so high, the law is above you".
6. "The true scope of this writ petition has been indicated during the earlier hearings. At this stage, when some charge sheets have been filed in the Special Court and there is considerable publicity in the media regarding this matter, with some speculation about its true scope, it is appropriate to make this order to form a part of the record.
7. It is significant that the machinery of investigation started moving as a result of these orders and after investigation of the allegations made against several persons the basis of the contents of the Jain Diaries, Chargesheets were filed in the competent court in the first instance against 14 persons, as reported to the court on 22.2.1996. Chargesheets against many other persons were filed in the competent court thereafter as reported later from time to time. In all, 34 Chargesheets against 54 persons have been filed on this basis. Thus, as indicated earlier, the purpose of these proceedings to the extent of the complaint of inertia of the investigating agencies came to an end with the filing of these chargesheets, since the merits of the accusation against each individual has, thereafter, to be considered and dealt with by the competent court at the trial, in accordance with law. Trial in the competent court is now a separate proceeding.
It
is significant that the machinery of investigation started moving as
a result of these orders......
8. "We do not consider it appropriate to permit any intervention in this matter. Shri Anil Diwan has been requested by us to appear as Amicus Curiae in this matter. He has kindly agreed to do so. It is open to anyone who so desires, to assist Shri Anil Diwan and to make available to him whatever material he chooses to rely on in public interest to enable Shri Diwan to effectively and properly discharge functions as Amicus Curiae. Except for this mode of assistance to the learned Amicus Curiae, we do not permit any person either to be impleaded as party or to appear as an intervenor. In our opinion, this is necessary for expeditious disposal of the matter and to avoid the focus on the crux of the matter getting diffused in the present case by the appearance of many persons acting independently in the garb of public interest.9. The purpose of this proceeding is to command performance of the duty under law to properly investigate into the accusation of commission of the crime and to file a chargesheet in the competent court, if a prima faice case is made out. This purpose has been served in the above three cases, in respect of which no further action in this proceeding is called for. Accordingly, this proceeding has come to an end, in so far as it related to the above three criminal cases. For the remaining part, it is to continue till the end result prescribed by law is achieved. The concerned court in which the chargesheet has been filed has to proceed entirely in accordance with law without the slightest impression that there is any parallel proceeding in respect of the same matter pending in this court.
"We
do not consider it appropriate to permit any intervention in this
matter. Shri Anil Diwan has been requested by
us to appear as Amicus Curiae in this matte. He has kindly agreed to
do so. It is open to anyone who so desires, to assist
Shri Anil Diwan and to make available to him whatever material he
chooses to rely on in public interest to enable Shri Diwan to
effectively and properly discharge functions as Amicus Curiae. Except
for this mode of assistance to the learned Amicus Curiae, we do not
permit any person either to be impleaded as party or to appear as an
intervenor. In our opinion, this is necessary for expeditious
disposal of the matter and to avoid the focus on the crux of the
matter getting diffused in the present case by the appearance of many
persons acting independently in the garb of public interest.
10. 21. A note of caution may be appropriate. No occasion should arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial. It is reiterated, that any observation made by this Court for the purpose of the proceedings pending here has no bearing on the merits of the accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermanned in any manner. This proceeding is to continue in respect of the remaining matters only which are incomplete. "
The
concerned court in which the charge-sheet has been filed has to
proceed entirely in accordance with law without the slightest
impression that there is any parallel proceeding in respect of the
same matter pending in this court.
21.
A note of caution may be appropriate. No
occasion should arise for an impression that the publicity attaching
to these matters has tended to dilute the emphasis on the essentials
of a fair trial and the basic principles of jurisprudence including
the presumption of innocence of the accused unless found guilty at
the end of the trial. This requirement, undoubtedly has to be kept in
view during the entire trial. It is reiterated, that any observation
made by this Court for the purpose of the proceedings pending here
has no bearing on the merits of the accusation, and is not to
influence the trial in any manner. Care must be taken to ensure that
the credibility of the judicial process is not undermanned in any
manner. This proceeding is to continue in respect of the remaining
matters only which are incomplete. " ... ... ...
Dr.
Subramaniam Swamy Order dated 24.02.1997 :
"..
... ...
It
is also made clear to the petitioner that the petition having been
entertained as a public interest litigation in view of the public
interest involved, the locus of the
petitioner is confined only to assisting the court through amicus
curiae appointed by the court and that the petitioner has no
independent or additional right in the conduct or hearing of the
proceedings hereafter.
In-Camera
Proceedings: --
During
the monitoring of the investigations, the Solicitor General/Attorney
General, from time to time, reported the progress made during the
course of investigation, in order to satisfy us that the agencies
were not continuing to drag their feet and the "continuing
mandamus" was having the effect of making the agencies perform
their statutory function. The procedure adopted by us was merely to
hear what they had to report or the CBI Director and the Revenue
Secretary had to tell us to be satisfied that the earlier inaction
was not persisting. We maintained this stance throughout. We also
ensured that no observation of any kind was made by us nor was any
response given which may be construed as our opinion about the merits
of the case or the accusation against any accused. We also did not
identify or name any accused during performance of this task.
(Process : - )At
the very outset, the then Solicitor General Shri Dipankar P. Gupta
requested that a part of the proceedings be held `in camera' to
enable him to state certain facts and, if necessary, place before us
material, the secrecy of which was required to be maintained for
integrity of the investigation and also to avoid any prejudice to the
concerned accused. In these circumstance, such a procedure was
adopted only to the extent necessary for this propose, in the
interest of justice, and that is how a part of some hearings was held
in camera. This innovation in the procedure was made, on request, to
reconcile the interest of justice with that of the accused.
It
is settled that the requirement of a public hearing in a court of law
for a fair trial is subject to the need of proceedings being held in
camera to the extent necessary in public interest and to avoid
prejudice to the accused. We consider it appropriate to mention these
facts in view of the nature of these proceedings wherein innovations
in procedure were required to be made from time to time to sub- serve
the public interest, avoid any prejudice to the accused and to
advance the cause of justice. The medium of "continuing
mandamus", was a new tool forged because of the peculiar needs
of this matter.
Inertia
was the common rule whenever the alleged offender was a powerful
person. Thus, it became necessary to take measures to ensure
permanency in the remedial effect to prevent reversion to inertia of
the agencies in such matters.
Everyone
against whom there is reasonable suspicion of committing a crime has
to be treated equally and similarly under the law and probity in
public life is of great significance. The constitution and working of
the investigating agencies revealed the lacuna of its inability to
perform whenever powerful persons were involved. For this reason, a
close examination of the constitution of these agencies and their
control assumes significance. No doubt, the overall control of the
agencies and responsibility of their functioning has to be in the
exhaustive, but then a scheme giving the needed insulation from
extraneous influences even of the controlling executive, is
imperative. It is this exercise which became necessary in these
proceedings for the future. This is the surviving scope of these writ
petitions.
Point
for Consideration
As
a result of the debate in these proceedings and into experience
gained thereby the Union of India came to realise that an in-depth
study of the selection of personnel of these agencies, particularly
the CBI and the Enforcement Directorate of the Revenue Department,
and their functioning is necessary. The Government of India, sharing
this perception, by an Order No. S/937/SS(ISP)/93 dated 9th July,
1993 constituted a Committee headed by the then Home Secretary Shri
N.N.Vohra to take stock of all available information about the
activities of crime syndicates/mafia organisations which had
development links with, and were being protected by, government
functionaries and political personalities. It was stated that on the
basis of recommendations of the Committee the Government shall
determine the need, if any, to establish a special
organisation/agency to regularly collect information and pursue cases
against such elements. The Committee was headed by the then Home
Secretary Shri N.N. Vohra and had as its Members - Secretary
(Revenue), Director, Intelligence Bureau, Director, CBI, Joint
Secretary (PP), Ministry of Home Affairs. The Committee gave its
recommendations dated 5.10.1993. It has made scathing comments and
has painted a dismal picture of the existing sene. It has said that
the network of the mafia is virtually running a parallel government
pushing the State apparatus into irrelevance. The Committee
recommended the creation of a nodal agency under the Ministry of Home
Affairs for the collation and compilation of all information received
from Intelligence Burcau (IB), Central Bureau of Investigation (CBI)
and Research and Analysis Wing (R&AW) and the various agencies
under the Department of Revenue. The report is significant for the
dismal picture of the existing scenario which discloses a powerful
nexus between the bureaucracy and politicians with the mafia gangs,
smugglers and the underworld. The report of the Vohra Committee is
the opinion of some top bureaucrats and it confirmed our worst
suspicions focusing the need of improving the procedure for
constitution and monitoring the functioning of intelligence agencies.
There is, thus, no doubt that this exercise cannot be delayed
further.
The
same perception of the Government of India led it to constitute
another Committee by Order No. 226/2/97-AVD-II dated 8th September,
1997 comprising of Shri B.G. Deshmukh, former Cabinet Secretary, Shri
N.N. Vohra, Principal Secretary to the Prime Minister and Shri S.V.
Giri, Central Vigilance Commissioner, called the Independent Review
Committee (IRC). The order reads as under :
"WHEREAS the Government of
India is of the opinion that it is necessary to set up a Committee
for going into the matters mentioned hereinafter;
2. NOW, THEREFORE, a Committee of
the following is hereby set up :-
(i) Shri B.G. Deshmukh, former
Cabinet Secretary
(ii) Shri N.N. Vohra, Principal
Secretary to the Prime Minister
(iii) Shri S.V.Giri, Central
Vigilance Commissioner Shri N.N. Vohra shall act as Convenor.
3. The terms of reference of the
Committee ar as under :-
(i) To monitor the functioning of
the nodal agency established by the Ministry of Home Affairs in
pursuance of the recommendations of the Vohra Committee Report.
(ii) To examine the present
structure and working of the Central Bureau of Investigation (CBI),
the Enforcement Directorate and related agencies to suggest the
changes, if any, needed to ensure : [a] that offences alleged to have
been committed by any person, particularly those in positions of high
authority, are registered, investigated and prosecuted fairly and
expeditiously, ensuring against, inter alia, external pressure,
arbitrary withdrawals or transfers of personnel etc., and ensuring
adequate protection to the concerned functionaries to effectively
discharge their duties and responsibilities;
[b] that there are sufficient
cheeks and balances to ensure that the powers of investigation and
prosecution are not misused; [c] that there are no arbitrary
restrictions to the initiation of investigations or launching of
prosecutions.
4. The Committee should give its
report with regard to the items mentioned in paragraph 3(ii) above
within a period of 3 month s."
It
was urged that refusal
of sanction with reasons would enable judicial review of that
decision in case of any grievance against refusal of the sanction.
Need
for Courts Intervention
The
IRC is a body constituted by the Central Government itself as a
result of its perception that the constitution and functioning of the
CBI, CVC and Directorate of Enforcement require a close scrutiny in
the background of the recent unsatisfactory functioning of these
agencies with a view to improve t heir functioning. The view taken by
the IRC is a reaffirmation of this belief shared b y everyone. The
preface to the report indicates the reason for the constitution of
the IRC and says that "In the past several years, there has been
progressive increase in allegation of corruption involving public
servants. Understandably, cases
of this nature have attracted heightened media and public attention.
A general impression appears to have gained ground that the concerned
Central investigating agencies are subject to extraneous pressures
and have been indulging in dilatory tactics in not bringing the
guilty to book. The decisions of higher courts to directly monitor
investigations in certain cases have added to the aforesaid belief."
There can thus be no doubt that there is need for the exercise we
were called upon to perform and which has occasioned consideration of
this crucial issue by this Court in exercise of its powers conferred
by the Constitution of India.
"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. IVPROSECUTION 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.
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