Petition

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