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Central Vigilance Commission Amendment Bill, 2021

Central Vigilance Commission Amendment Bill, 2021

BACKGROUND

The Central Vigilance Commission was set up in the year 1964 upon the recommendation of the report of the Santhanam Committee. The main aim with which the committee associated the commission was to prevent corruption and to maintain integrity along with ensuring just and fair usage of administrative powers conferred to various authorities by the statute[1]Annexure VI, REPORT OF THE Committee on Prevention of /Corruption (Santhanam Committee Report), 1964 . However, some of the recommendation given by this committee was not taken into consideration by the government until the Supreme Court judgment was delivered in the Jain hawala case[2]Prem Prakash vs Union of India, Writ Petitions (Criminal) Nos. 340-343 of 1993 wherein the court ordered to give a statutory status should be conferred upon the Central Vigilance Commission.
Thereafter a series of ordinances and draft bill were introduced regarding this central vigilance commission but it was in 2003 that the Central Vigilance Commission Act[3]Central Vigilance Commission Act,2003, No 45, Acts of the Parliament, 2003(India) was passed in the parliament.

CENTRAL VIGILANCE COMMISSION (AMENDMENT 2021)

On 14th November 2021, an Ordinance[4]Ordinance 9 of 2021 was promulgated by the President of India amending the Section 25 of the Central Vigilance Commission Act, 2003 which was in turn placed before the Parliament on 3rd December 2021 and was eventually passed by the Parliament on 9th December, 2021.

CONTENT OF THE AMENDMENT BILL:

The amendment was done to clause (d) of Section 25, which states, “a Director of Enforcement shall continue to hold office for a period of not less than two years from the date on which he assumes office”. As per the amendment, the following has also additionally been inserted into clause (d) of Section 25 of the Central Vigilance Commission Act.
Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under clause (a) and for the reasons to be recorded in writing, be extended up to one year at a time.

In simple words, on the Committee’s proposal, the Director of Enforcement’s tenure can be extended for one year at a time, up to a maximum of five years.

REASONS FOR AMENDMENT (BY THE GOVERNMENT):

Black money, money laundering, corruption, etc., are posing a huge threat to the society at large and in order to counter this, in India one of the main setup is the Enforcement Directorate (ED). Acknowledging the fact that these wing needs international cooperation for the fights against these evil, restricting their term would not be an effective approach because more often than less, these officers interact in their personal capacity (of diplomacy, and information) rather than via institutional setups.

In addition to this, all major countries follow the practice of giving a longer tenure to such officers, two years being the minimum. However, as per our statute, two years seem to have become the upper limit because these officers are appointed to these high-level posts only close to their period of superannuation.
Further, India is a member of the Financial Action Task Force (FATF) (a UN body) and thereby has to abide by its recommendations, guidelines to prevent money laundering, and terror finance. Additional FATF peer review is scheduled to be conducted in the year 2022 or 2023. The FATF has recommended, “”Law enforcement and prosecuting authorities should have appropriate financial, human, and technical resources”. Countries should have systems in place to guarantee that these authorities’ workers adhere to high professional standards, including confidentiality rules, and are of high integrity and suitably skilled [5]FATF Recommendations 2012 (fatf-gafi.org)”. Considering this, India’s situation needs a huge increase in resources and facilities. Furthermore, the country is subjected to delicate investigation and judicial processes in connection with major money-laundering cases, which necessitate the extradition of fugitive offenders, which necessitates a continuous process. In order for the proper functioning of these, sometimes a tenure extension would be required. These were all the reasons provided by the government in the bill seeking the amendment of the Act.

REASONS FOR DEBATE IN THE AMENDMENT:

1. The amendment is in contravention to the SC judgment in Common cause vs Union of India [6]Para 20, Common cause vs Union of India, 2021 SCC OnLine SC 687

As per the decision, the SC stated that “Extension of term granted to officials who’ve already reached the age of superannuation must be undertaken only in rare and exceptional instances,” Additionally “Any extension of term given to those holding the position of Director of Enforcement once they reach the age of superannuation must be for a short duration,”
Now allegedly, as per the amendment this requirement of “rare and exceptional” has been compromised and now it is up to the discretion of the government which determines the continuity of officers after their superannuation.

2. The autonomous nature of these institutions is being compromised.

The prescription of a minimum period of two years service at the head post was being prescribed by the courts so that the people occupying the post have a functional autonomy without interference from outside. Now after this amendment, it is being alleged that, due to the manner in which the extension procedure is laid down, it is only in the hands of the government to decide upon such extension and this “Drip extension system” would eventually require the officers to be under the mercy of the government for their service tenure which essentially erodes the autonomy of these positions[7]https://www.livelaw.in/news-updates/lok-sabha-passes-bills-cbi-ed-directors-up-to-5-years-cvc-amendment-dspe-amendment-187312.
Along with these, the terms or procedures that will be adopted to grant such extension were also not disclosed.
As per one of the parliamentarian, “Raising their term from 2 to 5 years, one year at a time, will be more like dangling a carrot in front of all those officials”

3. The ordinance making power being misused:

In A.K. Roy v. Union of India [8]Para 16, A.K. Roy v. Union of India, (1982) 1 SCC 271, the SC was of the view that ordinance making power was constituted so that the government may take care of the urgent situations and emergencies which cannot be made to wait until parliament’s approval.
However, it is being alleged that there was no visible emergency so as to promulgate the said ordinance which sought to extend the term of the director of enforcement and that this provision is being misused so as to protect the interest of the present director, whose tenure was supposed to end before the next session of parliament could commence [9]Parliament Proceedings updates | The CVC (Amendment), 2021 and Delhi (Special) Police Establishment (Amendment) Bill, 2021 passed in the Lok Sabha, theHindu.com, Parliament Proceedings updates | The … Continue reading).

RESPONSE FROM THE GOVERNMENT:

Firstly, it was reasoned that these amendments were necessary to counter the ever-rising corruption cases along with the white-collar cases and international crimes. The government by effecting this amendment ought to strengthen its works as required by FATF (the UN body) because only if the heads are granted continuity, it will bring stability in the investigations.
Further, with regard to the autonomy, the explanation was that the government was more focused on limiting such extension to 5years rather than extending the term beyond 2years.
At last concerning the ordinance [10]Supra note at 6, it was reasoned that the government cannot stop working only because the parliament is not in session (Citing back to the washout which happened in the previous session of the parliament).

CONCLUSION:

It is not yet time so that we can make conclusive statements on the impact of this amendment on the Central Vigilance Commission Act but the precedents in the country clearly mandates that these institutions should be let alone without any unwanted interruptions. If by means of this bill, the government tries to obtain the strings of these institutions by using influence, then this bill will fail to meet the judicial and constitutional precedent, which advocates non-interference in these institutions working.
On the other hand, if properly implemented, this amendment will allow the heads to work properly and more efficiently by carrying out the investigation and maintaining the dignity and secrecy of such an institution.

 

 

Gokul Suresh Nair

3rd Year, B.Com.,LL.B (Hons), Tamil Nadu National Law University, Trichy

References

References
1 Annexure VI, REPORT OF THE Committee on Prevention of /Corruption (Santhanam Committee Report), 1964
2 Prem Prakash vs Union of India, Writ Petitions (Criminal) Nos. 340-343 of 1993
3 Central Vigilance Commission Act,2003, No 45, Acts of the Parliament, 2003(India
4 Ordinance 9 of 2021
5 FATF Recommendations 2012 (fatf-gafi.org
6 Para 20, Common cause vs Union of India, 2021 SCC OnLine SC 687
7 https://www.livelaw.in/news-updates/lok-sabha-passes-bills-cbi-ed-directors-up-to-5-years-cvc-amendment-dspe-amendment-187312
8 Para 16, A.K. Roy v. Union of India, (1982) 1 SCC 271
9 Parliament Proceedings updates | The CVC (Amendment), 2021 and Delhi (Special) Police Establishment (Amendment) Bill, 2021 passed in the Lok Sabha, theHindu.com, Parliament Proceedings updates | The CVC (Amendment), 2021 and Delhi (Special) Police Establishment (Amendment) Bill, 2021 passed in the Lok Sabha – The Hindu(last accessed on 11 Dec, 2021
10 Supra note at 6

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