Vineet Narain & Ors Vs. Union of India & ANR [1997] INSC 949 (18 December 1997)
S.P. BHARUCHA, S.C. SEN
ACT:
HEADNOTE:
Verma.CJI:
These writ potitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the accusation made was against high dignitaries. It was not the only matter of its kind during the recent past. The primary question was: Whether it is within the domain of judaical review and it could be an effective instrument for activating the investigative process which is under the control of executive? The focus was on the question, whether any judicial remedy is available in such a situation? However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judaical review to permit intervention by the count t find a solution to the problem. This case has develop to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situation. It has also generated awareness of the need of probity in public life and provided mode of enforcement of accountability in public life. Even though the matter was brought to the court by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners' counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone else was shut out but permission was granted to all, who so desired, to render such assistance as they could, and to provide the relevant material available with them to the amicus curiae for being placed before the court for its consideration. In short, the proceedings in this matter have had great educative value and it does appear that it has helped in future decision making and functioning of the public authorities.
We must at the outset place on record our great appreciation of the assistance rendered by the amicus curiac, Shri Anil Divan and the lawyers assisting him, namely, Shri Abani Kumar Sahu. Shri Anil Kumar Panda, Shri Mukul Mudgai, Shri Anil Nauriya and also Ms. Latha Krishnamurthy. We also place on record equal appreciation of the law officers and the team which has assisted them in these proceedings. At the commencement of the proceedings, the then Solicitor General Shri Dipankar P. Gupta appeared for the Union of India and the government agencies. Later after Shri depankar P.Gupta demitted office, the Attorney General Shri Ashok H.Desai appeared in this case throughout.
The law officers and their team of assistants, namely, Shri K.N.Bhat, Additional Solicitor General, Shri Pallav Shishodia, Shri Parmeswaran and Ms. Anuradha Bindra, rendered very able assistance throughout and discharged the duty expected of law officers. All of them at great personal inconvenience and expence, rose to extraordinary heights in keeping with the true traditions of the Bar. In essence, everyone of them discharged the role of animus curiae, without, at any stage, adopting the adversarial stance. If it has been possible to achieve some success in these proceedings to improve and innovate the procedure and fructify new ideas for betterment of the polity, it is only because of the positive response of the Bar and the assistance rendered by it. We must also record our appreciation of the officers of the CBI and the Revenue Department who actively participated in these proceedings and showed a definite improvement in their perception of the rule of law as the case progressed; and their ability to perform improved once they were assured of protection in the honest discharge of their duties.
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.
Facts A brief narration of the facts of this case sis necessary; On 25th March, 1991, one Ashfak Hussain Lone, alleged to be an official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central Bureau of Investigation (CBI) on the premises of Surrender Kumar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two note books from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and our of power, and of high ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, the present writ petitions were filed on 4th October, 1993, in the public interest under Article 32 of the Constitution of the India.
The gist of the allegations in the writ petitions is that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jan diaries";
that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through `havala' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration that the CBI and other Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed and offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies the compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. The writ petitions prayed, inter alia, for the following reliefs:
"[a] that the above said offences disclosed by the facts mentioned in the petition be directed to be investigated in accordance with law;
[b] that this Hon'ble Court may be pleased to appoint officers of the police or others in whose integrity. independence and competence this Hon'ble Court has confidence for conducting and/or supervising the said investigation;
[c] that suitable directions be given by this Hon'ble Court and orders issued to ensure that the culprits are dealt with according to law;
xx xx xx [f] that directions be given so that such evil actions on the part of the investigating agencies and their political superiors are not repeated in future." It will be seen that the reliefs sought in the writ petitions fall into two broad classes. The first class relates to investigations in the matter of the 'Jain diaries". The second class [prayer (f)[ relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted.
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. Our reasoned order are dated. 18.4.1995,16.1.1996 [1996 (2) Scale (SP) 42], 30.1.1996 [1996 (2) SCC 199], 22.2.1996 [1996 (2) Scale (SP) 84], 1.3.1996 [1997 (4) SCC 778], 13.3.1996 [1996 (4) Scale (SP) 3], 1.5.1996 [1996 (4) Scale (SP) 56], 26.7.1996 (6) Scale (SP) 24], 9.7.1997 [1997 (5) Scale 254]. Orders in similar matters, being the orders dated 12.2.1996 [1996 (3) Scale (SP) 35], 2.14.1996, 26.4.1996 [1996 (4) Scale (SP) 71], 26.7.1996 [1996 (6) Scale (SP) 23] and 7.10.1996 [1996 (6) SCC 354] in Writ Petition (Civil) No. 640 of 1995 - Anukul Chandra Pradhan vs. Union of India and Others- and orders dated 24.2.1997 and 18.3.1997 in Writ Petition (Civil) No. 38 of 1997 - Dr. Subramaniam Swamy vs. Director, CBI & Ors., are also relevant.
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 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".
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 first order to this effect was made on 5.12.1994 when the CBI Director was required to personally supervise the investigations carried on by the CBI as the overall incharge and to report to the court the progress made from time to time. The true scope of the matter was indicated in an order dated 30th January, 1996 [reported in 1996 (2) SCC 199] as under:
"The true scope of this writ petition has been indicated during the carlicr hearings. At this stage, when some charge sheets have been filed in the Special Court and there is considerable publicity in the medin regarding this matter, with some speculation about its true scope, it is appropriate to make this order to form a part of the record.
The gist of the allegations in the writ petition are that Government agencies, like the CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by the CBI.
It is alleged that the apprehending of certain terrorists led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'havala' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the CBI and other Government agencies have failed to fully investigate into the matter and take it to the logical end point of the trail and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to person in accordance with law against cach and every person involved, irrespective of the height at which he is placed in the power set up.
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".
Investigation into accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.
In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.
In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
However, if in respect of any such person the final report after full investigation is that no prima facic case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if and when that occasion arises.
We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court.
We may add that on account of the great public interest involved in this matter, the CBI and other Government agencies must expedite their action to complete the task and prevent pendency of this matter beyond the period necessary. It is needless to observe that the results achieved so far do not match the available time and opportunity for a full investigation ever since the matter came to light. It is of utmost national significance that no further time is lost in completion of the task. " Relevant portions of other significant orders dated 1.3.1996 [reported in 1997 (4) SCC 778] and 9.7.1997 [reported in 1997 (5) Scale 254] read as under:
Order dated 01.03.1996 :
...... ...... .....
.
V. Criminal Misc. Petition Nos. 1153/1996:
We have heard Shri Anil Diwan ands the learned Solicitor General, Insofar as the larger relief of suitable guidelines is sought therein, that matter is deferred for consideration at the appropriate later stage of these proceedings. As for the interim relief claimed in the application, it is sufficient for us to direct as stated hereafter.
To eliminate any impression of bias and avoid erosion of credibility of the investigations being made by the C.B.I. and any reasonable impression of lack of farness and objectivity therein, it is directed that the C.B.I. would not take any instructions from report to, or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigations into any accusation. This direction applies even ion relation to any authority which exercises administrative control over the C.B.I. by virtue of the office he holds, without any exception. We may add that this also accords with what the Learned Solicitor General has very fairly submitted before us about the mode of functioning of the C.B.I. in this matter.
We also place on record the further statement made by the learned Solicitor General on instructions from C.B.I. Director that neither the C.B.I. Director nor any of his officers has been reporting to any authority about any particulars relating to these investigations.
No further direction in this behalf is necessary at this stage." Order dated 09.07.1997 :
"The question pertaining to interference with or shifting of any of the officer in any of the investigative teams of the C.B.I.
or any other connected investigative agency such as the Enforcement Directorate in the several matters under investigation by them which are being monitored by this Court and some of the High Courts, is under consideration by this Court in this matter which is being heard by a 3-Judge Bench and for this reason the same question even though raised in some other pending matters in this Court is not being considered therein. It is therefore, inappropriate that the same question any question connected with it is in any manner be entertained or dealt with by any other court including and High Court in any of the matters before it. It has become necessary to say so in view of the fact that we are informed that the same question in different forms is being raised in some other courts including High Courts by different persons. The question being comprehensively dealt with by this 3- Judge Bench in this matter by this Court, we make it clear that no other court including any High Court will entertain or deal with the same in any direct or indirect manner.
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 i n the competent court is now a separate proceeding.
After the commencement of these proceedings, some other matters of a similar nature came to this Court in which the inaction of the investigating agencies to investigate into some serious offences was alleged. Two such significant matters are Writ Petition (Civil) No. 640 of 1995 - Anukul Chandra Pradhan vs. Union of India and Others - and Writ Petition (Civil) No. 38 of 1997 - Dr. Subramaniam Swamy vs. Director, CBI & Ors. These cases revealed a serious situation eroding the rule of law, where the accusation was against persons holding high offices and wielding power.
Relevant portions of some significant orders made in the above two cases read as under :- Anukul Chandra Pradhan Order dated 12.02.1996 [reported in 1996 (3) Scale (SP) 35]:
"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.
Order dated 02.04.1996 ... ... ...
Learned S.G. as well as Shri Anil Diwan, learned counsel, are heard, The Secretary, Revenue Shri Sivaraman, the C.B.I. Director - Shri K. Vijay Rama Rao and the Commissioner of Police - Shri Nikhil Kumar are also present. We direct that from now each of these three officers would be overall incharge of the investigations which are being carried on by their respective departments pertaining to the matters within the scope of this Writ Petition. Learned S.G. on instructions prayed for deferring t he further hearing to enable the above officers to report the progress made in the investigations by these agencies on the next date." Order dated 07.10.1996 [reported in 1996 (6) SSC 354]:
... ... ...
In accordance with the directions so given, it has been reported to us that chargesheets have been filed by the C.B.I. in two cases and the Delhi Police in one case which they were investigating. These cases are :
1) St. Kitts' Forgery Case.
(Chargesheet filed by C.B.I.) 2) Lukhubhai Pathak Cheating case.
(Chargesheet field by C.B.I.) 3) Rajendra Jain case (Chargesheet filed by Delhi Police) In view of the fact that Chargesheet has been filed under Section 173 Criminal Procedure Code in each of the above three cases in the competent court, it is that court which is now to deal with the case on merits, in accordance with law. Any direction considered necessary for further investigation, if any, or to proceed against any other person who also appears to have committed any offence in that transaction, is within the domain of the concerned court according to the procedure prescribed by law. The purpose of this proceeding is to command performance of the duty under law to property 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 i n accordance with law without the slightest impression that there is any parallel proceeding in respect of the same mttere pending in this court.
We may also observe, that the concerned court dealing with the above matters has to bear in mind that utmost expedition in the trial and its early conclusion is necessary for the ends of justice and credibility of the judicial process. Unless prevented by any dilatory tactics of the accused, all trials of this kind involving public men should be concluded most expeditiously, preferably within three months of commencement of the trial. This is also the requirement of speedy trial read into Article 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.
We request Shri Anil Divan, Sr. Advocate to appear as amicus curiae in this case......" Order dated 18.03.1997 :
"... ... ...
In accordance with the practice followed by the Court in other similar pending matters, we also direct that any person wishing to bring any material or point before this Court for consideration in this behalf may do so by furnishing the same to Shri Anil B.
Divan, the learned amicus curiae, who would take the necessary steps in accordance with the need and relevance thereof, to place it before this Court in this proceeding." In-camcra 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. 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." Before we refer to the report of the Independent Puri Committee (IRC), it would be appropriate at this stage to refer to the Single Directive issued by the Government which requires prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive is a consolidated set of instructions issued to the CBI by the various Ministries/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contains certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. Directive No. 4.7(3) in its present form is an under :- "4.7(3)(i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent of above in the Central government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary of above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by the Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI and the Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matters shall be referred by CBI to Secretary (Personnel) for placement before the Committee referred to in Clause (ii) above. Such a matter should be considered and disposed of by the Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the king mentioned in (i) above the case should be submitted to the Prime Minister for orders." We were informed that the above Directive, in its application, is limited to officials at decision making levels in the Government and certain other public institutions like the RBI,SEBI, nationalised banks, etc. and its scope is limited to official acts. The stated objective of the Directive is to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations. It is said that such protection to officers at the decision making level is essential ton protect them and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was also stated that absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and Vexatious inquiries/investigations. It was made clear that the Directive does not extend to any extraneous or non-official acts of the government functionaries and a time frame has been prescribed for grant of sanction in such cases to prevent any avoidable delay.
Two questions arise in relation to Directive No. 4.7(3) of the Single Directive, namely, its propriety/legality and the extent of its coverage, if it be valid.
The learned Attorney General categorically stated in response to our repeated query that the Single Directive acts as a restriction only on the CBI but is inapplicable against the general power or the State Police to register and investigate any such offence under the general law, i.e., Code of Criminal Procedure. He added that it is also not an inhibition against a complaint being lodged under the Cr. P.C. before the competent court for any such offence.
The Single Directive was sought to be supported by the Attorney General on the ground that the CBI being a special agency created by the Central Government, it was required to function according to the mandate of the Central Government which has constituted this special agency for specified purpose. The desirability of the Single Directive was supported by the learned Attorney General on the ground that the officers at the decision making level need this protection against malicious or vexatious investigations in respect of honest decisions taken by them. We were also informed that during hearing of this matter when this aspect was being debated, the Ministry of Finance has set up a High Power Board of experts in finance and a retired High Court Judge to examine the merits in every case for he purpose of grant of sanction to the CBI for recording the information and investigating into any such offence, and a time frame for the devision has also been specified. Similarly, in the case of government servants, the authority for grant of sanction with a provision for appeal in case the sanction is declined has been provided. It was submitted that such a structure to regulate the grant of sanction by a high authority together with a time frame to avoid any delay is sufficient to make the procedure reasonable and to provide for an objective decision being taken for the grant of sanction within the specified time. 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. Reliance was placed by the learned Attorney General on the decisions of this Court in K.Veeraswami vs. Union of India and Others, 1991 (3) SCC 655 and State of Bihar and Another etc. vs. J.A.C. Saldanha and Others. 1980 (1) SCC 554 to support the argument of legality of the Single Directive. We shall advert to this aspect later.
The provision made for deciding the question of grant of sanction in the cases of officers to whom the Single Directive applies is as under :- OFFICE MEMORANDUM DATED FEBRUARY 17,1997 OF THE RESERVE BANK OF INDIA, CENTRAL OFFICE, DEPARTMENT OF ADMINISTRATION & PERSONNEL MANAGEMENT "Advisory Board on bank frauds It has been decided to set-up an `Advisory Board on bank frauds' to advise the Bank on the cases referred by the Central Bureau of Investigation either directly or through the Ministry of Finance for investigation/registration of cases against bank officers of the rank of General Manager and above. The constitution of the Board will be as under :- Shri S.S. Tarapore, Chairman Ex-Deputy Governor Reserve Bank of India Justice Shri B.V. Chavan Retd. Judge of Bombay High Court Member Services Board.
Shri B.N. Bhagwat, Retd. Secretary, Member Government of India.
Shri Satish Sawhney, Retd. Director General of Police Member Maharashtra.
Shri Y.H. Malegam, Member Chartered Accountant & Senior Partner in M/s. S.S. Billimoria & Co." Another action taken by Government of India is, as under :- Letter No. I 11011/33/95-IS DI(B) dated 1st, 2nd August, 1995 of Ministry of Home Affairs, Government of India "Government had through its Order No.S-7937/SS(ISP)/93 dated 9th July, 1993 constituted a Committee under the Chairmanship of Former Home Secretary (Shri N.N. Vohra) to take stock of all available information about the activities of the crime syndicates/mafia organisations which had developed links with and were being protected by Government functionaries and political personalities. The Vohra Committee in its Report submitted to the Government recommended a Nodal Set-up directly under the Home Secretary to which all existing intelligence and enforcement agencies of the Government shall promptly pass on any information which they may come across, relating to links of crime syndicated with functionaries of the Government and political personalities.
2. Accordingly, Government have now decided to set up a Group under the Chairmanship of the Home Secretary to act as a Nodal Set-up to collect and collate the information and to decide on the action that is required to be taken to ensure that the nexus of criminals with businessmen, politicians or bureaucrats is broken.
3. The Group shall comprise:
i) Home Secretary, Chairman
ii)Secretary(Revenue) Member
iii) Director, IB Member
iv)Director ,CBI Member
v) Secretary, R&AW Member
4. It is fell that it would be necessary for the Group to interact with various State Governments in order to both make the use of such information as may be available with the States as well as to utilities the expertise of the relevant agencies of the State Governments. For this purpose, the above Group would interact appropriately from time to time with Chief Secretaries and other senior functionaries of the State Governments.
5. All the Intelligence and enforcement agencies under the Government like the Intelligence Bureau, the CBI and various bodies functioning under the Department of Revenue shall forthwith report to the Home Secretary whenever substantive information/evidence of collusion of officials/politicians with criminal syndicates comes to their knowledge in the course of their working. The Group shall meet periodically to decide upon the action required to be taken and identify an agency or agencies to take up further investigations. The Nodal Group would also review the information in the above context already available with the various agencies and decide upon the follow up action that is required to be taken.
6. This issues with the approval of Home Minister." Report of IRC The IRC has in its report accepted the legality of the Single Directive placing reliance on the decision of this Court in K. Veeraswami (supra). After considering the functions of the CBI and the Directorate of Enforcement, it has made certain recommendations which are as under :- "MEASURES FOR SPEEDY INVESTIGATIONS AND TRIALS
4.1 The Committee recommends that the following measures should be taken to ensure speedy investigations and trials :
a) Special Courts should be got established at identified stations to deal exclusively with FERA offences so that cases ca be decided speedily.
b) To ensure against delays in investigations abroad, the Revenue Secretary should be the competent authority to approve filing of applications for Letters Rogatory.
c) The Directorate of Enforcement should be delegated powers to appoint special counsels for conducting trials, who may also act as legal advisers for the Department in respect of the cases entrusted to them.
d) In many of the major cases of the Directorate, the suspects have been able to abuse the process of law by stalling the investigations at the initial stages through litigation at various levels, obtaining stay orders from High Courts and injunctions on flimsy grounds. In consultation with the Attorney General, the Revenue Department may examine the possibility of making a representation to the Apex Court to consider issuing appropriate directions so that the pace and progress of cases is not thwarted by interlocutory procedures or stay orders issued by the Courts below.
e) Taking into account the instances in which suspected persons have been able to stall investigations on alleged health grounds, the Revenue Department should approach the Ministry of Health to establish standing medical boards in identified cities to examine such persons. Such boards should comprise outstanding medical experts of unimpeachable integrity. The Courts can be requested to refer the prayer of the accused for staying proceedings on health grounds to such medical boards before passing judgement." "CHECKS AND BALANCES
5.1 The Directorate must be provided adequate financial and administrative delegations to enable it to exercise autonomy in the conduct and pursuit of investigations without let or hindrance. Side by side, it is necessary to provide appropriate checks and balances to ensure against miscarriage of justice. In this context, the Committee recommends the following :
a) The Revenue Department should undertake regular review of the progress of cases before the Directorate. To enable this, the Directorate should regularly furnish information regarding the number of cases instituted, progress of investigations, cases settled in adjudication and those put to Courts. The Committee note that while such information is already being supplied in reply to Parliament Questions, information to be placed before the Parliamentary Committee/Standing Committee, etc., there is no established procedure for the Directorate to furnish relevant information in well devised format.
b) The present system of the Directorate furnishing fortnightly reports providing statistical information and brief outline of the cases taken up for investigation should be further fine tuned. These reports should be carefully examined by the Revenue Department to ensure that the Directorate is performing its functions officiently. The Revenue Secretary should hold regular review meetings with the Director Enforcement, also involving the Director Revenue Intelligence and other concerned officers.
c) Guidelines relating to interrogation, prosecution, adjudication, time frame for completion of investigation, etc., have been issued by the Directorate from time to time. These guidelines should be comprehensively reviewed and, based thereon, a circular should be released for the information of the public at large, to enable all concerned to know the systems and procedures followed by the Directorate.
This shall contribute to greater transparency. This effort should be concluded within 2-3 months.
5.2 It is importance that the Directorate lays down a clearly spelt out time frame for the completion of investigation, launching of prosecution and completion of adjudication proceedings and for the Director to ensure that the prescribed time limits are strictly adhered to. The Committee are of the view that the Directorate would be able to more efficiently discharge its functions if immediate steps are taken to upgrade the level and quality of its in- house legal advice mechanism. At our request, the Cabinet Secretary convened a meeting with the Revenue Department, Enforcement Directorate and other concerned officers to consider various proposals for strengthening the Directorate. The Committee hope that the various decisions taken at t he Cabinet Secretary's level shall witness implementation within 6-8 weeks.
5.3 The Committee recommends that the Directorate should take time bound steps to establish a grievances redressal mechanism to promptly deal with complaints received from he public against actions of the Enforcement Directorate.
Insofar as complaints of arbitrary action by senior officers of the Directorate are concerned, the Committee recommends that these should b e looked into by a Committee headed by the Central Vigilance Commissioner and comprising Revenue Secretary, Director General Revenue Intelligence, Enforcement Director and a senior representative of the Ministry of Law.
5.4 As regards the pursuit of cases which appear to have a politico-beaurocrai-criminal nexus, the Home Secretary agreed with the Committees suggestion that the Nodal Agency in the Home Ministry (chaired by Home Secretary) shall also include Member (Investigation) of the Central Board Of Direct Taxes, Director General Revenue Intelligence and the Director Enforcement as members.
5.5 The Committee recommends that the Annual Report of the Department of Revenue should have a section devoted exclusively to the functioning of the Enforcement Directorate. This report should highlight the number of cases taken up for investigation by ED, raids and searches conducted, amount of Indian and foreign currency seized, etc. The report should also indicate the number of persons arrested, prosecutions launched and convictions ordered by the Courts. The Committee feels that enhanced public knowledge about the work being done by the Directorate shall demystify its operations and contribute to improved public confidence." "SUMMARY OF RECOMMENDATIONS I. CBI AND CVC
1. CVC to be conferred statutory status; appointment of Central Vigilance Commissioner to be made under the hand and seal of the President (paper 4.2)
2. Constitution of a Committee for selection of cvc (paper 4.3)
3. CVC to overview CBI'S functioning (para 5)
4. CBI's reporting to Government to be streamlined without diluting its functional autonomy (para 3.3)
5. CVC to have a separate section in its Annual Report on the CBI's functioning after the supervisory functioning transferred to it (para 6)
6. Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel (para 3.2)
7. Central Government to pursue with the State Governments to set up credible mechanism for selection of Police Chief (para 8.3)
8. Director CBI TO Have a minimum tenure of 2 years (para 8.4)
9. Transfer of incumbent Director CBI would need endorsement of the Selection Committee(para 8.5)
10. Director CBI to ensure full freedom for allocation or work within the Agency, including constitution of investigation teams(para 8.6)
11. Selection/extension of tenure of officers upto to the level of Joint Director (JD) to be decided by a Board under Central Vigilance Commissioner; JD and above would need the approval of ACC(para 8.7)
12. Change in the existing Tenure Rules not recommended (para 8.8)
13. Proposals for improvement of infrastructure, methods of investigation, etc., to be decided urgently (para 8.9.2)
14. No need for creation of a permanent core group in the CBI (para 8.9.3)
15. Severe disciplinary action against officers who deviate from prescribed investigation procedures (para 9.1)
16. Director CBI to be responsible for ensuring time limits for filing charge sheets in courts (para 9.2)
17. Document on CBI's functioning to be published within three months (para 9.4)
18. Essential to protect officers at the decision making levels from vexatious enquiries/prosecutions (para 10.6)
19. Secretaries to adhere strictly to prescribed time frames for grant of permission for registration of PE/RC. CBI to be free to proceed if decision not conveyed within the specified time (para 10.9)
20. Secretary of Administrative Ministry to convey a decision regarding registration of PE/RC within 2 months of receipt of request. If not satisfied with decision, Director CBI free to make fresh reference to the Committee headed by Cabinet Secretary within a period of four weeks and the latter to decide thereon within a period of four weeks (para 10,10)
21. Protection under the Single Directive not to cover offences like bribery, when prima-facic established in a successful trap (para 10.12)
22. Cases of disproportionate assets of Central Government and All India Services Officers to be brought within the ambit of the Single Directive (para 10.13) 23. Time limit of 3 months for sanction for prosecution.
Where consultation is required with the Attorney General or the Solicitor General, additional time of one month could be allowed (paras 10.14 and 10.15)
24. Government to undertake a review of the various types of offences notified for investigation by the CBI to retain focus on anti-corruption activities which is its primary objective (para 11.1)
25. Cases falling within the jurisdiction of the State Police which do not have inter-state or inter-national ramification should not be handed over to CBI by States/Courts (para 11.2)
26. Government to establish Special Courts for the trial of CBI cases (11.3)
27. Severe action against officials found guilty of high handedness; prompt action against those officials chastised by the Courts (para 11.4)
28. Director CBI to conduct regular appraisal of personnel to weed out the corrupt an inefficient, and maintain strict discipline within the organisation (para 11.5) II. ENFORCEMENT DIRECTORATE
1. Selection Committee headed by Central Vigilance Commissioner to recommend panel for appointment of Director Enforcement by the ACC (para 2.2) 2. Director Enforcement to have minimum tenure of 2 years.
For his premature transfer, the Selection Committee headed by Central Vigilance Commissioner to make suitable recommendations to the ACC (para 2.3)
3. Post of Director Enforcement to be upgraded to that of Additional Secretary/Special Secretary to the Government (para 2.4)
4. Officers of the Enforcement Directorate handling sensitive assignments to be provided adequate security for enabling fearless discharge of their functions (para 2.5)
5. Extension of tenures up to the level of Joint Directors in the Enforcement Directorate to be decided by a Committee headed by Central Vigilance Commissioner (para 2.6)
6. Proposals for foreign visits to conduct investigations to be cleared by the Revenue Secretary and the Financial Adviser (para 2.7)
7. While enjoying full internal autonomy Enforcement Directorate to be made accountable. Responsibility of Government to ensure efficient an impartial functioning (para 3.1)
8. Premature media publicity to be ensured against (para 3.3)
9. Adjudication proccedings/prosecution to be finalised by the Enforcement Directorate within a period of one year (para 3.4)
10. Director Enforcement to monitor speedy completion of investigation and launching of adjudication/prosecution. Revenue Secretary to review regularly (para 3.4)
11. The Director Enforcement to keep close watch against vexatious search; action against functionaries who act without due care (para 3.5)
12. Special Courts to be established to deal with FERA offences for speedy completion of trials [para 4.1(a)]
13. For speedy conduct of investigations abroad, Revenue Secretary be authorised to approve filing of applications for Letters Rogatory [para 4.1(b)]
14. The Enforcement Directorate to be delegated powers to appoint Special Counsels for trials [para 4.1@]
15. The Revenue Department to consult Attorney General regarding measures against conclusion of cases being thwarted by stay orders, etc. [para 4.2(d)]
16. Revenue Department to approach Health Ministry to establish Standing Medical Boards in identified cities for examination of accused persons seeking determent of proccedings on health grounds [para 4.1(c)]
17. Revenue Department to undertake regular reviews of cases pending with the Directorate [para 5.1(a) and (b)].
18. Comprehensive circular to be published by the Directorate to inform public about procedures/systems of its functioning [para 5.2@]
19. In-house legal advice mechanism to be strengthened (para 5.2)
20. Proposals for strengthening the Directorate to be implemented within 8 weeks (para 5.2)
21. Directorate to establish a grievance redressal mechanism (para 5.2)
22. Committee headed by Central Vigilance Commissioner to decide complaints of arbitrary action by Directorate officials (para 5.3)
22. Committee headed by Central Vigilance Commissioner to decide complaints o f arbitrary action by Directorate officials (para 5.3)
23. Nodal Agency headed by Home Secretary on politico- beaurocrat-criminal nexus to include Member Investigation CBDT, Director General Revenue Intelligence and Director Enforcement as members (para 5.4)
24. Annual Report of the Department of Revenue to contain an exhaustive section on the working of the Enforcement Directorate (para 5.5)
25. Suitable incentives to be provided to functionaries of Enforcement Directorate at various levels, to attract best material, to be decided within tow months (para 6.1) III. NODAL AGENCY ON CRIMINAL NEXUS
1. Requirements of inter-agency do-ordination at fields unit level to be evolved by Home Secretary (para 2.1)
2. Na's functioning to be watched for some time before considering need for structural changes (para 3)
3. Home Secretary will hold meetings of NA every month (para 3)" The reference to paragraphs within brackets at the end of each recommendation is to the paragraphs of the report containing discussion pertaining to the Central Bureau of Investigation (CBI) and Directorate of Enforcement in Part II of the report. These recommendations have, therefore, to be read along with the discussion in the corresponding paras in Part I and Part II of the report.
Need for Court's 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. The conclusions reached b y the IRC and the recommendation it has made for improving the functioning and thereby the image of these agencies is a further reaffirmation of this general belief. Ther
