The Functions and Powers of the Commission

(c) Inquiry on a Government reference

The Commission shall inquire or cause an inquiry or investigation to be made on a reference made by the Central Government alleging that a public servant, being an employee of the Central Government or of a corporation established by or under any Central Act, a Government company, a society or a local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act 1988, or an offence triable at the same trial.

Note the trigger: a reference by the Central Government. Under this clause the Commission does not act of its own motion. The Government decides what it will be asked to look at.

(d) Inquiry into a complaint against a listed officer

The Commission shall inquire or cause an inquiry or investigation to be made into any complaint against an official of a category specified in sub-section (2), alleging an offence under the Prevention of Corruption Act 1988 and an offence triable at the same trial.

This clause has no Government filter. It works on a complaint, and it is the clause that gives the Commission its own reach into the senior services. What "such category" means is the whole of sub-section (2), below.

(e) and (f) The two review functions

(e) Review the progress of investigations conducted by the Delhi Special Police Establishment into corruption offences.

(f) Review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act 1988.

Clause (f) is small on the page and large in practice. Chapter 740 works section 19 of the Prevention of Corruption Act: no court may take cognizance of a corruption offence against a public servant without the previous sanction of the competent authority, and a sanction request that is never decided kills a prosecution as effectively as a refusal. Clause (f) lets the Commission count the delays and put them in its annual report; it does not let it grant the sanction.

(g) Advice

Tender advice to the Central Government, to corporations established by or under any Central Act, to Government companies, societies and local authorities owned or controlled by the Central Government, on such matters as may be referred to it by that Government or by those bodies or otherwise.

The two words "or otherwise" matter. They free the advisory function from a reference and allow the Commission to advise on its own motion. Everything in chapter 700 on first and second stage advice rests on this clause.

(h) Superintendence over vigilance administration

Exercise superintendence over the vigilance administration of the various Ministries of the Central Government and of the corporations, Government companies, societies and local authorities owned or controlled by that Government.

The proviso, and it is a real cut: nothing in the clause authorises the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government, nor confers power on it to issue directions relating to any policy matters.

Read the two provisos of section 8 together and you have the honest description of this institution. Over the investigating agency it may not direct the outcome of a case. Over the Ministries it may not depart from the Government's own vigilance directions and may not touch policy. It is superintendence inside a frame the supervised party draws.

Section 8(2): who the Commission may inquire into

Clause (d) works only against the persons listed in sub-section (2):

(a) members of All-India Services serving in connection with the affairs of the Union, and Group 'A' officers of the Central Government;

(b) such level of officers of the corporations, Government companies, societies and other local authorities owned or controlled by the Central Government as that Government may by notification in the Official Gazette specify; with a proviso that until such a notification issues, all officers of those bodies are deemed to be within clause (d).

(c), inserted by the Lokpal and Lokayuktas Act 2013, section 58 and the Schedule, with effect from 16 January 2014: on a reference made by the Lokpal under the proviso to section 20(1) of that Act, the persons within clause (d) shall also include members of Group B, Group C and Group D services of the Central Government, and such level of officials or staff of those public sector bodies as the Government may notify, with the same interim deeming proviso.

Two things follow, and both are examinable.

First, the ordinary jurisdiction is senior. All-India Services and Group 'A'. The Commission is not a grievance office for the whole civil service; it is aimed at the levels where discretion and money meet.

Second, the Lokpal can enlarge it. Chapter 640 works section 20 of the Lokpal Act, but the shape is already visible here: where the Lokpal receives a complaint against a Group B, C or D servant it may refer it to this Commission, and the reference itself widens the Commission's jurisdiction for that case. The two statutes were deliberately wired together in 2014, and clause (c) is the first wire.

What the section does not give

No police power of its own. The Commission inquires or causes an inquiry to be made. Chapter 640's section 11A supplies a Director of Inquiry; the investigating hands remain the Delhi Special Police Establishment's and the Ministries'.

No power to prosecute. It reviews sanction applications under clause (f); it neither grants sanction nor files a charge-sheet.

No power to punish. Chapter 670 works sections 17 to 19: the Commission's role in a disciplinary proceeding is to receive the inquiry report, call for information and be consulted. The order is the disciplinary authority's.

No binding advice. The word in clause (g) is tender. Chapter 700 shows what happens when the advice is not accepted, and chapter 750 turns the whole list into the standard criticism.

A worked example

A newspaper alleges that a Group 'A' officer of a Central Ministry cleared a contract in return for a payment.

Clause (d) fits. He is a Group 'A' officer of the Central Government, within section 8(2)(a), and the allegation is of an offence under the Prevention of Corruption Act 1988. The Commission may inquire or cause an inquiry or investigation to be made into the complaint. No Government reference is needed; clause (c) would need one, clause (d) does not.

Suppose the Commission asks the Delhi Special Police Establishment to register a case and it does. Clause (a) gives the Commission superintendence over that investigation and clause (e) lets it review the progress. But the proviso to clause (b) forbids it to require the case to be investigated or disposed of in a particular manner, so it may ask why the case has not moved in eight months and may not direct that the officer be charge-sheeted.

The investigation ends in a request for sanction to prosecute, and the Ministry sits on it for a year. Clause (f) lets the Commission review the pendency and record it. It cannot grant the sanction; that is section 19 of the Prevention of Corruption Act and it belongs to the competent authority.

Now change the officer to a Group C clerk. Section 8(2)(a) does not reach him and no notification helps, because clause (b) is about public sector bodies and not about Central Government services. The Commission has no clause (d) jurisdiction, unless the Lokpal, on a complaint before it, makes a reference under the proviso to section 20(1) of the Lokpal Act, at which point clause (c) brings him in.

And if the allegation were about the Ministry's vigilance set-up rather than a person, clause (h) applies, subject to its proviso: the Commission may not act inconsistently with the Government's own vigilance directions and may not issue directions on policy.

What beginners get wrong

That the Commission controls the Central Bureau of Investigation. It exercises superintendence over its corruption investigations only, and the proviso to clause (b) forbids it to require any case to be investigated or disposed of in a particular manner. Administrative control of the agency is elsewhere: chapter 790.

That the Commission investigates. It inquires or causes an inquiry or investigation to be made. The distinction between an inquiry and an investigation is not decorative; chapter 640 turns on it.

That clause (g) needs a reference. The words "or otherwise" remove that requirement.

That the Commission's jurisdiction covers all Central Government servants. Ordinarily it is All-India Services and Group 'A' only. Group B, C and D come in only on a Lokpal reference under clause (c).

That clause (h) makes the Commission the master of departmental vigilance. The proviso subordinates its superintendence to the Government's own vigilance directions and bars policy directions altogether.

Quick revision

s.8(1)(a): superintendence over the Delhi Special Police Establishment, so far as it relates to Prevention of Corruption Act investigations and offences triable at the same trial.

s.8(1)(b): directions to it for discharging its responsibility under s.4(1) of the 1946 Act. Proviso: the Commission shall not require any case to be investigated or disposed of in a particular manner.

s.8(1)(c): inquire or cause an inquiry on a reference by the Central Government.

s.8(1)(d): inquire or cause an inquiry into a complaint against the officers listed in s.8(2).

s.8(1)(e): review the progress of investigations. s.8(1)(f): review the progress of pending sanction applications.

s.8(1)(g): tender advice to the Government and the public sector, on a reference or otherwise.

s.8(1)(h): superintendence over vigilance administration. Proviso: not inconsistently with the Government's vigilance directions, and no policy directions.

s.8(2): All-India Services serving under the Union and Group 'A' officers; notified levels in public sector bodies, all officers until notification; and, on a Lokpal reference under the proviso to s.20(1) of the Lokpal Act, Groups B, C and D as well, inserted with effect from 16 January 2014.

Test yourself

1. Write in detail about the functioning of the Central Vigilance Commission. Set out section 8(1) clause by clause: superintendence over the Delhi Special Police Establishment in corruption investigations under clause (a); directions to it under clause (b) for discharging its responsibility under section 4(1) of the 1946 Act; inquiry on a Central Government reference under clause (c); inquiry into a complaint against a listed officer under clause (d); review of the progress of investigations under clause (e) and of pending sanction applications under clause (f); advice to the Government and to the public sector on a reference or otherwise under clause (g); and superintendence over the vigilance administration of the Ministries and public sector under clause (h). Then give the two provisos their weight: the Commission may not require any case to be investigated or disposed of in a particular manner, and it may not supervise vigilance administration inconsistently with the Government's own directions or issue directions on policy. Complete the answer with the categories in section 8(2), with the composition in sections 3 and 4 and the tenure in sections 5 and 6, and with the working machinery in the Chief Vigilance Officers and the two stages of advice.

2. Over whom may the Commission inquire under section 8(1)(d)? Members of the All-India Services serving in connection with the affairs of the Union and Group 'A' officers of the Central Government; officers of the notified level in corporations established by or under a Central Act, Government companies, societies and local authorities owned or controlled by the Central Government, with all officers of those bodies deemed included until the notification issues; and, on a reference made by the Lokpal under the proviso to section 20(1) of the Lokpal and Lokayuktas Act 2013, members of Group B, Group C and Group D services of the Central Government and the notified level of staff of those bodies. Clause (c) of section 8(2) was inserted by that Act with effect from 16 January 2014.

3. What is the effect of the proviso to section 8(1)(b)? It provides that in exercising superintendence under clause (a) or giving directions under clause (b), the Commission shall not exercise its powers so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner. It therefore separates supervision of the agency's functioning from control of an individual case, so that the Commission may ask why an investigation is delayed or how the agency's corruption work is being conducted generally, but may not direct that a particular person be charge-sheeted or that a particular case be closed.

4. Distinguish the Commission's power under clause (c) from that under clause (d). Clause (c) is triggered by a reference from the Central Government and extends to any employee of the Central Government or of the public sector bodies named. Clause (d) is triggered by a complaint, needs no Government reference, and extends only to the categories specified in section 8(2). Clause (c) is therefore wider in the persons it covers and narrower in who may set it in motion; clause (d) is the Commission's own reach, and it is confined to the senior levels unless the Lokpal enlarges it.

5. Does section 8 give the Commission power to punish a corrupt officer? No. Its powers under section 8 are supervisory, inquisitorial, reviewing and advisory. It may inquire or cause an inquiry or investigation to be made, review the progress of investigations and of sanction applications, and tender advice, but it does not investigate as a police force, does not grant or refuse sanction to prosecute, does not prosecute and does not impose a penalty. The penalty is imposed by the disciplinary authority and the prosecution is conducted in a criminal court, which is the reason the Commission is habitually described as an advisory body.