The Director, and the Committee

And notice what that 2014 amendment tells you. Chapter 230 worked the five-year Lokpal vacancy that turned on there being no recognised Leader of the Opposition, and chapter 610 noticed that the Central Vigilance Commission Act had solved the same problem in an Explanation in 2003. Parliament amended this Act in November 2014 to solve it here and did not amend the Lokpal Act. Three statutes, the same problem, and only two of them fixed.

Section 4B: tenure, and the amendment of 2021

4B(1). The Director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office.

The non obstante clause is the whole safeguard. Ordinary service rules would let the Government move him at will. Section 4B(1) overrides them.

The two provisos, inserted by the Delhi Special Police Establishment (Amendment) Act 2021, Act 45 of 2021, which received the President's assent on 18 December 2021 and is deemed to have come into force on 14 November 2021, replacing an Ordinance of 2021 which section 3 of that Act repealed while saving everything done under it:

"Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under sub-section (1) of section 4A and for the reasons to be recorded in writing, be extended up to one year at a time:

Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment."

4B(2). The Director shall not be transferred except with the previous consent of the Committee referred to in section 4A(1).

State the 2021 change precisely, because it is easy to get wrong. The two-year minimum is untouched. What is added is a power to extend, one year at a time, in public interest, on the Committee's recommendation, for reasons recorded in writing, up to a total of five years including the initial appointment. The identical amendment was made to section 25(d) of the Central Vigilance Commission Act for the Director of Enforcement by Act 46 of 2021, chapter 680.

And state the criticism, because MU asks for it. A fixed non-extendable tenure is a protection against the appointing authority; an extendable one is a relationship with it. An officer in the fifth year of a tenure renewed annually by a Committee the Government sits on has a different set of incentives from one who knows he leaves in two years whatever he does. The safeguards of recording reasons, the public interest and the Committee's recommendation are real, and they do not remove the incentive. The honest answer states both.

Section 4BA: the Director of Prosecution

Inserted by the Lokpal and Lokayuktas Act 2013, section 58 and the Schedule, with effect from 16 January 2014.

(1) There shall be a Directorate of Prosecution headed by a Director who shall be an officer not below the rank of Joint Secretary to the Government of India, for conducting prosecution of cases under this Act.

(2) The Director of Prosecution shall function under the overall supervision and control of the Director.

(3) The Central Government shall appoint him on the recommendation of the Central Vigilance Commission.

(4) He shall, notwithstanding anything to the contrary in the rules relating to his conditions of service, continue to hold office for a period of not less than two years.

Two points. The same three devices appear again: an appointment on somebody else's recommendation, a fixed minimum tenure, and an officer of specified rank. And the recommending body here is the Central Vigilance Commission, so the Commission has a hand in the prosecution arm of an agency whose corruption investigations it superintends.

Section 4C: everybody above Superintendent of Police

4C(1), as substituted by the Lokpal and Lokayuktas Act 2013 with effect from 16 January 2014. The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers, on the recommendation of a committee consisting of:

(a) the Central Vigilance Commissioner, Chairperson; (b) the Vigilance Commissioners, Members; (c) the Secretary in charge of the Ministry of Home Affairs, Member; (d) the Secretary in charge of the Department of Personnel, Member.

Proviso. The Committee shall consult the Director before submitting its recommendation to the Central Government.

4C(2). On receipt of the recommendation, the Central Government shall pass such orders as it thinks fit to give effect to it.

Two Committees, and the difference between them is the most useful fact in this chapter.

For the Director: Prime Minister, Leader of the Opposition, Chief Justice or his nominee. Judicial member present; Government in a minority.

For everybody else above Superintendent of Police: Central Vigilance Commissioner, Vigilance Commissioners, and two Secretaries to the Government. No judicial member; the Commissioners and two serving Secretaries.

So the safeguard thins sharply below the top. The head of the agency is chosen by a body the Government does not control; the officers who actually conduct the investigations are appointed, extended and curtailed by a body of which two members are serving Secretaries of the Government. An answer that notices this has found the real weakness in the agency's insulation, and it is a better point than the familiar complaint about the Director.

And note who is not on either Committee: the Director sits on neither. He is only consulted under the proviso to section 4C(1), and section 4A(2) of the pre-2014 text required the Committee for his own successor to take the views of the outgoing Director, a requirement the substituted section 4A no longer contains.

A worked example

The office of Director falls vacant.

The Committee. Prime Minister, Leader of the Opposition in the House of the People, and the Chief Justice or a Judge of the Supreme Court nominated by him. If no Leader of the Opposition is recognised, the Leader of the single largest Opposition Party takes that place, by the substitution of 2014. If a member is absent or a seat is vacant, section 4A(2) prevents that invalidating the appointment.

The panel. Section 4A(3): officers of the Indian Police Service, on the basis of seniority, integrity and experience in the investigation of anti-corruption cases.

Tenure. Not less than two years under section 4B(1), notwithstanding his service rules.

In the second year the Government wishes to move him to another post. Section 4B(2): not without the previous consent of the Committee.

At the end of two years the Government wishes to keep him. The first proviso to section 4B(1): an extension of up to one year at a time, in public interest, on the Committee's recommendation and for reasons recorded in writing; and by the second proviso no extension after five years in total.

A Joint Director's posting. Not the Director's decision and not this Committee's. Section 4C: the Committee chaired by the Central Vigilance Commissioner, with the Vigilance Commissioners and the Secretaries of Home Affairs and Personnel, after consulting the Director, recommends; and the Central Government passes such orders as it thinks fit to give effect to the recommendation.

And the prosecutor. Section 4BA: a Director of Prosecution not below the rank of Joint Secretary, appointed by the Central Government on the recommendation of the Central Vigilance Commission, holding office for not less than two years, under the overall supervision and control of the Director.

What beginners get wrong

That the Central Vigilance Commissioner chairs the Committee for the Director. He did until 16 January 2014; since then the Committee is the Prime Minister, the Leader of the Opposition and the Chief Justice or his nominee, and the Commissioner chairs the section 4C Committee instead.

That the 2021 amendment gives the Director a five-year term. It permits extension one year at a time on the Committee's recommendation, in public interest and for recorded reasons, up to five years in total including the initial appointment.

That the Director cannot be moved for two years in any circumstances. He may be transferred with the previous consent of the Committee under section 4B(2).

That the panel may be drawn from anywhere. Section 4A(3)(b) confines it to the Indian Police Service.

That the Director appoints his own senior officers. Section 4C gives that to a different Committee; the Director is only consulted.

Quick revision

s.4A(1), substituted by the Lokpal Act w.e.f. 16 January 2014: the Committee is the Prime Minister (Chairperson), the Leader of the Opposition in the House of the People or, if none is recognised, the Leader of the single largest Opposition Party (clause (b) substituted by Act 28 of 2014 w.e.f. 29 November 2014), and the Chief Justice of India or his nominee Judge. One of three is of the Government. s.4A(2): a vacancy or absence does not invalidate. s.4A(3): a panel on seniority, integrity and experience in anti-corruption investigation, from the Indian Police Service.

s.4B(1): not less than two years, notwithstanding his service rules. Provisos inserted by Act 45 of 2021, assent 18 December 2021, deemed in force 14 November 2021: extension in public interest, on the s.4A Committee's recommendation, reasons in writing, one year at a time, maximum five years in total. s.4B(2): no transfer without the Committee's previous consent.

s.4BA, inserted w.e.f. 16 January 2014: a Directorate of Prosecution headed by a Director not below Joint Secretary, appointed on the recommendation of the Central Vigilance Commission, two-year minimum, under the overall supervision and control of the Director.

s.4C: posts of Superintendent of Police and above except Director, and extension or curtailment of their tenure, on the recommendation of a Committee of the Central Vigilance Commissioner (Chairperson), the Vigilance Commissioners, and the Secretaries of Home Affairs and of Personnel, after consulting the Director; the Central Government then passes such orders as it thinks fit.

Test yourself

1. How is the Director of the Central Bureau of Investigation appointed? By the Central Government on the recommendation of the Committee constituted by section 4A(1) of the Delhi Special Police Establishment Act 1946, consisting of the Prime Minister as Chairperson, the Leader of the Opposition recognised as such in the House of the People or, where there is no such Leader, the Leader of the single largest Opposition Party in that House, and the Chief Justice of India or a Judge of the Supreme Court nominated by him. The Committee recommends a panel of officers of the Indian Police Service chosen on the basis of seniority, integrity and experience in the investigation of anti-corruption cases, and no appointment is invalid merely by reason of a vacancy or the absence of a member.

2. What protection does the Director have in his tenure? Section 4B(1) provides that notwithstanding anything to the contrary in the rules relating to his conditions of service he shall continue to hold office for not less than two years from the date he assumes office, and section 4B(2) that he shall not be transferred except with the previous consent of the Committee under section 4A(1). Since the amendment of 2021 the period of his initial appointment may, in public interest, on the recommendation of that Committee and for reasons to be recorded in writing, be extended up to one year at a time, but no extension may be granted after the completion of five years in total including the initial appointment.

3. Criticise the amendment of 2021. A fixed and non-extendable tenure protects an officer against the authority that appointed him, because nothing he does can shorten it and nothing he does can lengthen it. An extendable tenure converts that protection into a relationship: an officer who may be given a further year, on the recommendation of a Committee on which the Prime Minister sits, has an interest in the view the Government takes of his work in a way that an officer with a fixed two-year term does not. Against that it must be said that the extension requires the Committee's recommendation and not the Government's decision alone, that it must be in public interest, that reasons must be recorded in writing, that it can be given only a year at a time, and that the total is capped at five years. The answer is that the safeguards are genuine and that they do not remove the incentive, and both halves belong in the answer.

4. Distinguish the Committee under section 4A from the Committee under section 4C. The section 4A Committee recommends the Director and consists of the Prime Minister, the Leader of the Opposition or the Leader of the single largest Opposition Party, and the Chief Justice or a Judge nominated by him, so that only one of its three members belongs to the Government and a judicial member is present. The section 4C Committee recommends appointments to posts of the level of Superintendent of Police and above other than the Director, and the extension or curtailment of their tenure, and consists of the Central Vigilance Commissioner as Chairperson, the Vigilance Commissioners, the Secretary in charge of the Ministry of Home Affairs and the Secretary in charge of the Department of Personnel, so that there is no judicial member and two serving Secretaries of the Government sit on it. The insulation of the agency is therefore strongest at its head and appreciably weaker at the level of the officers who actually conduct the investigations.

5. What is the Directorate of Prosecution? Section 4BA, inserted by the Lokpal and Lokayuktas Act 2013 with effect from 16 January 2014, provides for a Directorate of Prosecution headed by a Director of Prosecution not below the rank of Joint Secretary to the Government of India, for conducting prosecutions of cases under the Act. He functions under the overall supervision and control of the Director of the Establishment, is appointed by the Central Government on the recommendation of the Central Vigilance Commission, and holds office for not less than two years notwithstanding anything to the contrary in the rules relating to his conditions of service. Its significance is that it separates the conduct of the prosecution from the conduct of the investigation within the agency, and that it gives the Central Vigilance Commission a role in the prosecution arm of the agency whose corruption investigations it superintends under section 4(1).