LLM Group 5 Criminal Law and Criminal Administration Criminology 2019 Question Paper with Solutions

Its first role is supervisory, over the investigating agency. Under section 8(1)(a) it exercises superintendence over the Delhi Special Police Establishment so far as that agency investigates offences under the Prevention of Corruption Act, 1988, and under section 8(1)(b) it may give directions for the discharge of the agency's responsibility, subject to a proviso that it may not require any case to be investigated or disposed of in a particular manner. That proviso is the whole difference between supervision and control, and it exists so that a supervising body cannot become an instrument for burying a case.

Its second role is inquisitorial. Under section 8(1)(c) and (d) it inquires, or causes an inquiry, into allegations that a public servant of the Union or of a Central public sector body has committed an offence under the Prevention of Corruption Act, either on a reference by the Government or on a complaint against the senior categories specified in section 8(2). Section 11 gives it the powers of a civil court for this purpose and section 12 makes its proceedings judicial proceedings.

Two roles it does not have must be stated. It does not prosecute: prosecution is for the investigating agency and the sanctioning authority, and the Commission's part is confined to reviewing the progress of pending sanction applications under section 8(1)(f). And it has no investigative machinery of its own; it depends on the Delhi Special Police Establishment and on the departmental vigilance officers whose superintendence it exercises.

Its independence rests on three provisions and on one judgment. Under section 4 its members are appointed by the President on the recommendation of a committee of the Prime Minister, the Home Minister and the Leader of the Opposition; under section 6 removal is only for proved misbehaviour or incapacity on a reference to the Supreme Court; under section 13 its expenses are charged on the Consolidated Fund of India. All three, and the statute itself, come from Vineet Narain v. Union of India, (1998) 1 SCC 226, decided on 18 December 1997, where the Supreme Court, on a petition about the Jain hawala diaries, supervised the investigation by continuing mandamus and then directed that the Commission be given statutory status and superintendence over the investigating agency, that the agency's Director have a minimum two year tenure, and that the Single Directive requiring prior approval to investigate senior officers be struck down.

Its constitution is procedural. It is set up annually under Rule 308 of the Rules of Procedure and Conduct of Business in Lok Sabha, was first constituted in 1921 under the Government of India Act, 1919, and consists of twenty two members, fifteen elected by the Lok Sabha and seven by the Rajya Sabha, by proportional representation with the single transferable vote, for one year. A Minister may not be a member. Since 1967 the Speaker has by convention appointed the Chairman from the Opposition.

Its examination is of officials and its adviser is the auditor. It calls for written replies from the Ministry on the audit paragraphs it selects and then examines the Secretary as accounting officer, with the Comptroller and Auditor General or his representative sitting with the Committee. The three questions it asks are whether the money was legally available for the purpose to which it was applied, whether the expenditure conformed to the authority governing it, and whether every re appropriation was within the rules.

What the Commission's own numbers show

The annual report the Commission submits under section 14 is the most useful published measure of Indian vigilance administration, and two features of it recur. The Commission disposes of tens of thousands of complaints in a year, of which only a small proportion result in a recommendation of major penalty, and the great bulk are either filed for want of verifiable particulars or sent to the organisation concerned for such action as it thinks fit.

The second feature is the record of non acceptance. Section 14(2) requires the report to be laid before each House with a memorandum explaining any recommendation of the Commission that has not been accepted, and every year a number of cases appear in that memorandum in which the disciplinary authority imposed a lesser penalty than the Commission advised, or none. That is the arithmetic of an advisory body, and it should be quoted rather than asserted: the Commission's authority is proportionate to the willingness of the department to accept advice, and the only sanction for refusal is a paragraph in a report.

The comparison suggests a reform that has been proposed repeatedly and never adopted: that the Commission's advice, and the department's reasons for departing from it, be published contemporaneously rather than aggregated in an annual report. Publicity is what makes the Committee effective, and it is the one thing the Commission does not have.

Conclusion. The two bodies are the external and the internal answer to the same problem. The Committee sits outside the executive, works after the event, examines in public and has publicity as its only weapon; the Commission sits inside, works before, during and after, examines in confidence, and has advice as its only output. The Commission is the stronger on paper, with a protected appointment, superintendence over an investigating agency and a place in the Lokpal's referral scheme; Common Cause shows how far that strength goes, which is far enough to quash an overnight order and not far enough to prevent a lawful transfer a week later.