Ashok Bhan, IPS (Retd)
The State Vigilance Commission (SVC) has come into existence recently in Jammu and Kashmir. The Jammu and Kashmir State Vigilance Commission Act of 2011, slightly amended in 2012 to expand the eligibility criteria and mode of appointment of the Commissioners, is similar to the Central Vigilance Commission Act in so far as functions and powers of the Commission are concerned (Sec 8 in both Acts).
The mandate of the Commission revolves round two important generic functions- exercising superintendence over the State Vigilance Organization (Delhi Special Police Establishment or CBI in the case of CVC) and making vigilance a management function by creating systems for preventing corruption in public services. The former relates to punitive vigilance under the Prevention of Corruption Act (PC Act) which has been carried out, despite many constraints, with moderate success by the SVO for many decades now. The SVO will definitely derive strength from the Commission’s clout and can increase its impact on ground. However, the SVC will be watched for the difference it can make in preventing institutionalized corruption and how much impact it can make in making vigilance a management function in each administrative unit. Punitive vigilance being individual centric and time consuming, generally fails to address the malaise itself. It will be the correct mix of the punitive and preventive vigilance that can give optimum results.
Sec 8(1) (g) of the Act empowers the Commission to exercise superintendence over the Vigilance Administration of the various Departments of the Government or corporations established in the state by or under any Central Act or the Act of State Legislature, Government companies, societies and local authorities owned or controlled by the Government. Despite absence of such a mandate with the SVO, certain systems did evolve by invoking the inherent powers of the General Administration Department (GAD). These include creating and promoting the institution of Departmental Vigilance Officers (DVOs), instituting awards, identifying corruption breeding practices and suggesting remedial measures and sending alert notes and mid-course corrections to prevent loss to the exchequer. All these functions can now fall in the domain of the SVC.
What is the advantage of having DVOs? These officers have knowledge about the functioning of their department, are available in the field for a secret or surprise check without loss of time and most importantly are familiar with each officer thus preventing unnecessary harassment to an honest public servant. In its current rudimentary form the institution of DVOs is not able to function fearlessly or fairly. They are selected by the departmental heads and dare not go against the departmental interests. Unfortunately some of them do not enjoy a good reputation. So the role of SVC must start from their selection itself. It may not be possible to work on big numbers. Let a beginning be made. The bi-annual DVOs conference provides a good platform for strengthening departmental vigilance.
One of the proposals with the Government relates to posting of senior officers as full time DVOs for 13 key corruption prone departments. Similarly, each PSU can nominate a Chief Vigilance Officer in consultation with the Commission. DVOs can act as force multipliers and eyes and ears to report and enquire into complaints provided they function under the operational control of the Commission. The Commission should be the accepting authority of their annual appraisal reports. The DVOs hand book issued by the SVO provides an outline on the role and scope of DVOs. The CVC has used this institution with positive results particularly in checking corruption in PSUs.
There are a number of corruption breeding practices which need to be curbed through strict guidelines and monitoring of their implementation by the departmental heads. The Commission will have to identify areas where generic solutions to the problems of vigilance administration can be applied across wide spectrum of government organizations. Transparency in Government purchases, e-tendering, e-payment, preventing ‘repeat orders’, strict monitoring of all subsidies, preventing manipulation of BPL population in remote and hilly areas to get subsidized rations, purchases and constructions made through SICOP and similar organizations without codal formalities, preventing back door appointments, increasing incidents of manipulating dob etc are some areas that Commission can pick up for curative steps. Information Technology must be leveraged to bring efficiency, economy and transparency to curb corruption. The online service delivery in municipal areas started recently can serve as a model for other departments to follow. The leveraging of technology in implementing Public Service Guarantee Act and computerization of revenue records will considerably reduce the chances of corruption in service delivery.
The unhealthy practice of ‘repeat orders’ results from a nexus between a dishonest trader and a chain of corrupt public servants. Flourinite concrete hardener, used in laying roads, was purchased @ Rs 44-50 per Kg by many R&B divisions in the state on repeat orders. The material cost a mere Rs 3 per Kg in Delhi. Cat’s eye stud used as dividers on road with manufacturer’s cost of Rs 100 per piece were purchased in very large numbers in both provinces for Rs 800- Rs 1,000 per piece on repeat orders. Similarly, JCBs were sold by a reputed firm at highly exorbitant rates to various agencies to make allowance for bribe to buyers. The dilemma before the SVO in such cases has always been the involvement of a large number of public servants requiring registration of many cases of similar nature. Such institutionalized corruption is best tackled through preventive vigilance.
The delayed distribution of funds by controlling officers, particularly towards the end of a financial year, is a serious corruption inducer. Funds distributed in the last week lead to sub-standard, unwanted and ‘repeat order’ purchases merely to prevent lapse of grants and pocketing of sizeable cuts. Strict monitoring of unnecessary retention of funds by the controlling officers needs to be carried out. The Heads of Departments must be made accountable to ensure early distribution of available funds and genuine purchases at the far end of the financial year.
SVO has been sending ‘alert notes’ and ‘mid-course correction’ reports to the Government. The earlier reports will provide a plethora of information on corruption breeding practices and corrective measures. Have any measures been taken by the concerned departments? SVC will be within its right to seek compliance in future.
Sec 8(1) (f) of the Act empowers the Commission to review the progress of applications pending with the competent authority for sanction for prosecution. It would entail that such requests for sanction from SVO will be routed through or will be in the knowledge of the Commission. Having been satisfied with the material against the accused, the Commission will be expected to ensure that the sanctions are obtained from the competent authority within three months, the time-limit set by the Hon’ble Supreme Court.
The experience of SVO in getting sanctions particularly from PSUs and Corporations has not been a pleasant one. Sanction was denied in a case referred to the Government against a senior officer of the Directorate of Health on the basis of recommendations of a team of three Doctors, subordinate to him, without giving SVO an opportunity to explain the case. Once the SVO and the Commission are satisfied with the standard of evidence on record there should be no ground for another enquiry by the parent department. The rules must take care of the procedure and time frame for grant of sanction for prosecution.
The relationship between the Commission and the SVO will have to be developed on healthy lines so that they do not work at cross purposes. There will be a lot to learn from the experience of the CVC and the CBI. The SVO derives powers from the Prevention of Corruption Act and must be allowed its autonomy with checks on discretionary powers as envisaged in the State Vigilance Manual. The Manual can be amended if need be to introduce best practices.
The Act provides for the Commission to exercise superintendence over the functioning of the Vigilance Organization so far it relates to investigation of cases and can give directions for the purpose of discharging the responsibility entrusted under the PC Act. However, while carrying out these functions the Commission shall not require the SVO to investigate or dispose of any case in a particular manner. The caveat ensures insulation of the investigations and enquiries from outside interference. The temptation of interfering with operational work of SVO at the behest of vested interests will spell disaster for the Commission as well as the SVO.
The question whether SVO needs prior clearance from the SVC for registering a case or submitting a final report will definitely crop up. It is the prerogative of the investigator to chose the timing in a FIR cases involving ‘trap’ and in the event of raids on premises in cases of disproportionate assets, These cases also require maintenance of secrecy about the information and the accused. Therefore, it may not be desirable to send files to and fro in such cases without jeopardize the final outcome of investigation. Findings of enquiries pertaining to loss to the exchequer could be discussed in an appropriate forum, backed by legal opinion, to arrive at a considered opinion whether a cognizable offence is made out. A system of ‘special reports’ can be created to keep the Commission informed about the progress in investigation.
Out of an average of over 5,000 complaints received annually the available staff of SVO can handle only about 500 to 750 enquiries and no more than 100 FIR cases per year. The Commission may already have started receiving complaints and must devise a strategy to deal with them. All complaints must be recorded but carefully scrutinized. There should be emphasis on quality and not quantity. While the Commission must make it clear that anonymous complaints will not be entertained, it will have to ensure confidentiality of the identity of complainants. When referring complaints for enquiries it may be useful to review the work load of each investigator. Earmarking of department specific enquiry officers or investigators is fraught with danger as it encourages developing of a nexus. Use of DVOs can be considered to conduct enquiries in certain cases.
The Commission will have to ensure that professional hands in sufficient numbers are available to the SVO. There is a case, in due course, for locating Superintendents of Police and investigators at Range Headquarters (they already have territorial jurisdiction) to increase their reach in far off and remote areas. A Vigilance Police Station will have to be created at each such location. Most of the States have such an arrangement.
A vast majority of enquiries and even many FIR cases end up in recommending departmental action against the officials. Follow up on such recommendations is the weakest area of vigilance machinery in the state. A credible mechanism need be incorporated in the rules for ensuring that departmental proceedings are held and SVO given an opportunity to depose before the Enquiry Officer. The recommendations for departmental action must be kept to the barest minimum. It is not correct to recommend departmental enquiry in every case where a criminal case is not made out. The key lies in recommending only cases based on irrefutable evidence and then ensuring that the proceedings are completed quickly. The punitive vigilance of this kind has a therapeutic effect as the results come quickly and it acts as deterrent for others.
There is a provision in the Act by virtue of which Government can refer for enquiry and investigation allegations of corruption to the Commission (Sec (1) (c)). The rules must clearly identify one nodal agency in the Government (preferably GAD) through which all such references must be routed. This can prevent tendency of palming off by various departments/PSUs to the SVC/SVO matters which can be better dealt with departmentally. For instance if there are pilferages and shortages reported in stores of a Department throughout the state, it will involve the entire machinery of SVO for carrying out just one enquiry. The SVC must resist undertaking such audits and omnibus checks which fall in the departmental domain. The touchstone for registering a case or initiating an enquiry is prima facie evidence of a cognizable offence having been committed under the PC Act.
Why does punitive vigilance under the PC Act not have the expected deterrent effect? It is because it takes a long time to complete investigation and then even longer to prosecute an accused in a court of law. Witnesses lose interest and conviction comes when the accused is well away from the scene where crime was committed. Corrupt public servants have money power as well as clout to influence and delay proceedings against them. The SVC will have to ensure that time frame set for investigations in the State Vigilance Manual is strictly adhered to. Additional courts will have to be set up to clear the backlog of cases under trial. The prosecution machinery will also have to be geared up to meet the challenge.
A few words of caution while dealing with public servants will be useful. Complaints must be carefully sifted to ensure that enquiries based on false and frivolous complaints do not lead to harassment of honest officers. The accused officer must be given opportunity at all stages of vigilance proceedings. There is a tendency to deny this leading sometimes to non-curative errors in enquiries and investigations
To conclude, the SVC has an onerous responsibility and a vast arena to work on. The teething troubles inherent in making a new institution functional are understandable and the Commission will need full backing of the Government to establish the infrastructure. Results will not come overnight. There will be resistance to make the system citizen friendly and transparent. It will be a step by step painstaking exercise to make vigilance a management function. The success will lay in the will of the Government and the skill of the Commission in breaking new ground to put in place systems that prevent corruption rather than merely take punitive measures after the crime is committed.
Ashok Bhan, IPS (Retd)