4. Institutional framework and corruption

Transcription

1 4. Institutional framework and corruption Mere enacting Anti-Corruption Laws can not curb corruption. Perfectly framed strong machinery is essentially needed to enforce and implement those laws effectively. Hence, certain Anti-Corruption Agencies namely Central Vigilance Commission (CVC), Central Bureau of Investigation (CBI), Anti Corruption Bureau (ACB), Comptroller and Auditor General (CAG), The Lokpal, Lokyukta and Upalokayukta are established to enforce the Anti- Corruption Laws in India. Critically examined the evaluation of Anti- Corruption Agencies and their functioning in this chapter. 4.1 Anti-Corruptions Agencies (ACA) Throughout history, corruption has been recognized as a decaying force to society and States have taken counter measures against such deceitful practices. Charges and punishments for corruption are studied in the Egyptian,

2 Institutional Framework And Corruption -109 Babylonian, Hebrew, Chinese, Green, and Roman civilization 1 and even the writers of the Bible felt it necessary to condemn corruption 2. Corruption acquires different forms in every country. However, there is some consensus among academics and policy makers that corrupt activities need to be attacked on several fronts, taking a systematic approach that prevents corruption from occurring in the first place, by making it a high risk and low return undertaking 3. Anti-corruption strategies are proposed at the international, regional, national and local levels. In India Anti corruption institutions are established under National and State level. It is important to point out that many of these mechanisms are supported by international agencies such as the World Bank, OECD, UNDP, Transparency International, and by regional development agencies in Europe, Asia, Latin America and Africa. In many developing countries, the need to find alternative mechanisms to the conventional law enforcement agencies that may be over-extended in their capacity or may themselves be part of a corrupt system. It has resulted in 1. Gill.S.S, Pathology of Corruption xiii, (The Roman Empire provides some of the most startling examples of corruption. A senator guilty of embezzlement was fined the amount of money he had gained from his position and governors extracted money from this provinces and used their loot to pay off the judges they would stand in front of in the near future.) Exodus 23:8 ( You shall not take a bribe, for a bribe blinds the clear-sighted and subverts the cause of the just. ). 3. Lanseth P, Stapenhurst R. and Pope J. The role of National Integrity system in fighting Corruption EDI Working Papers, Washington D.C: World Bank.2000.

3 Institutional Framework And Corruption -110 the creation of anti-corruption agencies as specialized bodies to spearhead anti-corruption strategies. These agencies have been created as the enforcement bodies of anti-corruption legislation, with specific powers to detect and deter corruption. The particular scope of action of these agencies varies from country to country, but in general, these agencies have the authority to receive, investigate and detect corrupt activity, and some have prosecutorial powers. Additionally, anti-corruption agencies are usually responsible for creating awareness campaigns, and mobilizing and educating citizens about public sector ethics and corruption. India is the largest democracy in the world and corruption as become the way of life in India. 4 It is infecting and is spreading like cancer and devastatingly widening the economic disparities. Hon ble Sri K.R. Narayanan former President of India has characterized that corruption as one of the greatest challenges now confronting country 5. A large portion of or resources is siphoned off though corrupt practices in the form of pilferages, leakages, etc., and the common man is loosing faith in our political institutions. Some of these alienated from the State are resorting to violent means. It is alarming to note 4. Encyclopedia of the Developing World 1118 (Thomas M. Leonard ed., 2006). 5. Narayanan. K.R. Former President of India, Next an India for All, Tolerant and Uncorrupt, Editorial, International Herald Tribune, 13 August, 1997.

4 Institutional Framework And Corruption -111 that a large section of youth is in the fore front of secessionist, radical and other violent movements. The Administrative Vigilance Division of the Department of Personnel and Training is the Nodal Agency for dealing with Vigilance and anticorruption. Its tasks, inter alia, are to oversee and provide necessary directions to the Government s programme of maintenance of discipline and eradication of corruption from the public services. In pursuance of the recommendations made by the Committee on Prevention of Corruption, popularly known as the Santhanam Committee, the Central Vigilance Commission was set up by the Government of India by a Resolution dated At the federal level, key institutions are include the Central Vigilance Commission (CVC), The Central Bureau of Investigation (CBI), The Office of the Comptroller and Auditor General (C&AG) and the State Level Anti-Corruption Bureaus (ACB) of each State are created to combating the corruption in India. 4.2 Central Vigilance Commission (CVC): An Autonomous Anti- Corruption Body The Government of India took action and formed the Santhanam Committee, headed by Sri K. Santhanam, to review existing corruption laws

5 Institutional Framework And Corruption -112 and bodies 6. The Santhanam Committee found that the DSPE was not adequately attacking corruption and suggested the creation of an independent high level watchdog body. The Government took the advice of the Santhanam Committee, and in 1964, the CVC was born. The CVC became answerable to the Nation as the force that would halt official corruption 7. While the Penal Code outlines substantive corruption offenses, the CVC and CBI are responsible for enforcing the law. These institutions originated during World War II, when the presence of shortages, rationings, and large military contracts opened floodgates of corruption and it became a pervasive phenomenon of daily life. Even in the midst of a global war, the government found it necessary to create the Special Police Establishment (SPE) in 1941 through an executive order. Initially, during the war, the SPE dealt with cases of bribery and corruption, mostly within the War and Supply Department of the government. In 1946, Parliament passed the Delhi Special Police Establishment Act (DSPE Act), which replaced the SPE with the Delhi Special Police Establishment (DSPE), gave it legal sanction, and switched its superintendence from the War and Supply Department, to the Central Government. 6. Pradeep Siddharth, editor s note to anti-corruption agencies of the Government of India: their mandate and charter of duties xviii (Pradeep Siddharth ed., 2000). 7. Government of India res. no. 24/7/64-avd, Feb. 11, 1964 (establishing the Central Vigilance Commission); Anjali Nirmal, Role and Functioning of Central Police Organizations 43 (1992).

6 Institutional Framework And Corruption -113 To be sure, the CVC was the apex anti-corruption body because it was the only body dedicated purely to the fight against corruption. Most importantly, the Santhanam Committee wanted the CVC to be the final authority for according prosecution sanction[s] in respect of Government Officials Statutory Status of the Commission Consequent upon the directions given by the Supreme Court in the Writ Petition filed in Public Interest by Shri Vineet Narain and others in Hawala case, the Central Vigilance Commission was given statutory status, through an Ordinance dated , which was amended on The Ordinance, inter-alia, conferred the powers upon the Central Vigilance Commission to exercise superintendence over the functioning of Delhi Special Police Establishment and review the progress of investigations being conducted by them in so far as it pertain to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, Subsequently, in order to replace the Ordinance, the Government introduced the Central Vigilance Commission Bill, 1998 in Lok Sabha on 7th December The Central Vigilance Commission Ordinance was also re-promulgated on The CVC Bill was passed by the Lok Sabha on and

7 Institutional Framework And Corruption -114 was pending before the Rajya Sabha. Meanwhile, the CVC Ordinance, 1999, was to expire on Therefore, the Central Government resolved, on , that the Central Vigilance Commission constituted under the Ordinance would continue to discharge its duties and exercise its powers under the Resolution which shall come into operation immediately after the expiry of the Ordinance. The Government, once again, introduced the Central Vigilance Commission Bill, 1999 [Bill No.137 of 1999] in the Lok Sabha on 20th December 1999, which has since been referred to a Joint Committee of both Houses of Parliament. Thus, the Commission continues to discharge its functions under the Government's Resolution dated with effect from that date Powers and Functions of CVC Clause 24 of the Central Vigilance Commission Ordinance, 1998, had provided that the Central Vigilance Commission, set up by the Resolution dated of the Government of India, shall continue to discharge the functions assigned to it insofar as its functions are not inconsistent with the provisions of the Ordinance. Therefore, the Commission continues to perform the functions assigned to it in terms of Government of India's Resolution dated , which are as under:-

8 Institutional Framework And Corruption -115 (a) to undertake an inquiry or cause an inquiry or investigation to be made into any transaction in which a public servant working in any organisation, to which the executive control of the Government of India extends, is suspected or alleged to have acted for an improper purpose or in a corrupt manner; (b) tender independent and impartial advice to the disciplinary and other authorities in disciplinary cases having vigilance angle at different stages of investigation, inquiry, appeal, review, etc.; (c) conduct oral inquiries through its officers [Commissioners for Departmental Inquiries] in important disciplinary proceedings against the said public servants; (d) exercise a general check and supervision over vigilance and anticorruption work in Ministries or Departments of the Government of India and other organisations to which the executive control of the Union extends; (e) initiate at such intervals, as it considers suitable, review of procedures and practices of administration insofar as they relate to maintenance of integrity in administration;

9 Institutional Framework And Corruption -116 (f) scrutinize and approve proposals for appointment of Chief Vigilance Officers in various organisations and assess their work; (g) conduct, through its organization of Chief Technical Examiners, independent technical examination mainly from vigilance angle, of construction and other related works undertaken by various Central Government organizations; and (h) organise training courses for the Chief Vigilance Officers and other vigilance functionaries in Central Government organizations Additional Powers under the Central Vigilance Commission Ordinance In addition to the above functions, the Central Vigilance Commission was empowered, under the CVC's Ordinance (a) exercise superintendence over the functioning of the Delhi Special Police Establishment (DSPE) insofar it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988.

10 Institutional Framework And Corruption -117 (b) Review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the PC Act, (c) exercise the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, while inquiring, or causing an inquiry or investigation to be made, into any complaint against a public servant, and in particular in respect of the following matters: (i) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (ii) requiring the discovery and production of any document; (iii) receiving evidence on affidavits; (iv) requisitioning any public record or copy thereof from any court or office; (v) issuing commissions for the examination of witnesses or documents; and (vi) any other matter which may be prescribed. (d) head the committees to make recommendations for the appointments to the posts of the Director, CBI and the Director of Enforcement.

11 4.2.4 Central Vigilance Commission s Jurisdiction Institutional Framework And Corruption -118 Though the advisory jurisdiction of the Commission extends to all organisations to which the executive control of the Union extends, however, for practical reasons, the Commission presently advises only on vigilance cases pertaining to the following categories of employees: (a) (b) Gazetted Central Government officials; Two levels below the Board level appointees in the public sector undertakings of the Central Government; (c) (d) Officers of the rank of Scale- III and above in the public sector banks; Officers of the rank of Assistant Manager and above in the Insurance Sector (covered by LIC and GIC); and (e) Officers in autonomous bodies/local authorities or societies comparable in status to that of a Gazetted Central Government officer. Nonetheless, the Commission retains its residuary powers to call for any individual case in respect of employees other than those who are within its normal jurisdiction. As per the CVC Ordinance 1998, the Commission can undertake an inquiry or cause an inquiry or investigation to be made into any complaint against any official belonging to the following categories of officials wherein it

12 Institutional Framework And Corruption -119 is alleged that he has committed an offence under the Prevention of Corruption Act, 1988: (a) (b) Group "A" officers of the Central Government Such level of officers of the corporations established by or under any Central Act, 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 in this behalf. Provided that till such time a notification is issued under this clause, all the officers of the said corporations, companies, societies and local authorities shall be the persons referred above Restraints on the Commission s Jurisdiction Under the authority of Government of India's Resolution dated , the Commission was empowered to undertake an inquiry into any transaction in which a public servant was suspected or alleged to have acted for an improper purpose or in a corrupt manner irrespective of his status. It was only through subsequent administrative instructions that the Commission's jurisdiction was restricted to certain categories of employees for the purposes of its advice. Even in that situation, the Commission could call for a report on any complaint of corruption, misconduct, lack of integrity, misdemeanor, etc.

13 Institutional Framework And Corruption -120 against any public servant irrespective of his status. While the intention of the Supreme Court's judgement in Vineet Narain s case to accord statutory status to CVC appears to strengthen the organisation, the provision in the CVC Bill, restricting its jurisdiction to inquire into or cause an inquiry or investigation to be made into the alleged commission of offences under the PC Act and Code of Criminal Procedure only and that too against certain categories of employees, in fact, tantamount to weakening its authority. Further, the Commission has been given powers to exercise superintendence over the vigilance administration of various Ministries of Central Government, Public Sector Unions, societies, autonomous organisation etc. The restriction upon the jurisdiction of the Commission to call for suo moto reports on the complaints will only hamper its functioning. The Government of India should, therefore, reconsider their proposal and authorise the Commission to call for suo moto reports on complaints irrespective of the status of the official named therein. a) It was envisaged in the Government of India's Resolution dated that the relevant rules under the All India Services Act would be amended in consultation with the State Governments in order to bring the Members of those Services under the purview of the

14 Institutional Framework And Corruption -121 Commission. However, even after 35 years of the Commission's existence, the All India Services Officers, particularly the Members of the IAS, IPS and Indian Forest Service, do not fall within the Commission's jurisdiction if the alleged irregularities committed by them are connected with the affairs of the State Governments. Recent experience has shown that corruption at the State level flourishes due to the collusion between the Members of All India Services and the powers that be at the State level. If these officers are brought within the purview of the CVC, there is likely to be some psychological check on corruption. The Commission has, therefore, suggested to the Government of India to make necessary amendments to the CVC Bill before it is passed. b) As stated above, the Commission now exists under the Government of India's Resolution dated The said Resolution, apart from not having the statutory backing, also limits the operation of the CVC in as much as it does not mention about the powers of the Commission to exercise superintendence over the functions of the CBI, appointments of the Central Vigilance Officers (CVO) being made in consultation with the Commission and writing of their ACRs. The Commission has

15 Institutional Framework And Corruption -122 pointed out these deficiencies to Government of India for appropriate action Multi Member Commission The Commission was accorded statutory status through an Ordinance dated , amended vide Notification No.47 dated The Ordinance envisaged the Commission to be a multi-member commission, consisting of the Central Vigilance Commissioner (Chairman) and not more than four Vigilance Commissioners as its members. The appointments of the CVC and the Vigilance Commissioner (VC) were to be made by the President by warrant under his hand and seal on the recommendations of a committee consisting of (i) The Prime Minister, (ii) The Minister of Home Affairs and (iii) Leader of the Opposition in the House of People. The Government could make appointments against the posts of the Central Vigilance Commissioner and one Vigilance Commissioner through the above process, when the Ordinance expired. Thus, the Central Vigilance Commission presently consists of two Members, viz. the Central Vigilance Commissioner and the Vigilance Commissioner.

16 Institutional Framework And Corruption Commission s Staff and Technical Wing The Central Vigilance Commission is assisted by a Secretary, who is of the rank of Additional Secretary to the Government of India, two Additional Secretaries, who are of the rank of Joint Secretary to the Government of India, 10 Officers of the rank of Directors/Deputy Secretaries, an Officer on Special Duty, four Under Secretaries and other staff. In addition, there are fourteen officers, designated as Commissioners for Departmental Inquiries (CDIs), who are nominated to conduct departmental inquiries relating to major penalty proceedings on behalf of the disciplinary authorities in serious and important disciplinary cases. a) There is also a Technical Wing attached to the Commission with two Chief Technical Examiners of the rank of Chief Engineers, who are assisted by eight Technical Examiners of the rank of Executive Engineers, six Assistant Technical Examiners of the rank of Assistant Engineers and other subordinate staff Chief Technical Examiners' Wing (CTE) The Chief Technical Examiner's Organisation constitutes the technical wing of the Central Vigilance Commission (India) and is managed by two

17 Institutional Framework And Corruption -124 Engineers of the rank of Chief Engineers (designated as Chief Technical Examiners) with supporting engineering staff. The main functions assigned to this organisation are: Technical audit of construction works of Governmental organisations from a vigilance angle; Investigation of specific cases of complaints relating to construction works; Extension of assistance to CBI in their investigations involving technical matters and for evaluation of properties in Delhi; and Tendering of advice/assistance to the Commission and Chief Vigilance Officers in vigilance cases involving technical matters Commission s Strength The group-wise sanctioned staff and the number of officers in position as on is given below: Table No: 1 Group CVC Strength Group Group Group Total "A" "B" "C" "D" Sanctioned In position

18 Institutional Framework And Corruption Central Vigilance Commission Act, 2003 The Government impedes the countries main corruption fighting and investigating bodies by denying them autonomy. The CVC, currently the highest anti-corruption body in India acquires it legal authority from the Central Vigilance Commission Act The CVC Act provides limited vigilance powers of commission and raises speculation about its ability to fight subversive influences. In addition to limiting the authority of the CVC, the CVC Act also curbs the power of the investigatory arm of the CVC, the CBI by reinstating a requirement of prior sanctions for investigating high rank officials 8. The restoration of the prior sanction requirement, know as the single directive, contradicts the 1997 Indian Supreme Court ruling in Vineet Narain V. Union of India, which struck down the single directive 9. In the Vineet Narain case, the Supreme Court emphasized the same anti-corruption initiatives as United Nations Convention Against Corruption (UNCAC) Article 6 and 36 namely functioning of anti-corruption bodies free from undue influence. Indian Legislature passed the Central Vigilance Commission Act 2003, it not only circumvented the Supreme Court s judgment but also the 8. Central Vigilance Commission Act, 45 of (6A) (1). 9. Vineet Narian Vs. Union of India (1998) SCC

19 Institutional Framework And Corruption -126 spirit of Article 6 s requirement of an independent anti-corruption body and Article 36 s requirement of independent detection and investigation agencies. Thus, while India does have laws criminalizing numerous forms of corruption, the Government to limit the CVC and cripple the CBI illustrates that the effectiveness of these laws in for from satisfactory 10. Therefore, to analyse the effectiveness of existing anti-corruption institutions (Laws and Machinery) this meant to control corruption in public life. Anti-Corruption Institutions and laws evolved in the country are ad hoc and partial in nature. There are punitive rather than preventive. Besides, there is a lack of strong political and administrative will to tackle this menace effectively Central Bureau of Investigation (CBI) India Background of CBI: During the World War II, the Government of India issued an ordinance in 1943 constituting a Special Police Force for the investigating of certain offences committed in connection with the affairs of the Central Government. The said ordinance lapsed with the end of the war. In the year 1946, the Parliament enacted the Delhi Special Police Establishment Act, The Act 10. Raj Kumar C, Corruption and Human Rights: Promoting transparency in Governance and the Fundamental Right to corruption free service India, Asian Journal 31, 2003, pp Sangeeetha S.N. Institutional Arrangement for Controlling Corruption in Public Life: Karnataka experience Indian Journal of Public Administration XLI (1) January March 2000, pp

20 Institutional Framework And Corruption -127 was intended to create a Special Police Establishment, a specialized agency, for making enquiries and investigations into certain specified offences. Section 5 of the Act provides that the Central Government can, with the concurrence of the State Governments, extend the jurisdiction of the SPE to all States. Special Police Act is envisaged as supplementary to the State police forces, enjoying great powers of investigation in cases notified under section 5 in respect of offences notified under section 3 of the DSPED Act, 1946 which can of course be exercised in a State only with the consent of the Government of that State. The Central Bureau of Investigation in its present form came into being in 1963 through the resolution adopted by the Government of India pursuant to the recommendations of the Committee on Prevention of Corruption (Santhanam Committee). The Resolution also specified the types of cases which would be investigated by the CBI, which of course continues to derive its legal powers for investigation from the aforesaid Act 12. The Central Bureau of Investigation (CBI) was the successor police organization to the Delhi Special Police Establishment (DSPE). The DSPE Act granted the DSPE the jurisdiction to work alongside State Governments and to investigate categories of crimes allegedly committed by Central Government 12. Law Commission of India, One hundred sixty first report on Central Vigilance Commission and Allied Bodies, 1998.

21 Institutional Framework And Corruption -128 employees or offenses connected to the departments of the government. As India s economy continued to grow, there was concern that the number of investigations needed would overwhelm the DSPE. In response, the government passed Resolution No. 4/31/61-T in 1963, creating the CBI and merging it with the DSPE 13. The legal powers of investigation of CBI are derived from the DSPE Act This Act confers concurrent and coextensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (DSPE) with Police Officers of the Union Territories. The Central Government may extend to any area, besides Union Territories, the powers and jurisdiction of members of the CBI for investigation subject to the consent of the Government of the concerned State. While exercising such powers, members of the CBI of or above the rank of Sub Inspector shall be deemed to be officer s in charge of Police Stations of respective jurisdictions. The CBI can investigate only such of the offences as are notified by the Central Government under the Delhi Special Police Establishment Act, The CBI became responsible for the investigation of crimes then handled by the D.S.P.E., for collection of intelligence relating to certain types 13. CBI manual, 182, Para. 1.6 ( in fact, with the establishment of CBI on 1 st April, 1963, the Delhi Special Police Establishment was made one of its divisions, viz. investigation and Anti- Corruption division. ).

22 Institutional Framework And Corruption -129 of crime, participation in the work connected with Interpol, maintenance of crime statistics, study of specialized crimes and coordination of laws relating to crime. The CBI retains the investigative powers of the DSPE 14. Initially, the CBI only had the power to investigate offenses in the Union Territories 15. The CBI s jurisdiction extends to other States who agreed to this augmentation of control. In comparison to state and local police, the CBI is arguably superior. As a first step in that direction the Government of India have decided to set up with effect from 1 st April, 1963 a Central Bureau of Investigation 16 at Delhi. Over the years the character of the CBI has undergone a significant change. Its role is no longer restricted to anti-corruption activities. It is being increasingly called upon to investigate the conventional crimes and banking and other economic offences. Of course, the main thrust of its functions continues to be on the detection and investigation of offences of bribery and corruption committed by public servants under the control of the Central Government and its undertakings. 14. CBI manual, 182, Para the CBI s manual states: [this] act confers concurrent and co-extensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (CBI) with Police Officers of the Union Territories in relation to the investigation of offences notified by the Central Government under Section 3 of the act and arrest of persons concerned in such offences. 15 Delhi Special Police Establishment Act, No. 25 of 1946, 2 (India). 16 Rama Krishna P.V A treatise on Anti-Corruption Laws in India Hyderabad, S.Gogia & Company,2009.p.1907

23 Institutional Framework And Corruption MOTTO OF CBI: Industry, Impartiality and Integrity MISSION OF CBI: To uphold the Constitution of India and law of the land through in-depth investigation and successful prosecution of offences; to provide leadership and direction to police forces and to act as the Nodal Agency for enhancing inter-state and international cooperation in law enforcement. VISION OF CBI: Based on motto, mission and the need to develop professionalism, transparency, adaptability to change and use of science and technology in our working, the CBI will focus on. 1. Combating corruption in public life, curb economic and violent crimes through meticulous investigation and prosecution. 2. Evolve effective systems and procedures for successful investigation and prosecution of cases in various law courts. 3. Help fight cyber and high technology crime.

24 Institutional Framework And Corruption Create a healthy work environment that encourages team-building, free communication and mutual trust. 5. Support state police organizations and law enforcement agencies in national and international cooperation particularly relating to enquiries and investigation of cases. 6. Play a lead role in the war against national and transnational organized crime. 7. Uphold Human Rights, protect the environment, arts, antiques and heritage of our civilization. 8. Develop a scientific temper, humanism and the spirit of inquiry and reform. 9. Strive for excellence and professionalism in all spheres of functioning so that the organization rises to high levels of endeavor and achievement Roles and Functions of CBI The CBI is the premier investigating police agency in India. It is an elite force playing a major role in preservation of values in public life and in ensuring the health of the national economy. It is also the nodal police agency in India which coordinates investigation on behalf of Interpol Member

25 Institutional Framework And Corruption -132 countries. The services of its investigating officers are sough for all major investigations in the country. It was constituted under the following six heads: i) Investigation and Anti-Corruption (Delhi Special Police Establishment). ii) iii) iv) Technical Division Crime Records and Statistics Division Research Division v) Legal and General Division vi) Administrative Division Investigation and Anti-Corruption Division (Delhi Special Police Establishment) 1) Cases in which public servants under the control of the Central Government are involved either by themselves or along with Stat Government servants and or other persons. 2) Cases in which the interests of the Central Government or of any public sector project or undertaking, or any statutory corporation or body set up and financed by the Government of India are involved. 3) Cases relating to breaches of Central Laws with the enforcement of which the Government of India is particularly concerned, e.g.

26 Institutional Framework And Corruption -133 a) Breaches of Import and Expert Control orders. b) Serious breaches of Foreign Exchange Regulation Act. c) Pass port frauds. d) Cases under the Official Secrets Act pertaining to the affairs of the Central Government. e) Cases of certain specified categories under the Defense of India Act or Rules with which the Central Government is particularly concerned. 4) Serious cases of cheating or fraud relating to the Railways, or Posts and Telegraphs Department, particularly those involving professional criminals operating in several States. 5) Crime on the High Seas 6) Crime on the Airlines 7) Important and serious cases in Union Territories particularly those by professional criminals. 8) Serious cases of fraud, cheating and embezzlement relating to Public Joint Stock Companies. 9) Other cases of serious nature, when committed by organized gangs or professional criminals, or cases having ramifications in several States including Union Territories, serious cases of spurious drugs,

27 Institutional Framework And Corruption -134 important cases of kidnapping of children by professional inter-state gangs, etc. These cases will be taken up only at the request of or with the concurrence of the State Government /Union Territories Administrations concerned. 10)Collection of intelligence about corruption in the public service and projects and undertakings in the public sector. 11)Prosecution of cases investigated by this Division. 12)Presentation of cases before Enquiry officers in which departmental proceedings are instituted on the recommendation of this Division Functions of the Technical Division Following are the functions of the Technical Division 1) Technical assistance in investigation of cases involving accounts. 2) Specialised assistance incases involving Railway and Postal accounts. 3) Assistance in cases involving assessment of Income-Tax, Excise Duty etc. 4) Examination of accounts and assets etc., in cases relating to allegations of disproportionate assets. 5) Examination of cases investigated by the Bureau which have an Income-Tax aspect, and communication of information with a view to enabling the Income-Tax Department to recover the evaded tax.

28 Institutional Framework And Corruption Crime Records and Statistics Division 1) Maintenance of All-India Statistics of crime. 2) Study of All-India trends in thefts and losses, and recoveries of firearms and ammunition, and note forgery and counterfeit coining. 3) Collection and dissemination of information about important Inter-State criminals. 4) Preparation and circulation of reports and reviews relating to crime in India Functions of Research Division 1) Analysis and study of specialized crimes and of problems of a general nature affecting the Police, e.g. i) trends and causes of serious crimes in different areas. ii) Preventive measures, their effectiveness and relationship with crime. iii) Improvement in methods of investigation, utility and results of introducing scientific aids and equipment. iv) Inadequacy of laws; co-ordination of laws relating to crime in various States.

29 Institutional Framework And Corruption -136 v) Criminal gangs operating in more than one State wandering gangs-ex-criminal Tribes-habitual offenders. vi) vii) viii) ix) Crime amongst the Tribal people Inter-state note-forgery and counterfeiting. Social factors in crime. Industrialisation and crime. x) Juvenile delinquency. xi) Kidnapping of women and children. 2) Participation in the work of Central Forensic Science Advisory committee and the Central Medico Legal Advisory Committee Functions of Legal and General Division Legal Division 1) Legal advice in cases investigated by the investigation and Anti- Corruption Division. 2) Conducting prosecution in important cases. 3) Review of judicial decisions relating to criminal law and procedure for publication in the Central Bureau of Investigation Gazette. 4) Compilation and circulation of Law Digest.

30 5) Inadequacy of and amendments to laws. Institutional Framework And Corruption ) Co-ordination of laws relating to crime in various States General Division 1) Matters relating to organization, policy and procedure. 2) Inter-State conference relating to crime and anti-corruption work. 3) Appreciation reports regarding modes of corruption in various Government Departments and Public Undertakings. 4) Correspondence with Ministers and States on general questions relating to Policy, procedure, etc. 5) Training Courses in Anti-corruption work. 6) C.B.I. Gazette. 7) Photographic section Administration Division All establishment and accounts matters. CBI investigations have a major impact on the political and economic life of the Nation. The following broad categories of criminal cases are handled by the CBI:

31 Institutional Framework And Corruption -138 i. Anti Corruption Division: Cases of corruption and fraud committed by public servants of all Central Govt. Departments, Central Public Sector Undertakings and Central Financial Institutions. ii. Economic Crimes Division: Deals with cases including bank frauds, financial frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc. iii. Special Crimes Division: Deals with cases such as cases of terrorism, bomb blasts, sensational homicides, kidnapping for ransom and crimes committed by the mafia/the underworld. Table 2 Year CBI Convictions Conviction Rate % % Source: CBI manual 2009 The Central Bureau of Investigation is the Principal investigative agency of the Union Government in anti-corruption matters. It is observed that the conviction rate of CBI is nominal because it is the highest anti corruption

32 Institutional Framework And Corruption -139 agency to prevent corruption in India. Even though this institutions conviction rate is not upto the mark. It shows that so many lacunas in investigation division and prosecution division. The prosecution has failed to prove the guilty of the accused person. This makes one doubt the sincerity of CBI. This data clearly suggests that the CBI has to be strengthened more legally and more powers should be entrusted so that it could function effectively and afford for the benefit of many and for the nation s development. 4.4 Anti Corruption Bureau of Andhra Pradesh India is a Union of States as per Constitution of India. Crime is a State subject under the Constitution. Investigation and prosecution of crimes, including corruption cases, which happen within the territorial jurisdiction of States, therefore remain the basic responsibility of State Agencies. ACB is responsible for the prevention, detection and investigation of corruption crime only and are not engaged in conducting other police duties such as handling conventional crimes and law and order. Anti Corruption Bureau was established on January 2, 1961 and functions directly under the administrative control of the General

33 Institutional Framework And Corruption -140 Administration Department of Andhra Pradesh Government. The Director General, who is a senior IPS officer of the rank of DGP / Addl.DGP, heads the Bureau. A Director, who is also a senior IPS officer of the rank of IGP, assists him. They are assisted by Additional Directors (IPS officers of the rank of DIG) and Joint Directors (IPS officers of the rank of SP). The Bureau is divided into 15 Ranges. Each Range is headed by a Deputy Superintendent of Police and assisted by 3 to 5 Inspectors. Each Range encompasses one to three Districts. The Bureau is having Technical Officers like Engineers, Chartered Accountant, etc. It is also having legal officers to tender advice on legal matters to conduct prosecution in Courts and Tribunal for Disciplinary Proceedings Mission of ACB To promote ethical conduct in Public Services, collect intelligence about corruption in various Departments, examine processes and suggest modifications to Prevent Corruption effectively enforce.

34 Institutional Framework And Corruption Objective of Anti-Corruption Bureau : To promote honest and transparent conduct on the part of Government and Public Servants through effective enforcements of Anti-Corruption Laws in order to make legitimate services available to the citizen i. Services of ACB: a) Registration and investigation of complaints of corruption b) Enquire and recommend actions on allegations of corruption against Government and public servants c) Advises and guides on internal vigilance in Government departments d) Advises public on course of action on matters of corruption ii. Table - 3 Delivery Standards: Enquiries Investigation of Trap Cases Investigation of Dis.Assets Advises on matters of Corruption 4 months 6 months 12 months On call Functions of Anti Corruption Bureau: The Anti-Corruption Bureau is a specialized agency tackling the problem of corruption in various departments of the Government against

35 Institutional Framework And Corruption -142 Public Servants and also Private Persons whoever abets the offences under the Prevention of Corruption Act, The Bureau registers cases under the provisions of this Act. Besides this, the Bureau conducts enquiries basing on the information/petitions received from various agencies like Government, Vigilance Commission, and Lokayukta etc. and also on the information/petitions received by the Bureau from the public containing specific and verifiable allegations of corruption against Public Servants. The Bureau basically enforces the provisions of the Prevention of Corruption Act, The Bureau has suo-moto powers to collect information, conduct enquiries and register cases on Public Servants. The Bureau investigates Disproportionate Assets Cases of Criminal misconduct and misappropriation. Apart from that the Bureau also conducts enquiries in the form of Regular Enquiries, Discreet Enquiries and also conducts Surprise Checks in areas of rampant corruption. After completion of investigation and enquiries, a final report is sent to Government through the Vigilance Commissioner who tenders his advice to the Government. Depending on the merits of the case, the further course of action may be either to file charges or to drop action. If the evidence is not

36 Institutional Framework And Corruption -143 enough for launching prosecution in a case, the case is referred to the Tribunal for Disciplinary Proceedings, Commissioner of Enquiries or to the Department concerned for taking further action by dealing with the Public Servant on charges of misconduct, possessing disproportionate Assets and violation A.P.C.S. (Conduct) Rules, 1964.

37 S. NO. Institutional Framework And Corruption -144 ANTI-CORRUPTION BUREAU OF ANDHRA PRADESH PERFORMANCE LEVEL OF A.C.B., IN 2006, 2007, 2008 & 2009 SUBJECT To To To To Trap Cases Assets Cases Criminal Misconduct Cases Surprise Checks Assets unearthed (in lakhs) No. of Enquiries & Investigation Completed 7 No. of Charges Sheets filed in ACB Courts Convictions % of Convictions Dismissals from Service Punishments by disciplinary Authorities 12 Number of Gazetted Officers Booked 13 Number of Non-Gazetted Officers Booked Number of Corporate Employees / Private Persons Booked Sources: dt:

38 Institutional Framework And Corruption -145 Performance Level of ACB: The data shown in the table shows that there is no improvement in the number of cases trapped by ACB. The number of cases recorded to be trapped by ACB in 2009 were only 238, which were more or less equal with the cases trapped in the previous years. Though the number of enquiries and investigations seemed to be reduced in 2007 and 2008, they were increased to 418 by Further there are 418 cases of enquiries and investigation charge sheets filed against only 193 and 90 were convicted. Regarding the punishment, it seems there is no sense punishment to the convicted in many cases. The records show only a few (52) were convicted and against another few (90) only disciplinary action was taken. This shows that the corrupted who were trapped and against whom charge sheets were filed could easily escape from the law. Moreover, as shown in the table the number of cases booked are many but very few are coming to be trailed before the court law. This makes one doubt the sincerity of ACB. This data clearly suggests that the ACB has to be strengthened more legally and more powers should be entrusted so that it could function effectively and afford for the benefit of many and for the development of Nation.

39 Institutional Framework And Corruption -146 For prosecution of a Public Servant the authority competent to remove him has to accord sanction for prosecution. Conviction in a court leads to dismissal of the convicted Public Servant, whereas in departmental action the Public Servant is awarded a major punishment or a minor punishment depending on the gravity of the delinquency under the A.P.C.S. (CCA) Rules, Major punishment involves dismissal, removal, reduction in Rank, withholding of increments with cumulative effect, cut or stoppage of pension for retired employees, etc. Minor punishments are withholding of increments without cumulative effect, censure, recorded warning, etc Public Opinion on Corruption and Performance of Anti-Corruption Bureau of Andhra Pradesh, India. Corruption is a global phenomenon capable of paralyzing a country s development and diverting its precious resources from the public needs of the entire Nation. Indeed, it generates the Black Money that purchases the decision-making power of public officials. The result can be a criminalization of the entire political and bureaucratic system that further restricts the Governments ability to enact will international and much needed reform. An event of corruption falls under three main categories namely Bribery, Nepotism (Favouring the known persons on groups), and misappropriation of the government properties. As far as corruption in government is concerned, various factors have been responsible for the widespread corruption among governmental servants.

40 Institutional Framework And Corruption -147 In this point of view, the researcher has conducted a survey on public opinion to understand their awareness on corruption and on ACB and its performance, with the objectives. To understand the public participation and attitude towards bribery; to check the awareness among the public with reference to the office of vigilance and anti-corruption and to asses the performance of ACB in public perception. For this the researcher has conducted the study among general public who visit government offices in the city of Guntur in Andhra Pradesh, India. The sample size is 200 who are selected randomly. The responses and perceptions of the samples are extracted through a questionnaire designed and framed for it. (Annexure-II). When the researcher has interacted and discussed with the general public it is understood that (77 percent of the respondent) many people are not aware of Prevention of corruption Act They even do not know that bribery (corruption) is an offence. They disgustedly have marked that they have experienced found corruption in almost all government offices. The public tend to bribing as they are forced, to get their work done immediately to make the officials take immediate action on their issue; to get their work computed though there are certain lapses. All these factors cause corruption flourish. Of all these factors force of the public servant is the major one as stated by 63 percent of the respondents. The public for fear of reverse action and for fear of revenge do not complain to ACB against the public servant. Further majority of them do not know whom to complaint. Getting work soon and problem to get a witness for the complaint are also

41 Institutional Framework And Corruption -148 notable reasons for the public not to complain to ACB. It is surprising to learn that most of the public do not know where the office of ACB is located or that there is an agency to check the corruption in government offices and more surprisingly a few of them doubt even the sincerity of ACB officials. Because they came from police department on deputation basis. In public perception police department as one of the most corrupt department. The public have stated various reasons such as no fear on Anti- Corruption Laws or urgency of the person to get the work done, Meager salary of the officials concerned and officials desire to gain short-term benefits for the corruption to flourish. It is a pretty to learn that majority of the public are not aware of the ill effects of corruption to the Nations. Regarding the experience of the public with ACB, it is remarked though ACB arrest the corrupted officials the cases will not be decided soon. Besides, many are freed from the cases without conviction. In the opinion of the public police department is the most corrupted one. Though, as they have stated, the other departments like Revenue, Stamps and Registration, Sales Tax Department, etc are highly corrupted. They gain some benefit. Whereas bribing to police department do not offer any benefit to this doesn t mean that the other department are corruption free. They do indulge in corrupt activities. That is to say almost all the Government Department are corrupted and bribery flourishes there. Regarding the reaction of the public against corruption, it is learnt that they have never reacted against corruption by raising the issue at higher officials.