Jessica Jones, India Versus the United Nations: the Central Vigilance Commission Act Does Not Satisfy the U.n. Convention Against Corruption

• Publication year: 2008

INDIA VERSUS THE UNITED NATIONS: THE CENTRAL VIGILANCE COMMISSION ACT DOES NOT SATISFY THE U.N. CONVENTION AGAINST CORRUPTION

INTRODUCTION

In 2003, in Mérida, Mexico, delegates from all over the world gathered to sign the United Nations Convention against Corruption (UNCAC or Convention).¹At the meeting, Harin Pathak, India's Minister of State for Personnel, Public Grievances and Pensions, delivered a statement to the host president, writing that in India, "[e]ven the most powerful in the land are not exempt from the operation of the anti-corruption machinery in the country."²

Pathak's declaration spoke to the fear felt by many in India, including the Indian Supreme Court, which had pronounced, "[i]nertia was the common rule whenever the alleged offender was a powerful person."³The Indian Central Vigilance Commission (CVC), the apex anti-corruption body, battles this inertia while utilizing the Central Bureau of Investigation (CBI) as its primary investigatory tool.⁴

Throughout history, corruption has been recognized as a decaying force to society, and states have taken countermeasures against such deceitful practices.⁵Charges and punishments for corruption can be studied in the Egyptian, Babylonian, Hebrew, Chinese, Greek, and Roman civilizations,⁶and even the writers of the Bible felt it necessary to condemn corruption.⁷While ancient lawmakers did in fact punish individuals for corrupt practices, today's anti-corruption approaches break new ground by incorporating international efforts, domestic laws, and individual initiative. Scholars have researched the sources and causes of corruption because certain "socioeconomic and political factors raise the propensity of corruptive acts."⁸These factors include the

"stability of the government . . . [l]ittle loyalty to the community as a whole . . . [w]ide discretionary powers and low level of real wages . . . [a] defective electoral system . . . [and] rapid industrialization."⁹But perhaps most important is the reality that "existing anti-corruption law agencies are totally inadequate to prevent higher-level corruption."¹⁰

This Comment will focus on the relationship between India's current laws and political corruption. In a general sense, political corruption is the wrongful exercise of political power in return for private gain.¹¹Political corruption can occur at all levels of government.¹²It is more dangerous than other forms of corruption because it illegitimizes governments, threatens democratic progress,¹³and "demoralizes the entire fabric of the society."¹⁴But there are defenders of corruptive practices,¹⁵such as the international criminal justice scholar David Bayley.¹⁶Speaking specifically about India, Bayley remarked that "kickbacks can result in increased investments, that the opportunity for corruption can improve the quality of public servants, and that nepotism in government hiring might be viewed as a substitute for a public works system."¹⁷Some go further and argue that bribery is a function of both a market economy and an efficient supply and demand system.¹⁸However, defenders of corruption witnessed their support wane¹⁹as the general consensus that "corruption is universally condemned" developed.²⁰In fact, corruption is "detrimental to both political development and economic growth."²¹In light of corruption's destructive impact, both India and the world, acting most recently through the United Nations, have taken efforts to curb rampant corruption.

When the U.N. General Assembly passed Resolution 58/4 in 2003, adopting the UNCAC, the global community witnessed the culminating event in a decades-long transition. Efforts to curb corruption began with domestic laws, evolved into regional pacts, and concluded in the first internationally binding convention on "the single greatest obstacle to economic and social development."²²While the passage of the UNCAC is certainly a momentous event in international law, the agreement is only the first step toward halting corruption.²³Unless the 130 countries that have ratified the Convention and the other ten signatories²⁴earnestly implement it into domestic law, the Convention risks becoming another inspired, but nonetheless, ineffectual "soft law" instrument.²⁵

India, the largest democracy in the world,²⁶is a signatory to the UNCAC but still has not ratified it.²⁷India placed 85th out of 179 countries in

Transparency International's (TI) ranking of the world's least corrupt countries.²⁸India desperately needs to ratify the Convention and modify its domestic law to adequately implement it. The Indian government ignores some of the most critical components of the UNCAC, such as Articles 6, 30, and 36. These provisions mandate autonomous anti-corruption bodies; combining the three articles reveals the emphasis of UNCAC measures: unrestrained anti-corruption policy.²⁹India needs to commence the creation of truly independent anti-corruption bodies or modify existing institutions in accordance with these UNCAC articles.

The Indian government impedes the country's main corruption-fighting and investigation bodies by denying them autonomy. The CVC, currently the highest anti-corruption body in India, acquires its legal authority from the 2003

Central Vigilance Commission Act (CVC Act).³⁰The CVC Act provides limited vigilance powers to the Commission and raises speculation about its ability to fight subversive influences.³¹In 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 investigation of high-ranking officials.³²The restoration of the prior sanction requirement, known as the Single Directive, contradicts the 1997 Indian Supreme Court ruling in Vineet Narain v. Union of India, which struck down the Single Directive.³³

In the Vineet Narain judgment, the Supreme Court emphasized the same anti-corruption initiatives as UNCAC Articles 6 and 36, namely the functioning of anti-corruption bodies free from undue influence.³⁴When the

Indian legislature passed the CVC Act in 2003, it not only circumvented the Supreme Court's judgment but also the spirit of Article 6's requirement of an independent anti-corruption body³⁵and Article 36's requirement of independent detection and investigation agencies.³⁶Thus, while India does have laws criminalizing numerous forms of corruption, the government's effort to limit the CVC and cripple the CBI illustrates that "the effectiveness of these laws is far from satisfactory."³⁷

In addition to denying the CVC, and more significantly the CBI, proper independence, the CVC Act also conflicts with Article 30 of UNCAC. Article

30 requires a state to balance the immunities and privileges afforded to public officials with the necessity of investigation and prosecution of such officials.³⁸

The resurrected Single Directive does not create such a balance; it provides blanket immunity to high-ranking public officials that can only be rescinded by the Central Government.³⁹Furthermore, the Single Directive's creation of a protected class of public officials conflicts with not only the UNCAC but also the Indian Constitution's guarantee of equality before the law.⁴⁰

This Comment will examine the history of both Indian and global efforts to halt the use of corruptive practices. A focus on political corruption will lead to an analysis of whether Indian efforts at forming an independent anti-corruption body and, by extension, an independent investigatory body fulfill the mandates of the UNCAC. This necessitates a thorough examination of the CVC Act because the Act regulates the country's primary anti-corruption body and because the Act is the latest anti-corruption legislation that India has introduced.

An analysis of the CVC Act's impact begins with a close study of the Single Directive in Vineet Narain and then within the Act itself. Discussion of the CVC Act also will analyze the application of the Single Directive in the context of UNCAC implementation, the Article 6 requirement of domestic independent anti-corruption bodies, and Article 30's balance between privileges and immunities provided to public officials and the power to investigate.

Additionally, this Comment will discuss the currently pending Indian Supreme Court case Subramanian Swamy v. Director, CBI, which echoes the criticisms found in Vineet Narain.⁴¹The court in Swamy should affirm its decision in Vineet Narain and find the reintroduced Single Directive unconstitutional as a violation of equality before the law. Beyond recommending the rescission of the Single Directive, this Comment will also suggest possible models for new legislation or amendments to the CVC Act to fulfill UNCAC Articles 6 and 36.

I. BACKGROUND: EFFORTS TO HALT CORRUPTION

Understanding the large burden corruption places on India requires knowledge of the historic practice of corruption and Indian countermeasures.

In the past, anti-corruption efforts focused on domestic legislation.⁴²However, as nations realized that corruptive practices had extraterritorial effects, countries began to implement broader steps to ensure honest political practices.⁴³Analysis of legal developments in this area focuses on the modern international system's emerging acknowledgement that criminalizing corruption is not adequate to eliminate it and that an effective strategy includes specialized anti-corruption bodies.⁴⁴

A. Transnational Anti-Corruption Measures

International law only began witnessing transnational anti-corruption developments at the end of the Cold War, when countries were able to stop supporting other nations' "corrupt regimes for national security reasons."⁴⁵

Global anti-corruption efforts began with transitioning domestic efforts into regional initiatives.⁴⁶The numerous regional conventions differ on several points, including general versus specific provisions against corruption, strong versus weak or non-existent post-adoption monitoring systems...