INDIA VERSUS THE UNITED NATIONS THE CENTRAL VIGILANCE COMMISSION by leg38704

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									    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).1 At 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.”3 The 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.5 Charges and punishments for corruption can be studied in the
Egyptian, Babylonian, Hebrew, Chinese, Greek, and Roman civilizations,6 and


      1 United Nations Convention against Corruption pmbl., Dec. 11, 2003, S. TREATY DOC. NO. 109-6

(2005), 43 I.L.M. 37 [hereinafter UNCAC]; see also G.A. Res. 58/4, pmbl., U.N. GAOR, 58th Sess., Supp.
No. 49, U.N. Doc. A/RES/58/4 (Oct. 31, 2003) [hereinafter G.A. Res. 58/4].
      2 H.E. Mr. Harin Pathak, Minister of State (Home, Personnel & Pensions) and Leader of the Indian

Delegation, Address at the High Level Political Conference for the Purpose of Signing the United Nations
Convention Against Corruption (Dec. 9–11, 2003), available at http://persmin.gov.in/WriteData/
CircularNotification/ScanDocument/speechmos.pdf.
      3 Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 243.
      4 See infra Part I.B.2.b.
      5 Daniel Kaufmann, Corruption: The Facts, FOREIGN POL’Y, Summer 1997, at 114, 114.
      6 S.S. GILL, PATHOLOGY OF CORRUPTION xiii (1998) (“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 their provinces and used their loot to pay off the
judges they would stand in front of in the near future.”); see also LOUIS JOSEPH CYRILLE PROAL, POLITICAL
CRIME 208 (Patterson Smith Pub. Corp. 1973) (1898) (quoting the ancient historian Sallust, quoting King
Jugurtha describing Rome as a “[v]enal city, that will speedily perish if it finds a buyer”).
800                          EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

even the writers of the Bible felt it necessary to condemn corruption.7 While
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.”8 These 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.”9 But 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.11 Political corruption can
occur at all levels of government.12 It is more dangerous than other forms of
corruption because it illegitimizes governments, threatens democratic
progress,13 and “demoralizes the entire fabric of the society.”14 But there are
defenders of corruptive practices,15 such as the international criminal justice
scholar David Bayley.16 Speaking 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.”17 Some go further and argue that bribery is a function of both a



      7 See, e.g., Exodus 23:8 (“You shall not take a bribe, for a bribe blinds the clear-sighted and subverts the

cause of the just.”).
      8 SURENDRA BAHADUR SINGH, JUDICIAL RESPONSE TO PREVENTION OF CORRUPTION IN PUBLIC

SERVANTS IN INDIA 10 (2004).
      9 Id. at 11–12.
     10 Id. at 12.
     11 R.B. JAIN, PUBLIC ADMINISTRATION IN INDIA: 21ST CENTURY CHALLENGES FOR GOOD GOVERNANCE

225 (2001).
     12 Id.
     13 UNCAC, supra note 1, pmbl.
     14 JAIN, supra note 11, at 226.
     15 See, e.g., NICCOLÒ MACHIAVELLI, THE PRINCE 61 (Peter E. Bondanella trans., Oxford Univ. Press

2005) (1532) (“[A sovereign] cannot observe all those things for which men are considered good, because in
order to maintain the state he must often act against his faith, against charity, against humanity, and against
religion. . . . [H]e should know how to enter into evil when forced by necessity.”).
     16 ROBERTA ANN JOHNSON, STRUGGLE AGAINST CORRUPTION: A COMPARATIVE STUDY 8 (2004).
     17 Id.
2008]                         INDIA VERSUS THE UNITED NATIONS                                                  801

market economy and an efficient supply and demand system.18 However,
defenders of corruption witnessed their support wane19 as the general
consensus that “corruption is universally condemned” developed.20 In fact,
corruption is “detrimental to both political development and economic
growth.”21 In 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.”22 While the passage of the UNCAC is certainly a momentous
event in international law, the agreement is only the first step toward halting
corruption.23 Unless the 130 countries that have ratified the Convention and
the other ten signatories24 earnestly 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,26 is a signatory to the UNCAC
but still has not ratified it.27 India placed 85th out of 179 countries in

    18 Kaufmann, supra note 5, at 117 (“This rigorously held view maintains that under competitive bidding

for a government procurement contract the highest briber will win—and the lowest-cost firm will be able to
afford the highest bribe.”).
    19 Id. at 115.
    20 Philip M. Nichols, Corruption as an Assurance Problem, 19 AM. U. INT’L L. REV. 1307, 1308 (2004).
    21 JOHNSON, supra note 16, at 9.
    22 Id. at 10.
    23 Int’l Chamber of Commerce [ICC], Comm’n on Anti-Corruption, ICC Views on the UN Convention

against Corruption, at 3, ICC Doc. 194/44 (June 22, 2005), available at http://www.iccwbo.org/uploadedFiles/
ICC/policy/anticorruption/Statements/Policy_Statement_on_the_UN_Convention_against_Corruption.pdf
[hereinafter ICC Views on the UNCAC].
    24 U.N. Office on Drugs and Crime [UNODC], Signatories to the United Nations Convention against

Corruption, http://www.unodc.org/unodc/en/treaties/CAC/signatories.html (last visited Jan. 30, 2009)
[hereinafter UNCAC Signatories].
    25 See DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 28 (2006) (explaining that treaties

create soft law when the parties do not intend to be legally bound by the agreement but that soft law can
“mature” into hard law and become enforceable).
    26 2 ENCYCLOPEDIA OF THE DEVELOPING WORLD 1118 (Thomas M. Leonard ed., 2006).
    27 UNCAC Signatories, supra note 24. In the treaty making process, after debate and negotiations,

parties sign an agreement. BEDERMAN, supra note 25, at 30. Then, in most international treaties, a signatory
must ratify the treaty. Id. Ratification “is the act by which a State makes clear its intent to be legally bound by
the treaty.” Id.
802                         EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

Transparency International’s (TI) ranking of the world’s least corrupt
countries.28 India 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.29 India 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).30 The CVC Act provides
limited vigilance powers to the Commission and raises speculation about its
ability to fight subversive influences.31 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 investigation
of high-ranking officials.32 The 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.34 When the

     28 Transparency International, Corruption Perceptions Index 2008, http://www.transparency.org/policy_

research/surveys_indices/cpi/2008 (last visited Jan. 30, 2009). Transparency International (TI) is an
international organization that fights corruption. About Transparency International, http://www.transparency.
org/about_us (last visited Jan. 30, 2009). It does not investigate allegations of corruption but prompts
countries to instigate anti-corruption practices. Id. Denmark ranked as the least corruptive state in TI’s
Corruption Perceptions Index; Somalia placed 180th, the most corruptive state. Id.
     29 Article 6 refers to an independent anti-corruption institution that supervises domestic anti-corruption

polices and the implementation of appropriate laws. UNCAC, supra note 1, art. 6. Article 30(2) does not
discuss institutions but general prosecution, adjudication, and sanctions policies. Id. art. 30(2). Article 36
focuses on independent bodies that specialize in law enforcement, such as detection and investigative bodies.
Id. art. 36.
     30 Pathak, supra note 2; Central Vigilance Commission Act, No. 45 of 2003 (India).
     31 See Pathak, supra note 2.
     32 Central Vigilance Commission Act, No. 45 of 2003, § 26 (6A)(1).
     33 Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 243.
     34 See id. at 243 (recognizing that “a scheme giving the needed insulation from extraneous influences

even of the controlling executive, is imperative”).
2008]                          INDIA VERSUS THE UNITED NATIONS                                                 803

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 body35 and Article 36’s requirement of
independent detection and investigation agencies.36 Thus, 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.39 Furthermore, the Single Directive’s creation of a



   35   Article 6 provides that:

        1. Each State Party shall, in accordance with the fundamental principles of its legal system,
        ensure the existence of a body or bodies, as appropriate, that prevent corruption . . . .

        2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the
        necessary independence . . . to enable the body or bodies to carry out its or their functions
        effectively and free from any undue influence.
UNCAC, supra note 1, art. 6(1)–(2).
  36 Article 36 provides that:


        Each State Party shall, in accordance with the fundamental principles of its legal system, ensure
        the existence of a body or bodies or persons specialized in combating corruption through law
        enforcement. Such body or bodies or persons shall be granted the necessary independence . . . to
        be able to carry out their functions effectively and without any undue influence.
UNCAC, supra note 1, art. 36.
   37 C. Raj Kumar, Corruption and Human Rights: Promoting Transparency in Governance and the

Fundamental Right to Corruption-Free Service in India, 17 COLUM. J. ASIAN L. 31, 44–48 (2003).
   38 Article 30(2) provides that:


        Each State Party shall take such measures as may be necessary to establish or maintain . . . an
        appropriate balance between any immunities or jurisdictional privileges accorded to its public
        officials for the performance of their functions and the possibility, when necessary, of effectively
        investigating, prosecuting and adjudicating offences established in accordance with this
        Convention.
UNCAC, supra note 1, art. 30(2).
   39 Delhi Special Police Establishment Act, No. 25 of 1946, § 6A (India) (as amended by the Central

Vigilance Commission Act, No. 45 of 2003, § 26(c)).
804                        EMORY INTERNATIONAL LAW REVIEW                                           [Vol. 22

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.41 The 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.




    40 See INDIA CONST. art. 14 (“The State shall not deny to any person equality before the law or the equal

protection of the laws within the territory of India.”).
    41 See Subramanian Swamy v. Director, CBI (2005) 2 S.C.C. 317, 319–20 (referred to larger bench on

Feb. 4, 2005) (addressing the constitutionality of the Single Directive found in the Delhi Special Police
Establishment Act).
2008]                        INDIA VERSUS THE UNITED NATIONS                                               805

In the past, anti-corruption efforts focused on domestic legislation.42 However,
as nations realized that corruptive practices had extraterritorial effects,
countries began to implement broader steps to ensure honest political
practices.43 Analysis 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.46 The numerous regional conventions differ on several
points, including general versus specific provisions against corruption, strong
versus weak or non-existent post-adoption monitoring systems, and the use of
specialized anti-corruption bodies.47      Despite the distinctions, regional
conventions predated the UNCAC, and thus all presented possible provisions
and models that a future international convention could adopt.48

    42 See UNODC, THE GLOBAL PROGRAMME AGAINST CORRUPTION: U.N. ANTI-CORRUPTION TOOLKIT 26

(3d ed. 2004), available at http://www.unodc.org/documents/corruption/publications_toolkit_sep04.pdf
[hereinafter U.N. TOOLKIT].
    43 Id.
    44 ORGANISATION FOR ECON. CO-OPERATION AND DEV. [OECD], ANTI-CORRUPTION NETWORK FOR

EASTERN EUROPE AND CENTRAL ASIA, SPECIALISED ANTI-CORRUPTION INSTITUTIONS: REVIEW OF MODELS 11
(2007), available at www.oecd.org/dataoecd/7/4/39971975.pdf [hereinafter REVIEW OF MODELS].
    45 Philippa Webb, The United Nations Convention Against Corruption: Global Achievement or Missed

Opportunity?, 8 J. INT’L ECON. L. 191, 193 (2005).
    46 Id.
    47 See id. at 193–203.
    48 See UNCAC, supra note 1, pmbl. The preamble states:

        Recalling the work carried out by other international and regional organizations in this field,
        including the activities of the African Union, the Council of Europe, the Customs Cooperation
        Council (also known as the World Customs Organization), the European Union, the League of
        Arab States, the Organisation for Economic Cooperation and Development and the Organization
        of American States,
        Taking note with appreciation of multilateral instruments to prevent and combat corruption,
        including, inter alia, the Inter-American Convention against Corruption, adopted by the
        Organization of American States on 29 March 1996 . . . the Convention on Combating Bribery of
        Foreign Public Officials in International Business Transactions, adopted by the Organisation for
        Economic Cooperation and Development on 21 November 1997, the Criminal Law Convention
        on Corruption, adopted by the Committee of Ministers of the Council of Europe on 27 January
806                            EMORY INTERNATIONAL LAW REVIEW                                           [Vol. 22

      1. Regional Conventions Around the World
    While anti-corruption measures traditionally took the form of domestic
legislation, as the transnational impact of corruption became more obvious,
states began regional actions to decrease illegal practices.49 In 1996, the
Organization of American States adopted the Inter-American Convention
Against Corruption (OAS Convention), the first agreement to bind multiple
nations; it had 22 members, including the United States.50 The OAS
Convention was important not only as the first multilateral approach to
corruption, but also because its members ranged from developed, industrialized
nations to developing countries.51 The OAS Convention also stressed the
importance of “taking appropriate action against persons who commit acts of
corruption in the performance of public functions.”52 Comparing the OAS
Convention to later regional treaties reveals that the OAS Convention’s
provisions are less comprehensive and often rather general.53
   Adopted in 1997, the Organization for Economic Cooperation and
Development’s Convention on Combating Bribery of Foreign Public Officials

           1999 . . . and the African Union Convention on Preventing and Combating Corruption, adopted
           by the Heads of State and Government of the African Union on 12 July 2003.
Id.
      49Webb, supra note 45, at 193.
      50Id.
    51 See Org. of Am. States, Dep’t of Int’l Law, Multilateral Treaties, B-58: Inter-American Convention

Against Corruption, http://www.oas.org/juridico/english/Sigs/b-58.html (last visited Jan. 30, 2009) (listing the
signatories to the Convention); see also JAIN, supra note 11, at 222 (“Corruption is not merely a distinguishing
feature of developing countries, it is common even in the developed societies.”); Claes Sandgren, Combating
Corruption: The Misunderstood Rule of Law, 39 INT’L LAW. 717, 717–18 (2005).
    52 Inter-American Convention Against Corruption pmbl., Mar. 29, 1996, S. TREATY DOC. NO. 105-39

(1998), 35 I.L.M. 724 [hereinafter OAS Convention]. The OAS Convention Article 2 lists only two purposes:
           1. To promote and strengthen the development by each of the States Parties of the mechanisms
           needed to prevent, detect, punish and eradicate corruption; and
           2. To promote, facilitate and regulate cooperation among the States Parties to ensure the
           effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the
           performance of public functions and acts of corruption specifically related to such performance.
Id. art 2. However, the Convention did not lay the foundation for independent anti-corruption bodies. Instead,
OAS Convention Article 3’s preventive measures only require “[o]versight bodies with a view to
implementing modern mechanisms for preventing, detecting, punishing and eradicating corrupt acts.” Id. art
3(9).
     53 See, e.g., id. art. 3(2). The OAS Convention broadly notes, in regard to preventive measures, that

states should implement “[m]echanisms to enforce these standards of conduct.” Id. While later regional
conventions and the UNCAC explicitly state the necessity of autonomous anti-corruption bodies, the OAS
Convention states that an “oversight” body “with a view to . . . preventing, detecting, [and] punishing”
corruptive acts is required. Id. art. 3(9).
2008]                         INDIA VERSUS THE UNITED NATIONS                                                 807

in International Business Transactions (OECD Convention) has 37 members.54
Together these members are responsible for “70 percent of world exports and
90 percent of foreign direct investment” and are “home to over 75 percent of
multinational corporations.”55 The OECD Convention, which entered into
force in 1999,56 recognized the need for industrialized countries to take a stand
against corruption, especially in the context of international business.57
Importantly, and unlike the OAS Convention, the OECD Convention included
an implementation and monitoring system.58 The monitoring system is a two-
phase process.59 Phase 1 examines states’ legal actions implementing the
OECD Convention and whether such actions are adequate.60 Phase 2 takes a
closer look at the institutions created to enforce the OECD Convention.61
   In 1999, the Council of Europe produced two anti-corruption initiatives: the
Criminal Law Convention and the Civil Law Convention on Corruption.62 The
Criminal Law Convention echoes the UNCAC in its requirement of
independent anti-corruption authorities.63 In 2003, the African Union passed

    54 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

pmbl., Dec. 17, 1997, S. TREATY DOC. NO. 105-43 (1998), 37 I.L.M. 1 [hereinafter OECD Convention];
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
Ratification Status as of 12 March 2008, available at http://www.oecd.org/dataoecd/59/13/40272933.pdf.
    55 Webb, supra note 45, at 195.
    56 OECD Anti-Bribery Convention: Entry into Force of the Convention, http://www.oecd.org/document/

12/0,3343,en_2649_34859_2057484_1_1_1_1,00.html (last visited Jan. 30, 2009).
    57 See OECD Convention, supra note 54, pmbl.
    58 Id. art 12; Webb, supra note 45, at 197.
    59 See OECD Anti-Bribery Convention: Procedure of Self- and Mutual Evaluation–Phase 1, http://www.

oecd.org/document/21/0,3343,en_2649_34859_2022613_1_1_1_1,00.html (last visited Jan. 30, 2009); OECD
Anti-Bribery Convention: Procedure of Self- and Mutual-Evaluation—Phase 2, http://www.oecd.org/
document/27/0,3343,en_2649_34859_2022939_1_1_1_1,00.html. (last visited Jan. 30, 2009).
    60 OECD Anti-Bribery Convention: Procedure of Self- and Mutual-Evaluation–Phase 1, supra note 59.

Phase 1
        includes elements of both self and mutual evaluation. The approach is ‘vertical’ or based on
        examinations country-by-country. In consultation with the country examined, two countries are
        chosen to lead the examination. The countries acting as lead examiners choose the experts who
        take part in the preparation of the preliminary report. The entire group of countries Party to the
        Convention evaluates each country’s performance and adopts conclusions.
Id.
    61 See OECD Anti-Bribery Convention: Procedure of Self- and Mutual-Evaluation–Phase 2, supra note

59 (demonstrating that the methods used to monitor these institutions are similar to Phase 1 methods).
    62 Webb, supra note 45, at 198–99.
    63 See Council of Europe, Criminal Law Convention on Corruption art. 20, Jan. 27, 1999, 38 I.L.M. 505

(“Each Party shall adopt such measures as may be necessary to ensure that persons or entities are specialised in
the fight against corruption. They shall have the necessary independence in accordance with the fundamental
principles of the legal system of the Party, in order for them to be able to carry out their functions effectively
and free from any undue pressure.”); REVIEW OF MODELS, supra note 44, at 11. The Criminal Law
808                        EMORY INTERNATIONAL LAW REVIEW                                           [Vol. 22

the African Union Convention on Preventing and Combating Corruption (AU
Convention).64 The AU Convention “aims to promote mechanisms to fight
corruption in the public and private sectors, to facilitate cooperation among
states parties, and to coordinate the policies and legislation relevant to
corruption.”65 The AU Convention created an Advisory Board of Corruption
to monitor the nations.66 Like the UNCAC, the AU Convention requires that
states parties create independent national agencies to combat corruption
offenses.67 However, it is discouraging that as of publication only 28 out of 53
African states have ratified the convention.68

   2. United Nations Initiatives
    With the adoption of the U.N. Convention against Transnational Organized
Crime (U.N. Transnational Crime Convention) in 2000, the United Nations
implemented its first binding anti-corruption measure.69             The U.N.
Transnational Crime Convention marked the first global effort to reign in the
forces of corruption.70 While targeting organized crime in this instrument, the
United Nations noted that the Convention provided the “necessary legal
framework for international cooperation in combating . . . corruption.”71
Article 8 of the U.N. Transnational Crime Convention criminalizes corruption,


Convention on Corruption included many of the Council of Europe’s earlier Twenty Guiding Principles for the
Fight Against Corruption. See Eur. Consult. Ass., On The Twenty Guiding Principles for the Fight Against
Corruption, 101st Sess., Res. 97 (24) (1997), available at www.coe.int/t/dg1/greco/documents/Resolution(97)
24_EN.pdf. One of the principles is
       to ensure that those in charge of the prevention, investigation, prosecution and adjudication of
       corruption offences enjoy the independence and autonomy appropriate to their functions, are free
       from improper influence and have effective means for gathering evidence, protecting the persons
       who help the authorities in combating corruption and preserving the confidentiality of
       investigations.
Id. principle 3.
     64 African Union Convention on Preventing and Combating Corruption, July 11, 2003, 43 I.L.M. 5

[hereinafter AU Convention].
     65 Webb, supra note 45, at 202.
     66 Id. at 203.
     67 AU Convention, supra note 64, art. 5.
     68 African Union, List of Countries Which Have Signed, Ratified/Acceded to the African Convention on

Preventing and Combating Corruption, http://www.africa-union.org/root/AU/Documents/Treaties/treaties.htm
(scroll to “African Union Convention on Preventing and Combating Corruption”; follow “List of Countries,
which have Signed, Ratified/Acceded” hyperlink) (last visited Jan. 30, 2009).
     69 Webb, supra note 45, at 203.
     70 Id.
     71 U.N. Convention Against Transnational Organized Crime pmbl., Nov. 15, 2000, S. TREATY DOC. NO.

108-16 (2004), 2225 U.N.T.S. 209.
2008]                        INDIA VERSUS THE UNITED NATIONS                                              809

including offenses such as “offering or giving to a public official . . . an undue
advantage . . . in order that the official act or refrain from acting in the exercise
of his or her official duties.”72 Article 9 provides that parties should
implement measures to “ensure effective action by its authorities in the
prevention, detection and punishment of the corruption of public officials.”73
The quick drafting, signing, and entering into force of the U.N. Transnational
Crime Convention ultimately benefited the UNCAC because the warm
reception of the Transnational Crime Convention persuaded the United Nations
that there was international agreement on the use of global anti-corruption
measures.74
    Satisfied that the international community was eager to eliminate
corruption and that states recognized that corruptive acts “respect[] no
borders,”75 the United Nations marched forward, creating a binding instrument
specifically attacking corruption.76 The U.N. General Assembly passed
Resolution 55/61 in 2001, creating an ad hoc committee to draft an anti-
corruption convention.77 On October 31, 2003, the U.N. General Assembly
passed resolution 58/4, adopting the UNCAC.78 In December 2003, 95 states
signed the UNCAC.79 The Convention entered into force two years later on
December 14, 2005.80 UNCAC is the first binding international agreement
attacking corruption.81 Currently, the UNCAC has 130 parties and 140

   72    Id. art 8(1)(a).
   73    Id. art 9(2). This clause also conflicts with the CVC Act discussed in this Comment. However, like
India’s status in regards to UNCAC, India is only a signatory of the U.N. Convention against Transnational
Organized Crime. UNODC, U.N. Convention against Transnational Organized Crime, signatures and
ratifications, http://www.unodc.org/unodc/en/treaties/CTOC/countrylist.html (last visited Jan. 30, 2009).
     74 Webb, supra note 45, at 204. The UNCAC also benefited from previous transnational instruments

because it was able to review their provisions, use, and successes. See G.A. Res. 55/61, ¶ 3, U.N. GAOR, 55th
Sess., Supp. No. 49, U.N. Doc. A/Res/55/61 (Jan. 22, 2001) [hereinafter G.A. Res. 55/61].
     75 Webb, supra note 45, at 192.
     76 Id. at 204–05. The UNCAC recalls

        work carried out by other international and regional organizations in this field, including the
        activities of the African Union, the Council of Europe, the Customs Cooperation Council (also
        known as the World Customs Organization), the European Union, the League of Arab states, the
        Organisation for Economic Cooperation and Development and the Organization of American
        States.
UNCAC, supra note 1, pmbl. It also expresses “appreciation of multilateral instruments to prevent and combat
corruption.” Id.
    77 G.A. Res. 55/61, supra note 74, ¶ 5; Webb, supra note 45, at 204–05.
    78 G.A. Res. 58/4, supra note 1.
    79 Webb, supra note 45, at 191.
    80 UNCAC Signatories, supra note 24.
    81 Webb, supra note 45, at 191.
810                           EMORY INTERNATIONAL LAW REVIEW                                              [Vol. 22

signatories.82 India signed the treaty on December 9, 2005, but has yet to ratify
it.83 Since India has not ratified the UNCAC, it is not obligated to follow its
provisions.84
    The UNCAC Preamble states that the parties to the Convention are
“concerned about the seriousness of problems and threats posed by corruption
to the stability and security of societies, undermining the institutions and
values of democracy, ethical values and justice and jeopardizing sustainable
development and the rule of law.”85 The preamble also recognizes the need for
an international agreement to tackle corruption: “corruption is no longer a local
matter but a transnational phenomenon that affects all societies and economies,
making international cooperation to prevent and control it essential.”86
   The UNCAC touches on three major areas of anti-corruption efforts:
prevention, criminalization, and international cooperation.87 Hence, it does not
merely criminalize corruption offenses; it also seeks to prevent corruption.88
As mentioned above, there are three relevant articles found in the preventive
measures chapter of the UNCAC. Article 6 requires the existence of a
preventive anti-corruption body or bodies.89 Earlier regional conventions and
numerous states’ domestic laws reveal the overwhelming belief that

    82   UNCAC Signatories, supra note 24.
    83   Id.
    84 See BEDERMAN, supra note 25, at 30.
    85 UNCAC, supra note 1, pmbl.
    86 Id.
    87 Webb, supra note 45, at 205–06.
    88 UNCAC Article 1 delineates the purposes of the Convention, which include “[t]o promote and

strengthen measures to prevent and combat corruption more efficiently and effectively” and “[t]o promote,
facilitate and support international cooperation and technical assistance in the prevention of and fight against
corruption.” UNCAC, supra note 1, art. (1)(a)–(b).
    89 Article 6 states:

                1. Each State Party shall, in accordance with the fundamental principles of its legal
         system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such
         means as:
                (a) Implementing the policies referred to in article 5 of this Convention and, where
         appropriate, overseeing and coordinating the implementation of those policies;
                (b) Increasing and disseminating knowledge about the prevention of corruption.

                 2. Each State Party shall grant the body or bodies referred to in paragraph 1of this article
         the necessary independence, in accordance with the fundamental principles of its legal system, to
         enable the body or bodies to carry out its or their functions effectively and free from any undue
         influence. The necessary material resources and specialized staff, as well as the training that
         such staff may require to carry out their functions, should be provided.
Id. art. 6(1)–(2).
2008]                         INDIA VERSUS THE UNITED NATIONS                                               811

independent and specialized bodies are essential in the anti-corruption
toolkit.90 UNCAC Article 6(1) requires that each party to the Convention
“ensure the existence of a body or bodies, as appropriate, that prevent
corruption.”91 A specialized anti-corruption body does not always guarantee
success; these bodies must be given the authority to effectively implement
policy.92 Article 6(2) demands that each state party “grant the body or
bodies . . . the necessary independence, in accordance with the fundamental
principles of its legal system, to enable the body or bodies to carry out its or
their functions effectively and free from any undue influence.”93 The functions
of the independent anti-corruption bodies include: “[i]mplementing the policies
referred to in article 5 of this Convention” and “[i]ncreasing and disseminating
knowledge about the prevention of corruption.”94 Article 6 requires the
creation of a multi-disciplinary body to develop, research, coordinate, and
monitor policy.95
   The UNCAC continues the modern anti-corruption strategy of utilizing
independent bodies through Article 36, which requires parties to provide for
specialized anti-corruption authorities.96 Article 36 requires each state to
“ensure the existence of a body or bodies of persons specialized in combating
corruption through law enforcement.”97 These specialized bodies “shall be
granted the necessary independence . . . to be able to carry out their functions


    90 The success of the world’s best-known anti-corruption body, Hong Kong’s Independent Commission

Against Corruption, led many other countries to employ such specialized bodies as well. REVIEW OF MODELS,
supra note 44, at 5 (“Establishing such bodies was often seen as the only way to reduce widespread corruption,
as existing institutions were considered too weak for the task.”).
    91 UNCAC, supra note 1, art. 6(1).
    92 REVIEW OF MODELS, supra note 44, at 6 (“In order to ensure that the specialised anti-corruption bodies

are effective in their operations, the authorities must ensure that they have all the necessary means.”).
    93 UNCAC, supra note 1, art. 6(2).
    94 Id. art. 6(1)(a)–(b).
    95 Id. art. 6(1)–(2).
    96 Id. art. 36. Article 36 states:

        Each State Party shall, in accordance with the fundamental principles of its legal system, ensure
        the existence of a body or bodies or persons specialized in combating corruption through law
        enforcement. Such body or bodies or persons shall be granted the necessary independence, in
        accordance with the fundamental principles of the legal system of the State Party, to be able to
        carry out their functions effectively and without any undue influence. Such persons or staff of
        such body or bodies should have the appropriate training and resources to carry out their tasks.
Id.
     97 Id. The OECD defines these specialized bodies as bodies that have both “specialised staff with special

skills and a specific mandate for fighting corruption.” REVIEW OF MODELS, supra note 44, at 6 (italics
omitted).
812                              EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

effectively and without any undue influence.”98 In one of its studies, the
OECD reviewed anti-corruption institutions in numerous countries and
determined that existing institutions in developing countries were often
inadequate and that separate anti-corruption bodies, in addition to regular law
enforcement bodies, were necessary because of the rampant nature of
corruption.99
    Article 30 reiterates the underlying principles of anti-corruption body
autonomy found in Articles 6 and 36. Article 30 also arguably conflicts with
Indian law. It requires the balancing of public servants’ immunities and
privileges with the possible necessity of investigation and prosecution.100 It
also directs that any domestic laws that provide discretionary prosecutorial
powers be used to “maximize the effectiveness of law enforcement
measures . . . with due regard to the need to deter the commission of such
offences.”101 As well as emphasizing the authority of anti-corruption agents,
Article 30 can be construed as strengthening the UNCAC’s underlying
principles of “fairness, responsibility, and equality before the law and the need
to safeguard integrity.”102 By limiting immunity for public officials and
prompting responsible use of discretionary prosecutorial powers, Article 30
sends an international message that civil servants will not be exempt from the
law.



    98 UNCAC, supra note 1, art. 36. Regarding independence, “[e]xperience suggests that it is the structural

and operational autonomy that is important . . . . This is particularly important for law enforcement bodies.”
REVIEW OF MODELS, supra note 44, at 6 (italics omitted).
    99 REVIEW OF MODELS, supra note 44, at 6.
   100 UNCAC, supra note 1, art. 30(2). Subsection 2 states:

            Each State Party shall take such measures as may be necessary to establish or maintain, in
            accordance with its legal system and constitutional principles, an appropriate balance between
            any immunities or jurisdictional privileges accorded to its public officials for the performance of
            their functions and the possibility, when necessary, of effectively investigating, prosecuting and
            adjudicating offences established in accordance with this Convention.
Id.
      101   Id. art. 30(3). Subsection 3 states:
            Each State Party shall endeavor to ensure that any discretionary legal powers under its domestic
            law relating to the prosecution of persons for offences established in accordance with this
            Convention are exercised to maximize the effectiveness of law enforcement measures in respect
            of those offences and with due regard to the need to deter the commission of such offences.
Id.
      102
        Id. pmbl. The principle of equality before the law is one of the strongest arguments against the Single
Directive. See Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 230.
2008]                         INDIA VERSUS THE UNITED NATIONS                                                813

   In addition to emphasizing autonomous anti-corruption bodies, the
UNCAC also attempted to tackle the sources of corruption. One such area was
campaign and electoral processes.103 While it is easy to recognize the link
between transparent electoral processes and faith in legitimate governments,
the ad hoc committee failed to draft strong measures to combat electoral
corruption. Article 7 merely offers a recommendation for each state party to
“consider taking appropriate legislative and administrative measures . . . to
enhance transparency in the funding of candidatures for elected public office
and, where applicable, the funding of political parties.”104
    Another portion of the UNCAC, Article 10, addresses the preventive
measure of public reporting and requires that parties take measures to promote
transparency of government decisions and administration.105 Article 10(a)
includes measures such as “[a]dopting procedures or regulations allowing
members of the general public to obtain, where appropriate, information on the
organization, functioning and decision-making processes of its public
administration and . . . on decisions and legal acts that concern members of the
public.”106 Also, Article 10(c) recommends that States publish information on
corruption within government institutions and administrations.107
   When the United Nations passed Resolution 58/4 and created the first
binding global anti-corruption convention, the global community witnessed a
milestone.108 However, the event will “be largely irrelevant if the rules are not

    103 Transparency International performed a survey of 40,000 people in over 40 countries and compiled the

results into a Global Corruption Barometer, which revealed that in 75% of the countries, electoral corruption
was the most important issue. Webb, supra note 45, at 215.
    104 UNCAC, supra note 1, art. 7(3).
    105 Id. art. 10 (“Taking into account the need to combat corruption, each State Party shall, in accordance

with the fundamental principles of its domestic law, take such measures as may be necessary to enhance
transparency in its public administration, including with regard to its organization, functioning and decision-
making processes, where appropriate.”).
    106 Id. art. 10(a) (“Adopting procedures or regulations allowing members of the general public to obtain,

where appropriate, information on the organization, functioning and decision-making processes of its public
administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts
that concern members of the public . . . .”).
    107 Id. art. 10(c) (“Publishing information, which may include periodic reports on the risks of corruption in

its public administration.”). Parties to the Convention found governmental transparency important because
“[p]ublic confidence and accountability in public administration are instrumental” to anti-corruption efforts.
UNODC, LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST
CORRUPTION, at 22, U.N. Sales No. E.06.IV.16 (2006) [hereinafter UNODC LEGISLATIVE GUIDE].
    108 See Press Release, United Nations, Secretary-General Lauds Adoption by General Assembly of United

Nations Convention Against Corruption, U.N. Doc. SG/SM/8977, GA/10200, SOC/CP/271 (Oct. 31, 2003)
available at http://www.un.org/News/Press/docs/2003/sgsm8977.doc.htm. Then-Secretary-General Kofi
stated:
814                             EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

embedded in an institutional and organizational structure that favors
compliance.”109 With this in mind, it is unfortunate that the UNCAC gives
states the deference to decide what is necessary to comply with the UNCAC
and “how far to incorporate the Convention into national law.”110
Furthermore, the International Chamber of Commerce (ICC) remarked that
“whether the Convention will make a practical impact will depend on whether
there will be an effective follow-up monitoring process.”111
    In accordance with Article 63, the UNCAC created the Conference of the
States Parties to the Convention.112 Article 63 states that the Conference of the
States Parties “shall acquire the necessary knowledge of the measures taken by
States Parties in implementing this Convention and the difficulties encountered
by them in doing so through information provided by them.”113 The
Conference of the States Parties first met in December 2006 and passed a
number of resolutions,114 using the Convention’s Article 63 power to




            The adoption of the United Nations Convention against Corruption sends a clear message that the
            international community is determined to prevent and control corruption. It warns the corrupt
            that betrayal of the public trust will no longer be tolerated. And it reaffirms the importance of
            core values, such as honesty, respect for the rule of law, accountability and transparency, in
            promoting development and making the world a better place for all.
Id.
   109 Webb, supra note 45, at 218; see also Press Release, supra note 108. Then-Secretary-General Annan

declared:
            The adoption of the new Convention is a remarkable achievement. But let us be clear: it is only a
            beginning. We must build on the momentum achieved to ensure that it enters into force as soon
            as possible. I urge all Member States to attend the Signing Conference in Merida, Mexico, in
            December, and to ratify the Convention at the earliest possible date.
Id.
      110Webb, supra note 45, at 221.
      111ICC Views on the UNCAC, supra note 24, at 3.
   112 UNCAC, supra note 1, art. 63(1) (“A Conference of the States Parties to the Convention is hereby

established to improve the capacity of and cooperation between States Parties to achieve the objectives set
forth in this Convention and to promote and review its implementation.”).
   113 Id. art. 63(5).
   114 Conference of the States Parties to the United Nations Convention against Corruption, 1st Sess.,

Amman, Jordan, Dec. 10–14, 2006, Report of the Conference of the States Parties to the United Nations
Convention Against Corruption on its First Session, at 3–10, U.N. Doc. CAC/COSP/2006/12 (Dec. 27, 2006)
[hereinafter First Session of the Conference of the States Parties]. At the first session, the Conference of the
States Parties adopted eight resolutions, including: Res. 1/1, creating a working group to make
recommendations concerning implementation of the UNCAC; Res. 1/2, requesting that the Secretariat finalize
a self-assessment checklist to be distributed to both parties and signatories; and Res. 1/3, appealing to states
parties to modify their laws in compliance with the convention. Id. at 3–5.
2008]                          INDIA VERSUS THE UNITED NATIONS                                                815

“establish, if it deems it necessary, any appropriate mechanism or body to
assist in the effective implementation of the Convention.”115
    The Conference of the States Parties passed Resolution 1/1, which created
an open-ended intergovernmental expert working group (Working Group) that
recommends viable strategies for assessing the incorporation of the
convention.116 Regarding the review mechanism, the Working Group agreed
that: “(a) it should be transparent, efficient, non-intrusive, inclusive and
impartial; (b) it should not produce any form of ranking; [and] (c) it should
provide opportunities to share good practices and challenges.”117 Following
Resolution 1/1, the U.N. Office of Drugs and Crime (UNODC) also launched a
voluntary pilot program for the review of the implementation of the
UNCAC.118 The pilot program’s measures centered on the tactics found in
Resolution 1/2, which dealt with the review of the implementation of the
UNCAC and commanded the Secretariat of the United Nations to create a self-
assessment checklist for parties to use to evaluate their compliance with the
UNCAC’s provisions.119 However, the checklist’s structure is basic.120 It asks
whether the country in question has adopted the measures to create an anti-
corruption body or bodies and instructs the party to cite the applicable laws or
measures and list any examples of success in use or implementation of this

   115  UNCAC, supra note 1, art. 63(7).
   116  See First Session of the Conference of the States Parties, supra note 114, at 3.
   117 Conference of the States Parties to the United Nations Convention against Corruption, 2d Sess., Nusa

Dua, Indonesia, Jan. 28–Feb. 1, 2008, Report on the Meeting of the Open-ended Intergovernmental Working
Group on Review of the Implementation of the United Nations Convention against Corruption held in Vienna
from 29 to 31 August 2007, ¶ 16, U.N. Doc. CAC/COSP/2008/3 (Sept. 12, 2007) [hereinafter Working Group
Report].
   118 See id. ¶ 23. Res. 1/1 of the First Session of the Conference of the States Parties requested the

UNODC,
         in the interim and subject to the availability of voluntary contributions, to assist parties, upon
         request, in their efforts to collect and provide information on their self-assessment and their
         analysis of implementation efforts and to report on those efforts to the Conference of the States
         Parties at its second session.
First Session of the Conference of the States Parties, supra note 114, at 4.
   119 First Session of the Conference of the States Parties, supra note 114, at 4.
   120 See U.S. Dep’t of State, Bureau of Int’l Narcotics and Law Enforcement Affairs, Self-assessment

Checklist on the Implementation of the United Nations Convention against Corruption, Aug. 15, 2007,
http://www.state.gov/documents/organization/91995.pdf. For this Comment, only the Article 6 checklist is
relevant. In a report on the review mechanisms for the UNCAC, Transparency International suggested that in
addition to this checklist, the Second Conference of the States Parties should create a secondary checklist that
would provide better focus on the implementation of Article 6, because this article is “crucially important for
capacity building to fight corruption.” FRITZ HEIMANN & GILLIAN DELL, TRANSPARENCY INTERNATIONAL,
RECOMMENDATIONS FOR REVIEW MECHANISM FOR UN CONVENTION AGAINST CORRUPTION 8 (2007).
816                          EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

article.121 The pilot program’s voluntary participants also used this checklist to
provide the Working Group with information on the implementation of the
UNCAC.122 The pilot program also utilized peer country review: “countries
would participate in reviews with one other country in their regional group and
a third country in an effort to foster closer regional dialogue and provide,
where possible, benchmarks for review that would be situated in a comparable
context.”123
    The Working Group discussed the pilot program’s effectiveness.124 It
agreed that the checklist, though only a basic tool, had provided useful
information on the participating states’ legislative implementation.125 The
Working Group also requested that a final report on the finding of the pilot
project and its review mechanisms be presented to the Conference of States
Parties at its second session.126 Though the Second Conference did not
formalize any of the Secretariat’s recommendations, any future official review
method should include some of the following elements: self assessment;
review of the information from self-assessment reports by regional, sectoral, or
global bodies; dialogue between countries and the Secretariat, experts, or peer
reviewers; cooperation between existing review mechanisms; and country
visits.127




   121   See U.S. Dep’t of State, supra note 120, at 1–3.
   122   Participating states parties include Argentina, Austria, Finland, France, Greece, Indonesia, Jordan, the
Netherlands, Norway, Peru, Poland, Romania, Sweden, the United Kingdom of Great Britain and Northern
Ireland, the United Republic of Tanzania, and the United States of America. Working Group Report, supra
note 117, ¶ 24. While the checklist was mandatory for states parties and recommended for signatory states,
only 65 states had submitted their self-assessment checklists as of January 21, 2008. Conference of the States
Parties to the United Nations Convention against Corruption, 2d Sess., Nusa Dua, Indonesia, Jan. 28–Feb. 1,
2008, Self-Assessment Reports Submitted as at 21 January 2008, U.N. Doc. CAC/COSP/2008/CRP.3 (Jan. 21,
2008). India had not submitted a self-assessment report. See id.
   123 Conference of the States Parties to the United Nations Convention against Corruption, 2d Sess., Nusa

Dua, Indonesia, Jan. 28–Feb. 1, 2008, The Pilot Review Programme: An Assessment, ¶ 5, U.N. Doc.
CAC/COSP/2008/9 (Jan. 3, 2008) [hereinafter Pilot Review Programme].
   124 Working Group Report, supra note 117, ¶¶ 22–26.
   125 See Pilot Review Programme, supra note 123, ¶ 7.
   126 Open-ended Intergovernmental Working Group on Review of the Implementation of the United

Nations Convention against Corruption, Aug. 29–31, 2007, Establishing a Mechanism for Reviewing the
Implementation of the United Nations Convention against Corruption, ¶ 26, U.N. Doc.
CAC/COSP/WG.1/2007/2 (Aug. 6, 2007).
   127 See Conference of the States Parties to the United Nations Convention against Corruption, 2d Sess.,

Nusa Dua, Indonesia, Jan. 28–Feb. 1, 2008, Parameters for Defining the Review Mechanism for the United
Nations Convention against Corruption, ¶ 12, U.N. Doc. CAC/COSP/2008/10 (Dec. 27, 2007).
2008]                     INDIA VERSUS THE UNITED NATIONS                                     817

B. India’s Historical Battle Against Corruption
    The following section traces the history of Indian corruption and reveals
the early prevalence of political corruption within the former colony and
emerging state. Indian domestic initiatives will also be examined, with
particular analysis of the nation’s primary anti-corruption body, the CVC, and
India’s powerful investigatory agency, the CBI.

  1. Roots of Indian Corruption
    Though a relatively new nation, India’s establishment rests upon a long
period of imperial governments.128 European merchants, attracted by the lure
of a burgeoning silk and spice trade, eventually became colonial masters.129
British encroachment into India began, however, with exclusive trade rights
granted to the British East India Company in 1600.130 Thus, the British “entry
into politics was gradual, first as allies of country powers, then as their virtual
directors, and only finally as masters.”131 A British proclamation in 1858
transferred all of the East India Company’s rights in the Indian territory to the
British government.132 With British rule came early examples of corruptive
bureaucratic practices. For instance, Warren Hastings, the first governor
general of the colony, caused so much embarrassment to the British
government that Edmund Burke famously stated at Hastings’s impeachment
trial:
        I impeach him in the name of the people of India, whose laws, rights,
        and liberties he has subverted, whose property he has destroyed,
        whose country he has laid waste and desolate.
        I impeach him in the name, and by virtue, of those eternal laws of
                                       133
        justice which he has violated.
With corruption rampant at such high levels in the colonial government, “it
was only to be expected that the [East India] Company’s petty
officials . . . came to India with almost the sole objective of swiftly amassing a
fortune, which axiomatically meant taking recourse to financial


  128  See FRITZ BLACKWELL, INDIA: A GLOBAL STUDIES HANDBOOK 18 (2004).
  129  Id. at 31.
  130 DALE HOIBERG & INDU RAMCHANDANI, 2 STUDENTS’ BRITANNICA INDIA 337 (2000).
  131 Id. at 348.
  132 JOHN KEAY, INDIA: A HISTORY 446 (2001).
  133 Bruce E. Gronbeck, The Rhetoric of Political Corruption, in POLITICAL CORRUPTION: A HANDBOOK

173, 178 (Arnold J. Heidenheimer et al. eds., 1989).
818                         EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

irregularities.”134 Some have argued that since colonial governments were
labeled as illegitimate, any corruptive act against that government was
acceptable.135 Thus, corruptive practices became common fixtures in the early
Indian landscape.136
    By the end of World War II, formerly imperialistic countries had begun to
dismantle previous colonies.137 Shortly thereafter, on August 15, 1947, India
gained its independence.138 After achieving statehood, the new nation quickly
recognized that the creation of a constitution was an urgent requirement if
India was to survive.139 India’s constitution came into force on January 26,
1950.140 Instead of completely breaking with British tradition, India adopted a
federal system within the Westminster parliamentary model.141 A number of
provisions in the new constitution also “derive[d] directly from the
Government of India Act . . . almost verbatim.”142 While there were some
objections to the inclusions of the Act’s provisions, Ambedkar, the Chairman
of the Drafting Committee, insisted “on the necessity which justifies their
inclusion.”143    India’s federal constitution also includes several basic
principles: popular sovereignty, secularism, fundamental rights, directive
principles of state policy, judicial independence, federalism, and cabinet
government.144 In the Indian Constitution, the “Fundamental Rights”145


  134   CHANDAN MITRA, THE CORRUPT SOCIETY: THE CRIMINALIZATION OF INDIA FROM INDEPENDENCE TO
THE 1990S   10–11 (1998) (“The business of a servant of the Company was simply to wring out of the natives a
hundred or two hundred pounds as speedily as possible, so that he may return home before his constitution has
suffered from the heat . . . .” (quoting Lord Macaulay)). Colonial officers also promoted corruption in their
practice of exchanging favors to natives in return for expensive gifts, money, and other valuables. JAIN, supra
note 11, at 224.
   135 See JAIN, supra note 11, at 223–24 (“In colonial times, the government was carried on by the aliens,

and the citizens developed an attitude of irresponsibility and felt obliged to thwart the government in every
possible way, including cheating and other corrupt methods. The cheating of foreign devils in government
came to be admired as a patriotic virtue.”).
   136 See id. at 224.
   137 See BLACKWELL, supra note 128, at 39.
   138 M.V. PYLEE, CONSTITUTIONAL GOVERNMENT IN INDIA 3 (1st ed. 1960).
   139 Id. A constitution can be defined as “a set of laws and rules setting up the machinery of the

government of a State and which defines and determines the relations between the different institutions and
areas of government.” Id.
   140 Id.
   141 LOUIS HENKIN & ALBERT J. ROSENTHAL, CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE

UNITED STATES CONSTITUTION ABROAD 449 (1990).
   142 PYLEE, supra note 138, at 6.
   143 Id. at 7.
   144 Id. at 24.
   145 INDIA CONST. art. 13, cl. 2 (“The State shall not make any law which takes away or abridges the
2008]                         INDIA VERSUS THE UNITED NATIONS                                                 819

provide “a combination of protections for the people against the
encroachments of state authority with directives to the state to introduce
specified reforms to make those rights effective.”146
    The Indian independence movement may have ultimately usurped authority
from the British government and brought the promise of fundamental rights,
such as equality and freedom, to all Indian citizens, but it also inherited the
colonial institution of corruption. Corruptive practices that occurred at all
levels of government in British India continued into modern India.147 India’s
first prime minister, Jawaharlal Nehru, was more honest than the British
colonial government, but unfortunately he overlooked corruptive activity in his
administration and thus “legitimized it in politics.”148 Indira Gandhi, the third
prime minister of India, used corrupt practices to undermine those political
figures and movements that opposed her and to ensure her electoral victory.149
Indira, unlike Nehru, reveled in deceitful acts, and suddenly “[g]raft,
patronage, spoils, violence, booth capturing, defections, manipulation of vote
banks, double talk and false promises . . . [had] become the main props for
gaining and retaining power.”150 Thus, the institutionalization of corruption
found in India today is the product of decades of formation. Since India’s
independence, corruption scandals have engulfed chief ministers, central
ministers, Supreme Court justices, and even prime ministers.151 In fact, even
today, there is still a pending investigation by the CBI regarding a claim
against the former Prime Minister, Rajiv Gandhi, alleging that he and his
associates received a bribe of 65 million rupees in exchange for awarding a
government contract worth billions of rupees.152




rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.”).
   146 PAUL BRASS, THE POLITICS OF INDIA SINCE INDEPENDENCE 2 (2d ed. 1994).
   147 See Kumar, supra note 37, at 33.
   148 GILL, supra note 6, at 165.
   149 See 2 ENCYCLOPEDIA OF THE DEVELOPING WORLD, supra note 26, at 692 (2006). Indira Ghandi

served as Indian prime minister from 1966 to 1977 and from 1980 to 1984. Id. During her tenure, Indira was
asked to step down from power in 1975 and then sentenced to prison in 1977 and 1978; all three censures were
caused by her corruptive electoral practices. Id.
   150 GILL, supra note 6, at 166.
   151 See JAIN, supra note 11, at 229–37. Illustrative political corruptive acts include: former chief minister

of Maharashtra’s resignation after being indicted for illegally establishing numerous financial trusts in order to
elicit campaign funds; the still pending bribery case against former Prime Minister Narasimha Rao; and the
former Minister of Communication Sukh Ram’s illegal telecom contract awarding. Id.
   152 Id. at 233.
820                    EMORY INTERNATIONAL LAW REVIEW                              [Vol. 22

    Political corruption in India extends past traditional boundaries and into the
electoral process.153 As in many countries, costs of electoral campaigns are
escalating in India, and not surprisingly, once in power, officials intend to keep
their positions.154 As the amount of funding for campaigns increases, so does
the risk of corruption.155 Since 1969, Indian corporations have been prohibited
from giving money to campaigns.156 Consequently, illegal and corruptive
backing has become the major source of such funds.157 Even worse, argues
one scholar, “[w]hile politicians do raise funds to further their personal
fortunes, the bulk of the amounts garnered illicitly by them is undoubtedly
taken by the party for election purposes. In a sense, this is worse than the
corruption of an individual legislator.”158 India’s institutionalized corruption
requires comprehensive changes at all levels of government.

  2. Sources of Indian Anti-Corruption Law
    India’s history is replete with countless anti-corruption measures and
subsequent punishments. The Rig Veda, a sacred Hindu text described as “the
oldest literary monument of the Indo-European races,”159 discusses the
prevention of corruption and extortion.160 Vishnu and Manu punished people
who accepted bribes and punished corrupt government officials with property
forfeiture.161 Though British colonial rule saw its fair share of deceitful
practices, Britain still attempted to minimize such acts.162 During his tenure as
governor general, Lord Cornwallis, in contrast to Warren Hastings,
implemented policies such as increasing East India Company servants’
salaries, prohibiting such servants from receiving presents, and opening the
doors for the creation of the Indian Civil Service—all actions whose purposes
were to decrease corruption.163
    In the nineteenth century, before the collapse of colonialism in India,
Britain passed the Indian Penal Code to construct a proper legal criminal

  153   GILL, supra note 6, at 169.
  154   See id.
   155 See JAIN, supra note 11, at 231.
   156 MITRA, supra note 134, at 112.
   157 Id.
   158 Id. at 115.
   159 23 ENCYCLOPEDIA AMERICANA: A LIBRARY OF UNIVERSAL KNOWLEDGE 517 (1919). The Rig Veda

dates back as early as 1200 B.C. Id.
   160 See GILL, supra note 6, at 13.
   161 Id.
   162 See id. at 24–26.
   163 Id. at 24.
2008]                             INDIA VERSUS THE UNITED NATIONS                                                  821

system.164 By the end of the twentieth century, India, like many other large
countries, had created a number of offices promulgating anti-corruption
measures, such as the Administrative Vigilance Division in the Department of
Personnel and Training, CBI, Vigilance Units in the ministries and
departments of the government of India, disciplinary authorities, and the
CVC.165 In the past century, India’s anti-corruption institutions’ structures and
functions have undergone significant changes. The 1988 Prevention of
Corruption Act (PCA), which modified the Indian Penal Code, is the main
source for substantive anti-corruption law.166 The CVC and CBI work to
eradicate the offenses laid out in the PCA.167

        a. Indian Penal Code
    The 1860 Indian Penal Code still acts as the “main instrument for
controlling crime and administering criminal justice.”168 Though the PCA
recently replaced Articles 161 through 165A of the Indian Penal Code,169 the
definition of corruption in the 1988 Act remains essentially unchanged from
that in the earlier penal code.170 Generally, public servants commit corruptive
acts by exchanging official acts or favors for any gratification.171
   The PCA replaced the penal code’s codification of general anti-corruption
laws.172 The purpose of the PCA is “to consolidate and amend the law relating


      164
       See id. at 32.
      165
       CENTRAL VIGILANCE COMMISSION [CVC], VIGILANCE MANUAL 1 (6th ed. 2005) [hereinafter
VIGILANCE MANUAL].
  166 Prevention of Corruption Act, No. 49 of 1988 (India).
  167 See VIGILANCE MANUAL, supra note 165, at 1–10.
  168 GILL, supra note 6, at 32.
  169 Prevention of Corruption Act, No. 49 of 1988, § 31.
  170 See id. § 7. The 1988 Act states:

            Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or
            attempts to obtain from any person, for himself or for any other person, any gratification
            whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any
            official act or for showing or forbearing to show, in the exercise of his official functions, favour
            or disfavour to any person or for rendering or attempting to render any service or disservice to
            any person, with the Central Government or any State Government or Parliament or the
            Legislature of any State or with any local authority, corporation or Government company
            referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise,
            shall be punishable . . . .
Id.
      171   See id. § 7.
      172   See generally N. GUPTA, CORRUPTION IN INDIA 112–34 (2001).
822                         EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

to the prevention of corruption.”173 Under the PCA, each of five major
corruption offenses requires a prior sanction before a public official can be
charged with violating one.174 Under Section 19, the five crimes requiring a
previous sanction for prosecution are detailed in Sections 7, 10, 11, 13, and 15:
         1.    Section 7:
               Whoever, being, or expecting to be a public servant, accepts or
               obtains or agrees to accept or attempts to obtain from any person,
               for himself or for any other person, any gratification whatever,
               other than legal remuneration, as a motive or reward for doing or
               forbearing to do any official act or for showing or forbearing to
               show, in the exercise of his official functions, favour or
                                                                        175
               disfavour to any person . . . shall be punishable . . . .


         2.    Section 10:
               Whoever, being a public servant, in respect of whom either of
               the offences defined in section 8 or section 9 is committed, abets
                                                            176
               the offence . . . shall be punishable . . . .

         3.    Section 11:
               Whoever, being a public servant, accepts or obtains or agrees to
               accept or attempts to obtain for himself, or for any other person,
               any valuable thing without consideration, or for a consideration
               which he knows to be inadequate, from any person whom he
               knows to have been, or to be, or to be likely to be concerned in
               any proceeding or business transacted or about to be transacted
                                                                       177
               by such public servant . . . shall be punishable . . . .

         4.    Section 13:
               A public servant is said to commit the offence of criminal
                                  178
               misconduct . . . .



  173   Prevention of Corruption Act, No. 49 of 1988, pmbl.
  174   Id. § 19(1) (“No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and
15 alleged to have been committed by a public servant except with the previous sanction.”).
   175 Id. § 7.
   176 Id. § 10.
   177 Id. § 11.
   178 Id. § 13. A public servant commits criminal conduct:

        (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain . . . any
        gratification other than legal remuneration as a motive or reward such as is mentioned in section
        7; or
2008]                              INDIA VERSUS THE UNITED NATIONS                                                 823

              5.    Section 15:
                    Whoever attempts to commit an offence referred to in clause (c)
                    or clause (d) of sub-section (1) of section 13 shall be punishable
                         179
                    ....
The PCA’s requirement of prior government sanction in order to prosecute
certain ranks of public officials provides a level of protection for civil servants.
However, if an official is convicted on a charge that did not require a prior
sanction, the sentence will not be reversed or altered unless a “failure of
justice” has occurred.180

            b. The Central Vigilance Commission and the Central Bureau of
               Investigation
   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



            (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain . . . any valuable
            thing without consideration or for a consideration which he knows to be inadequate from any
            person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding
            or business transacted or about to be transacted by him, or having any connection with the
            official functions of himself or of any public servant to whom he is subordinate;

            (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any
            property entrusted to him or under his control as a public servant or allows any other person so to
            do; or

            (d) if he—
            (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or
            pecuniary advantage; or

             (ii) by abusing his position as a public servant, obtains for himself or for any other person any
             valuable thing or pecuniary advantage; or

             (iii) while holding office as a public servant, obtains for any person any valuable thing or
             pecuniary advantage without any public interest; or

            (e) if he or any person on his behalf, is in possession or has, at any time during the period of his
            office, been in possession for which the public servant cannot satisfactorily account, of pecuniary
            resources or property disproportionate to his known sources of income.
Id.
      179    Id. § 15.
      180    Id. at § 19(3)(a).
824                       EMORY INTERNATIONAL LAW REVIEW                                       [Vol. 22

phenomenon of daily life.”181 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.182 Initially, during the war, the SPE
dealt with cases of bribery and corruption, mostly within the War and Supply
Department of the government.183 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.184 The DSPE would later become a division of the
CBI.185
    Despite the creation of the DSPE, corruption flourished in India. The
Central Government took action and formed the Santhanam Committee,
headed by Sri K. Santhanam, to review existing corruption laws and bodies.186
The Santhanam Committee found that the DSPE was not adequately attacking
corruption and suggested the “creation of an independent high level watchdog
body.”187 The government took the advice of the Santhanam Committee, and
in 1964, the CVC was born.188 The CVC became answerable to the nation as
the force that would halt official corruption.189 While the government did
create an anti-corruption body, the government did not fulfill the Santhanam
Committee’s recommendations, as the CVC fell short of the committee’s
vision of “the apex anti-corruption body in the country with a comprehensive
mandate.”190
   To be sure, the CVC was the apex anti-corruption body because it was the
only body dedicated purely to the fight against corruption. Yet, as history
would tell, the CVC would not acquire the “comprehensive mandate”


  181   GILL, supra note 6, at 43.
  182   CENTRAL BUREAU OF INVESTIGATION, CBI MANUAL, CONSTITUTION AND ORGANIZATION OF CBI,
para. 1.2, available at http://www.cbi.gov.in/aboutus/manuals/Chapter_1.pdf (last visited Jan. 30, 2009)
[hereinafter CBI MANUAL].
   183 Id. para. 1.3.
   184 Id. paras. 1.4–1.5.
   185 Id. para. 1.6.
   186 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).
   187 Id.
   188 VIGILANCE MANUAL, supra note 165, § 1.3.1.
   189 See Government of India Res. No. 24/7/64-AVD, Feb. 11, 1964 (establishing the Central Vigilance

Commission); see also ANJALI NIRMAL, ROLE AND FUNCTIONING OF CENTRAL POLICE ORGANIZATIONS 43
(1992).
   190 Siddharth, supra note 186, at xix.
2008]                       INDIA VERSUS THE UNITED NATIONS                                           825

envisioned.191 For example, the Santhanam Committee recommended that the
body have an investigatory department for corruption charges and for hearing
allegations and complaints about the government.192 This department was
never created,193 and even today, the CBI investigates only certain offenses
under the CVC’s superintendence.194 Most importantly, the Santhanam
Committee “wanted the CVC to be the final authority for according
prosecution sanction[s] in respect of Government officials.”195             The
government did not follow this practical suggestion, and the CVC remained
powerless to prosecute corrupt officials without prior approval.196 In addition,
the premiere investigatory body in India, the CBI, remained both separate from
the CVC and under the control of the Central Government.197
    The CBI was the successor police organization to the 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
employees or offenses connected to the departments of the government.198 As
India’s economy continued to grow, there was concern that the number of
investigations needed would overwhelm the DSPE.199 In response, the
government passed Resolution No. 4/31/61-T in 1963, creating the CBI and
merging it with the DSPE.200 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 of crime, participation in the work
connected with Interpol, maintenance of crime statistics, study of specialised
crimes and coordination of laws relating to crime.”201



  191   See id. at xix–xx.
  192   Id. at xix.
  193 Id.
  194 See Central Vigilance Commission Act, No. 45 of 2003, § 26(c) (India).
  195 Siddharth, supra note 186, at xix (emphasis added).
  196 Id. at xix–xx.
  197 Government of India Res. No. 24/7/64-AVD, § 2(vi), Feb 11, 1964.
  198 NIRMAL, supra note 189, at 319.
  199 Id. at 321.
  200 Id.; see also CBI MANUAL, supra note 182, para. 1.6 (“In fact, with the establishment of CBI on 1st

April, 1963, the Delhi Special Police Establishment was made one of its Divisions, viz. ‘Investigation and
Anti-Corruption Division.’”).
  201 NIRMAL, supra note 189, at 321.
826                              EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

   The CBI retains the investigative powers of the DSPE.202 Initially, the CBI
only had the power to investigate offenses in the Union Territories.203 The
CBI’s jurisdiction extends to other states who agreed to this augmentation of
control.204 In comparison to state and local police, the CBI is arguably
superior.205    Currently there are seven divisions within the Bureau:
Investigation and Anti-Corruption (under the DSPE), Special Crimes,
Economic Offences, Directorate of Prosecution, Policy and Coordination,
Administration and Training, and Central Forensic Science Laboratory.206 The
Investigation and Anti-Corruption Division consists of the General Offences
Wing and the Economic Offences Wing.207 The General Offences Wing,
under which the DSPE operates, is responsible for investigating offenses
against public servants or claims that implicate the Central Government.208
Theoretically, this division handles the following:
               1.    The discovery of corrupt elements (both official and
                     nonofficial) requiring a close watch.
               2.    Determining the area and points where corruption exists in
                     a substantial measure, requiring a special watch,
                     institutions of surprise checks, selective security of records
                     etc. for detecting malpractices.
               3.    Exercise of effective vigilance on sensitive points where
                     such transactions occur and to lay traps.



      202   CBI MANUAL, supra note 182, para. 1.7. 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.
Id.
      203
        See Delhi Special Police Establishment Act, No. 25 of 1946, § 2 (India).
      204
        CBI MANUAL, supra note 182, para. 1.9.
  205 NIRMAL, supra note 189, at 342. According to Nirmal, the CBI is better than other police divisions for

two reasons:
            Firstly, they specialize in investigation and are not burdened with other duties like law and order;
            patrolling etc. etc. which occupy a significant portion of the time, energy and manpower of local
            police. Secondly, the number of cases handled by the C.B.I is very small as compared to the very
            large . . . number of cases investigated by local police.
Id.
      206   CBI MANUAL, supra note 182, para. 1.18.
      207   NIRMAL, supra note 189, at 326–28.
      208   Id. at 326.
2008]                      INDIA VERSUS THE UNITED NATIONS                                        827

          4. To suggest amendments to procedures so as to check and
             prevent corrupt practices.
          5. To deal with and to detect specific cases of corrupt
             practices and to collect material evidence against them by
             proper and prompt investigation and to get the concerned
             officers punished either in a court of law or in a
                                   209
             departmental enquiry.

Due to its anti-corruption obligations, the General Offences Wing is the group
within the CBI that interacts most often with the CVC and other vigilance
agencies.210
    In summary, within the international arena, there have been numerous
approaches to the battle against corruption. Originally, nations remained
content to battle corruption within their borders. Upon realizing that
corruptive practices can have a transnational impact, countries enacted new
anti-corruption laws in the form of regional conventions. The UNCAC, the
most recent development in anti-corruption law, is the first global initiative and
encompasses provisions found in prior regional conventions. Among its goals,
the UNCAC instructs states parties to create or modify existing anti-corruption
bodies in order to halt illegal activity more effectively. Similar to the
international development of anti-corruption law, Indian anti-corruption laws,
once created, did not remain stagnate. The codification of corruption offenses
began with the Indian Penal Code. Eventually, the country acknowledged that
the DSPE was not powerful enough to fight corruption in the quickly growing
state. In the later half of the twentieth century, India created the CVC and
expanded the CBI in an attempt to strengthen India’s enforcement of anti-
corruption legislation.

II. ANALYSIS: DO INDIA’S ANTI-CORRUPTION BODIES FULFILL THE UNCAC?

    While India has successfully criminalized numerous forms of corruption,
particularly the all too frequent crimes of active and passive corruption,211 the
justice and enforcement mechanisms in the country have not been able to



  209   Id. at 327.
  210   Id. at 326.
   211 Active corruption is the offering or paying of a bribe. See U.N. TOOLKIT, supra note 42, at 11.

Passive corruption is the receiving of a bribe. See id.
828                          EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

effectively punish those suspected or guilty of those crimes.212 Since
enforcement is key to the rule of law, “without adequate enforcement, any anti-
corruption program becomes a comedy of errors at best and a farce at
worst.”213 Both the Supreme Court of India and the United Nations recognize
the importance of enforcement; both entities reinforce the use of an
independent anti-corruption body or bodies in the fight against subversive
practices.214
    Independent anti-corruption bodies are an important tool in a state’s arsenal
against deceitful acts such as bribery, extortion, and money laundering.215
While the use of independent anti-corruption commissions is not exactly new,
the widespread consensus regarding their necessity is.216 In fact, modern anti-
corruption measures favor the use of independent institutional measures.217
There are various models of anti-corruption bodies, and their functions often
differ.218 While the CVC predated many contemporary anti-corruption bodies,
the Central Government stifled its authority from its creation. Prior to Vineet
Narain, section 19 of the PCA supplied one layer of protection for public
servants with the prior sanctions prerequisite.219 The executive branch of the
Indian government added another shield to public servants in the form of the
Single Directive.220

    212 Kumar, supra note 37, at 46–47 (“[T]he inherent weakness in the law enforcement machinery in India,

coupled with the lackadaisical approach of the criminal justice system has created a weak enforcement system
in regard to corruption.”).
    213 SAM JACOBSON & MARIA SLAVOVA, DEMOCRACY AGAINST CORRUPTION: A NEW WAY OF THINKING

ABOUT PUBLIC ADMINISTRATION 101 (2006).
    214 See supra notes 89–99 and accompanying text; Vineet Narain v. Union of India (1998) 1 S.C.C. 226,

228.
    215 UNODC, GLOBAL PROGRAMME AGAINST CORRUPTION: AN OUTLINE FOR ACTION, ¶ 20, U.N. Sales

No. V.99-80875 (E) (1999), available at www.uncjin.org/CICP/Corrupti_e.pdf [hereinafter OUTLINE FOR
ACTION].
    216 See Patrick Meagher, Anti-Corruption Agencies: A Review of Experience, main text at 3 (Center for

Institutional Reform and the Informal Sector, Discussion Paper No. 04/02, 2004), available at http://www.iris.
umd.edu/download.aspx?ID=ec8283a0-a6ed-4a1e-83e3-1612aa10d0a7 (“[The] history [of anti-corruption
agencies] is frequently presented as starting with the establishment of the commission in Singapore in the
1930s, . . . or even the Hong Kong bureau founded in the 1970s. In fact, a quite similar model began operations
in New York City in the 1870s.”).
    217 See OUTLINE FOR ACTION, supra note 215, ¶ 20.
    218 The main difference in national structures is the use of either a multiple-agency approach or a single-

agency approach. Patrick Meagher, Anti-corruption Agencies: Rhetoric versus Reality, 8 J. POL. REF. 69, 70–
72 (2005). A multiple-agency approach, the more common of the two systems, joins existing national
institutions with at least one, if not more, anti-corruption bodies. Id. at 70. The single-agency approach shifts
all anti-corruption functions—including investigation—into one powerful body. Id. at 71.
    219 Prevention of Corruption Act, No. 49 of 1988, § 19 (India).
    220 Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 229.
2008]                        INDIA VERSUS THE UNITED NATIONS                                               829

    Prior to the CVC Act, the latest recantation of the Single Directive came
from the Central Government in 1988.221 The Single Directive is a set of
instructions directed at the CBI restricting the agency from opening an
investigation against any official holding the rank of Joint Secretary or higher,
without the prior sanction of the Central Government.222 Thus, the Central
Government must approve an investigation of its own high-level employees
before any action can be taken. The Single Directive states that if the CBI
makes a request for an investigation and it is turned down, it may choose to
have the matter reviewed by a committee consisting of high-ranking
government officials, such as the Cabinet Secretary and the Secretary
(Personnel).223 Furthermore, the Single Directive applies not only to public
officials but also to officials at other public institutions, such as nationalized
banks.224 The Single Directive creates a large hurdle for the CBI to overcome.
The Government of India has explained the need for the Single Directive by
reasoning that the officials needed this protection in order to halt
harassment.225 Interestingly, while the CBI must receive governmental
sanction before it may initiate an investigation, state police are not required to
obtain approval from the Central Government;226 even though state police have
the capacity to begin investigations, they often do not.227

A. Vineet Narain and the Unconstitutionality of the Single Directive
    While the Indian Supreme Court declined to rule on the constitutionality of
the Single Directive in other cases, it single-handedly ended the Single
Directive’s operation in Vineet Narain v. Union of India. While the Supreme
Court did not venture to answer the question of whether the Central
Government’s repeated issuing of the Directive was to prevent harassment of
public servants or to halt officer investigations, the court concluded that the
current CBI structure’s impact on anti-corruption efforts “generated awareness
of the need of probity in public life and provided a mode of enforcement of




  221  JOGINDER SINGH, DISCOVERY OF INDEPENDENT INDIA, 205 (2003).
  222  Id. However, if the investigation application refers to a person who is or has been a Cabinet Secretary,
the CBI must receive the prior sanction from the Prime Minister. Vineet Narain (1988) 1 S.C.C. at 246.
   223 Id.
   224 Id.
   225 SINGH, supra note 221, at 206.
   226 Id. at 204.
   227 Id.
830                              EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

accountability in public life.”228 The constitutionality of the Single Directive
was the primary inquiry in Vineet Narain.229
    Narain brought his claim to court under a unique provision of Indian
constitutional law. One of the core principles of India’s Constitution is the
protection of fundamental rights and freedoms.230 The framers of the
Constitution made sure to include provisions that would ensure means for the
disenfranchised, poor, and uneducated to seek redress for wrongs.231 Article
32(1) provides: “The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is
guaranteed.”232 Basically, Article 32(1) gives the Supreme Court of India
jurisdiction over cases involving fundamental rights.233 The judiciary also
lowered standing rules and held that where there is a legal wrong or legal
injury, any citizen can bring a claim on behalf of the injured party.234
Recently, litigants have taken advantage of the Indian Constitution’s
framework of public interest litigation for actions involving corruption.235
    Initially, Narain’s claim seemed like “yet another complaint of inertia by
the [CBI] in matters where the accusation made was against high
dignitaries.”236 The initial scandal that prompted the subsequent “inertia”
started with the arrest of a Kashmiri terrorist in 1991, which was investigated


      228
        Vineet Narain (1998) 1 S.C.C. at 233–34.
      229
        See id. at 238.
    230 See supra note 145 and accompanying text.
    231 Kumar, supra note 37, at 48–49.
    232 INDIA CONST. art. 32, cl. 1.
    233 Kumar, supra note 37, at 48 (“This has resulted in the judiciary taking an active role on matters that

affect good governance in India. In fact, the essential task of enforcing fundamental rights has been assigned
to the Supreme Court of India and the High Courts.”).
    234 S.P. Gupta v. Union of India (1982) 2 S.C.R. 365, 377. The court stated:

            Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by
            reason of violation of any constitutional or legal right or any burden is imposed in contravention
            of any constitutional or legal provision or without authority of law or any such legal wrong or
            legal injury or illegal burden is threatened and such person or determinate class of persons is by
            reason of poverty[,] helplessness or disability or socially or economically disadvantaged position,
            unable to approach the court for relief[,] any member of the public can maintain an application
            for an appropriate direction, order or writ in the High Court under Article 226 and in case of
            breach of any fundamental right of such person or determinate class of persons, in this Court
            under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or
            determinate class of persons.
Id.
      235   See Kumar, supra note 37, at 49.
      236   Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 233.
2008]                        INDIA VERSUS THE UNITED NATIONS                                             831

by the CBI.237 The investigation resulted in a raid that uncovered two diaries
and two notebooks that were later revealed to be payment entries.238 The
notebooks and diaries also contained the names of numerous top politicians
and government ministers who had received illegal payments.239 Based on this
information, the Indian people alleged that politicians, including the then
Prime Minister Rao and cabinet colleagues, had received $18 million in black
market money from businessmen, including N.K. Jain and his brothers.240
After the CBI’s discovery, the documents were shelved away, and “[t]here
seemed to be a determined attempt by the CBI to forget the existence of these
diaries.”241
    When the CBI finally filed a charge sheet in March 1992, it only named
Kashmiri militants as parties.242 But the diaries did not stay a secret; one
journalist with the newspaper Jansatta obtained a photocopy of the diaries.243
The paper then published a story revealing the names of the 115 people who
had been recipients of Jain’s hawala money.244 The CBI still did not take
action.245 Not until Narain, a journalist, filed a public interest litigation claim
with the Supreme Court on October 4, 1993,246 did there appear “a distinct
possibility that top politicians and bureaucrats would finally be made
accountable for their alleged criminal activities.”247 The general allegations in
Narain’s writ petitions accused government agencies, and the CBI in
particular, of failing to perform their duties.248 In this specific case, the CBI


  237    GILL, supra note 6, at 105–06.
  238    Id. at 107.
   239 Id.
   240 JAIN, supra note 11, at 236–37. Eventually, statements given to the CBI exposed payments to over 50

politicians, including “R. Venkataranman, president of India, prime ministers Rajiv Gandhi and P.V.
Narasimha Rao, a couple of governors, nine chief ministers, thirty Union ministers, and several other leaders
of standing.” GILL, supra note 6, at 108. Ultimately, “three Central ministers resigned and Advani [President
of the Bharatiya Janata Party] relinquished his seat in the Lok Sabha [the lower house of the Indian
Parliament]. Later, Congress leaders like R.K. Dhawan, Kamal Nath and Bhajan Lal were also [charged].” Id.
   241 GILL, supra note 6, at 107.
   242 Id.
   243 Id.
   244 Id. Hawala is a “private banking system for transferring money from one country to another.” Id. at

105. In this system, “deals are made by word of mouth . . . . If an Indian wants to send his black wealth
abroad, he hands over the sum to a local hawala operator who gives him a code which his foreign contact uses
to collect the money from another hawala dealer at the other end.” Id.
   245 Id.
   246 See Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 235; see also Vineet Narain—The Crusader,

http://www.vineetnarain.net/html/the_crusader.htm (last visited Jan. 30, 2009).
   247 B.R. LALL, WHO OWNS CBI: THE NAKED TRUTH 11–12 (2007)
   248 Vineet Narain (1998) 1 S.C.C. at 235.
832                              EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

did not perform any follow-up investigation after finding the incriminating
diaries and notebooks.249 As relief, Narain sought an investigation into the
Jain hawala scandal.250 He also sought a permanent remedy to the CBI’s
inaction and what he labeled the “evil actions on the part of the investigating
agencies and their political superiors.”251
    The Supreme Court began its December 18, 1997 opinion by explaining
that this case had revealed “the need for the insulation of these agencies from
any extraneous influence to ensure the continuance of the good work they have
commenced.”252 The Supreme Court sided against a former CBI Director, who
described the Single Directive as “instrumental in making the country’s
premier investigative agency pliable in the hands of the powers that be.”253
Furthermore, the court found that in failing to perform its investigatory
obligations, the CBI had placed individuals above the law.254 In order to
remedy the ailments in the agency’s structures, the court held that the CVC
should be given statutory status,255 the superintendence of the CBI should be
transferred from the Central Government to the CVC, and it should be the
CVC that receives the CBI’s reports, investigations, cases, and charge


      249   Id. The CBI had
            disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money
            from unlawful sources, given for unlawful consideration; that the CBI and other government
            agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all
            persons who were found to have committed an offence; that this was done with a view to protect
            the persons involved, who were very influential and powerful; that the matter disclosed a nexus
            between crime and corruption at high places in public life and it posed a serious threat to the
            integrity, security and economy of the nation.
Id.
      250   Id. at 235–36. Narain requested:
            (a) that the abovesaid offences disclosed by the facts mentioned in the petition be directed to be
            investigated in accordance with the law; (b) that this Hon’ble Court may be pleased to appoint
            officers of the police or others in whose integrity, independence[,] and competence this Hon’ble
            Court has confidence for conducting and/or supervising the said investigation; c) that suitable
            directions be given by this Hon’ble Court and orders issued to ensure that the culprits are dealt
            with according to law.
Id.
   251 Id. at 236. Narain sought “that directions be given so that such evil actions on the part of the

investigating agencies and their political superiors are not repeated in future.” Id.
   252 Id. at 234.
   253 JOGINDER SINGH, INSIDE CBI 163 (1999).
   254 Vineet Narain (1998) 1 S.C.C. at 237. To rectify this, the Supreme Court ordered the CBI to

commence investigations as the case was being heard. Id.
   255 Id. at 269.
2008]                         INDIA VERSUS THE UNITED NATIONS                                               833

sheets.256 The Supreme Court provided in great detail other recommended
changes to the CVC’s and CBI’s structures.257
    Most importantly, the court struck down the government-issued Single
Directive.258 When it analyzed the constitutionality of the Single Directive, the
court agreed that under current law, section 3 of the DSPE Act gave the
Central Government the right to specify which class of crimes could be
investigated.259 However, the court departed from prior practice by opposing
the Central Government’s definition of “superintendence” with regard to its
authority over the CBI.260 The court ruled that the Central Government’s
power to specify offenses was separate from the authority to control an
investigation of a specific crime.261 Once the CBI met the jurisdictional
requirements of section 3 by pursuing a government sanctioned crime, the
Central Government could not halt or control the investigation of offenses.262
The court concluded that the “broad proposition urged on behalf of the Union
of India that it can issue any directive to the CBI to curtail or inhibit . . . cannot
be accepted.”263
    In addition to interpreting the language of the DSPE Act, the court also
used a policy rationale to justify its findings. The court analyzed whether
certain charges should be treated differently from others. The court first
examined corruption charges based on direct evidence and decided that “there
[was] no rational basis to classify them differently . . . . [I]t [was] obvious that
no other factor is relevant and the level or status of the offender [was]
irrelevant.”264 The court also found that in cases of indirect evidence, the CBI
should have the final authority to decide whether an investigation should be

   256  Id.
   257  Id.
   258 Id. at 264. The court also instructed the CVC to “review the progress of all cases moved by the CBI

for sanction of prosecution of public servants which are pending with the competent authorities, specially [sic]
those in which sanction has been delayed or refused.” Id. at 269.
   259 Id. at 261 (“It is, therefore, the notification made by the Central Government under Section 3 which

confers and determines the jurisdiction of the CBI to investigate an offence.”).
   260 Vineet Narain (1998) 1 S.C.C. at 261. The Delhi Special Police Establishment Act provides: “The

superintendence of the [Delhi Special Police Establishment] shall vest in the Central Government.” Delhi
Special Police Establishment Act, No. 25 of 1946, § 4(1) (India).
   261 Vineet Narain (1998) 1 S.C.C. at 261.
   262 Id. at 262 (“Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of

notification under Section 3 of the Act, the powers of investigation are governed by the statuary provisions and
they cannot be estopped or curtailed by an executive instruction issued under Section 4(1) thereof.”).
   263 Id. at 261.
   264 Id. at 263 (“The question now is only with regard to cases other than those of bribery, including trap

cases, and of possession of disproportionate assets being covered by the Single Directive.”).
834                              EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

opened.265 On the whole, the court found that the requirement of prior
sanctions to initiate an investigation against a high ranking public official
created another class of Indians, a reality that clashed with the Indian ethos of
equality: “Be you ever so high, the law is above you.” 266
    Article 14 of the constitution promises equality before the law and, as the
court explained, “[t]he right to equality in a situation like this is that of the
Indian polity and not merely of a few individuals.”267 One way to guarantee
equal treatment is to assure society that the law treats people accused of the
same crimes identically. Since the Single Directive treated one class of public
citizens differently, it violated Indians’ fundamental rights.268
    The powers of the Supreme Court under Articles 141 and 142 of the
constitution provide that rulings of the highest court are “binding on all courts
within the territory of India,”269 and that “any decree so passed or order so
made shall be enforceable throughout the territory of India.”270 The court was
comfortable issuing its sweeping decrees because it had become “necessary to
take measures to ensure permanency in the remedial effect to prevent reversion
to inertia of the agencies in such matters.”271 The court also added that its
directions were necessary “to fill the vacuum till such time the legislature steps
in to cover the gap or the executive discharges its role.”272 The court was
probably shocked to find the parliament nullify its judgment so quickly.




      265   Id.
      266   Id. at 235.
      267   Id. at 264.
      268   See id.
      269   INDIA CONST. art. 141.
      270   Id. art 142. Article 142 states:
            (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
            order as is necessary for doing complete justice in any cause or matter pending before it, and any
            decree so passed or order so made shall be enforceable throughout the territory of India in such
            manner as may be prescribed by or under any law made by Parliament and, until provision in that
            behalf is so made, in such manner as the President may by order prescribe.
            (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
            shall, as respects the whole of the territory of India, have all and every power to make any order
            for the purpose of securing the attendance of any person, the discovery or production of any
            documents, or the investigation or punishment of any contempt of itself.
Id.
      271   Vineet Narain (1998) 1 S.C.C. at 243.
      272   Id. at 264.
2008]                       INDIA VERSUS THE UNITED NATIONS                                            835

   The Central Government established the CVC amidst a time of rampant
corruption.273 With good intentions, the government also increased the powers
of the CBI and its role working alongside the CVC in anti-corruption
matters.274 However, the government’s continual application of the Single
Directive resulted in the hindrance of the two main watchdog and enforcement
bodies in the land.

B. CVC Act and the Return of the Single Directive
    Pursuant to the judgment in Vineet Narain, the Central Government, and
later the Parliament, awarded the CVC statutory status initially through the
1998 Central Vigilance Commission Ordinance (Ordinance),275 and then
through the CVC Act.276 The CVC Act vested the CVC with superintendence
over vigilance matters, anti-corruption measures, and at times, CBI’s
practices.277 Structurally, the CVC has a Central Vigilance Commissioner and
a maximum of two Vigilance Commissioners who are appointed by the
President for a term of four years.278 The CVC’s primary role is vigilance
superintendence.279 The CVC can receive complaints against officials working
for organizations over which the CVC has jurisdiction, including the Central
Government ministries and departments, Central Government public sector
undertakings, nationalized banks, insurance companies, autonomous
organizations, and centrally administered territories.280 However, even within
these particular groups, the CVC can only inquire or instigate an inquiry
against a certain level of public servant.281 Furthermore, section (8)(h) of the
CVC Act stipulates that the CVC cannot act in a way “not consistent with the
directions relating to vigilance matters issued by the Government.”282 Despite
granting statutory status to the CVC, the Central Government hardly
established the “apex” anti-corruption body envisioned by the Santhanam

   273 See CVC, ANNUAL REPORT 2006, at 1 (2007), available at http://www.cvc.nic.in/ar2006.pdf

[hereinafter CVC ANNUAL REPORT 2006]. The CVC was created as a result of the Santhanam Committee. Id.
The Committee was formed to review the “growing menace of corruption in administration.” Id.
   274 See supra notes 198–210 and accompanying text.
   275 Central Vigilance Commission Ordinance, No. 15 of 1998 (India).
   276 Central Vigilance Commission Act, No. 45 of 2003 (India).
   277 Government of India, The Central Vigilance Committee, Complaint Handling Policy, para. 2,

www.cvc.nic.in (follow “Complaint Policy” hyperlink under “Grievance Section”) (last visited Jan. 30, 2009)
[hereinafter Complaint Handling Policy].
   278 VIGILANCE MANUAL, supra note 165, § 1.3.2.
   279 Complaint Handling Policy, supra note 277, para. 2.
   280 Id. para. 5.
   281 Id. para. 6.
   282 Central Vigilance Commission Act, No. 45 of 2003, § 8(h) (India).
836                         EMORY INTERNATIONAL LAW REVIEW                                           [Vol. 22

Committee; instead, the Government has set up an institution limited in its
vigilance practices.
    The highest anti-corruption body in India, the CVC does not satisfy Article
6 of the UNCAC because it is unable to effectively implement anti-corruption
policies. The CVC does not have its own investigatory department; it can only
instruct its sister investigatory body, the CBI, to initiate investigations. Nor
can the CVC commence prosecution against wrongful actors.283 When the
Indian government passed the CVC Act, it sacrificed a powerful anti-
corruption body with an independent investigatory body for broad immunity
for its high level civil servants. Without an independent investigatory body
assisting the CVC in identifying and providing evidence to prosecute corrupt
officials, the Commission loses all legitimacy.
    While the CBI is the “premier investigating agency” in India,284 the
organization is still crippled by its subservience to the Central Government.
Although the Indian populace embraced the Supreme Court’s holding in Vineet
Narain, the joy faded when the CVC Act extinguished the spirit of the
judgment.285 The CVC Act clashes greatly with the Supreme Court’s
recommendations in Vineet Narain; it codifies the once maligned Single
Directive and again shields high public servants.286 Section 26(c) of the CVC
Act resurrects the Single Directive by inserting into the DSPE Act a new
section, which reads: “The [DSPE] shall not conduct any inquiry or
investigation into any offence alleged to have been committed under the


  283   VIGILANCE MANUAL, supra note 165, § 1.3.3.
  284   NIRMAL, supra note 189, at 347.
   285 See V. Eshwar Anand, Editorial, Directive is Undemocratic: Top Bureaucrats Not Above Rule of Law,

THE TRIBUNE, Feb. 21, 2005, available at http://www.tribuneindia.com/2005/20050221/edit.htm#4; Anil
Nauriya, Editorial, Mischief of the Single Directive, TRIBUNE (Chandigarh, India), Aug. 18, 2003,
http://www.tribuneindia.com/2003/20030818/edit.htm#5; Joginder Singh, Editorial, Drawbacks in the CVC
Bill: Classifying Offenders on Ranks Antithesis of Equality, TRIBUNE (Chandigarh, India), Aug. 27, 2003,
http://www.tribuneindia.com/2003/20030827/edit.htm#5; With Govt’s Single Directive, Law No Longer Above
All, TIMES OF INDIA, Feb. 14, 2005, http://timesofindia.indiatimes.com/India/With_govts_single_directive_
law_no_longer_above_all/articleshow/msid-1019946,curpg-1.cms. The Indian Parliament was able to
override the Vineet Narain judgment because of Article 142 in the Indian Constitution, which provides:
        The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as
        is necessary for doing complete justice in any cause or matter pending before it, and any decree
        so passed or order so made shall be enforceable throughout the territory of India in such manner
        as may be prescribed by or under any law made by Parliament and, until provision in that behalf
        is so made, in such manner as the President may by order prescribe.
INDIA CONST. art. 142, cl. 1.
   286 See Central Vigilance Commission Act, No. 45 of 2003, § 26(c).
2008]                        INDIA VERSUS THE UNITED NATIONS                                             837

Prevention of Corruption Act, 1988 [49 of 1988] except with the previous
approval of the Central Government.”287 The CVC’s legislative mandate
regarding the Single Directive not only contradicts the Vineet Narain judgment
but also strays from the initial government response to Vineet Narain, the 1998
Ordinance.288 While the Ordinance had not given the authority of independent
investigation to the CBI, it placed the discretion of prior sanction in the CVC’s
hands.289 If the CVC Act had copied the design of the Ordinance and allocated
sanctioning powers to the CVC, it would have acquired the proper
independence to fulfill its anti-corruption functions. And though not perfect,
by taking the power of sanction out of the hands of the Central Government
and placing it with an anti-corruption body, the CBI arguably stepped closer to
achieving the UNCAC Article 36 requirement of independent law enforcement
authorities; an anti-corruption body is probably more likely to permit
investigations into officials than the Central Government, where such officials
are employed.
    Furthermore, the practice of the Single Directive in corruption
investigations contradicts Article 30 of UNCAC. Article 30 requires a state
party to balance the immunities and privileges awarded to public officials
against the necessity of investigation of such individuals.290 It is clear from
Vineet Narain that the Single Directive’s use results in an ineffective CBI and
anti-corruption effort. The Central Government’s sole discretionary power
over investigations of public officials, without any clear guidelines on
requisites for sanctions,291 demonstrates the state’s denial of the UNCAC
Article 30 balancing test. Beyond squashing the direct orders of Vineet
Narain, the CVC Act also ignores the spirit of equality found in the Supreme
Court’s judgment and Article 14 of the Indian Constitution. The return of the
Single Directive restores differential treatment among certain classes of people
for the same alleged offenses.




  287   Id. (emphasis added).
  288   VIGILANCE MANUAL, supra note 165, § 1.3.1.
   289 Central Vigilance Commission Ordinance, No. 15 of 1998, § 8 (India).
   290 UNCAC, supra note 1, art. 30(2).
   291 Section 6A of the Delhi Special Police Establishment Act only states the requirement of prior sanction

for high level public officials. Delhi Special Police Establishment Act, No. 25 of 1946, § 6A (India) (as
amended by the Central Vigilance Commission Act, No. 45 of 2003, § 26(c)). It does not provide any details
of factors that increase the grant of authority.
838                         EMORY INTERNATIONAL LAW REVIEW                                           [Vol. 22

    The Act also departed from the Supreme Court’s decision to grant the CVC
superintendence over the CBI by giving the CVC supervisory power only over
cases falling under the Prevention of Corruption Act, leaving all other cases
under the authority of the Central Government.292 The Supreme Court felt that
the CBI’s current work was inadequate and prone to apathy, holding that
switching superintendence from the Central Government to the CVC would
bring legitimacy to the CBI.293 While the Supreme Court advocated for an
increased level of confidence for India’s anti-corruption bodies, the CVC Act
caused the reverse effect. A recent commentator reflecting on the CVC Act
pointed out: “At present, the CBI seems unable to act as an independent
body.”294 Speaking about the Single Directive and section 26 of the CVC Bill,
Joginder Singh, former director of the CBI, wrote: “The Single Directive was
held violative of the fundamental right to equality in 1997. It cannot become
legal in 2003 . . . .”295
    The CVC Act respects the court’s order concerning the limited meaning of
superintendence with regard to the CVC’s authority over the CBI.296 Section
(8)(1)(b) of the CVC Act states that the Commission is not allowed to
“investigate or dispose of any case in a particular manner.”297 Furthermore,
the Vineet Narain judgment ordered that the selection of the Central Vigilance
Commissioner be made by a committee comprised of the “Prime Minister,
Home Minister and the Leader of the Opposition from a panel of outstanding
civil servants and others with impeccable integrity, to be furnished by the
Cabinet Secretary.”298       The CVC Act removes the qualification of
“outstanding” and “impeccable integrity” and instead concludes that prior civil
service experience, or experience in a government-owned or government-
controlled corporation, is sufficient.299



   292 Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 269 (“The CBI shall report to the CVC about

cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed and
their progress.”).
   293 Id. (“While Government shall remain answerable for the CBI’s functioning, to introduce visible

objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted
with the responsibility of superintendence over the CBI’s functioning.”).
   294 Anand, supra note 285.
   295 Singh, supra note 285.
   296 However, the Supreme Court found that the term “superintendence” did not extend to “the initiation

and the actual process of investigation, i.e., direction.” Vineet Narain (1998) 1 S.C.C. at 261.
   297 Central Vigilance Commission Act, No. 45 of 2003, § 8(1)(b) (India).
   298 Vineet Narain (1998) 1 S.C.C. at 269.
   299 Central Vigilance Commission Act, No. 45 of 2003, § 3(3).
2008]                       INDIA VERSUS THE UNITED NATIONS                                            839

    To summarize, in Vineet Narain, the Supreme Court attempted to articulate
its notion of the appropriate means of achieving good governance in India.
Rather than heed the court’s judgment, the Central Government denied India
the powerful anti-corruption bodies it needs. The reinstatement of the Single
Directive, even though it was declared unconstitutional, placed the CVC and
the CBI at odds with UNCAC provisions and the Indian Constitution. By
requiring prior sanctions to begin investigations into allegedly corrupt officials,
anti-corruption bodies in India are not independent and cannot be effective.

C. Validity of Section 6A of the DSPE Act
    The CBI and the CVC face an entrenched enemy—corruption—and are
hardly equipped for the battle. During a 2002 panel discussion of the issue of
the Single Directive, Shri N. Vittal, Central Vigilance Commissioner at the
time, advocated the elimination of the Single Directive, stating: “The rationale
of the Supreme Court Judgement for holding the Single Directive as
unconstitutional is very strong.”300 During the same speech, Vittal made a
prophetic statement in regard to the reintroduction of the Single Directive:
“there is every possibility that it will be struck down by the Supreme Court if it
is approached through a public interest litigation.”301 Subramanian Swamy v.
Director, CBI (Swamy),302 a case currently before the Indian Supreme Court, is
testing Vittal’s statement and may result in the Single Directive being declared
unconstitutional once again.
    Swamy’s suit challenged the constitutional validity of the newly added
section 6A of the DSPE Act.303 The Supreme Court in its February 2, 2005
judgment reexamined its decision in Vineet Narain. The court explained that
soon after the Vineet Narain judgment, the Central Government sought to




  300   Shri N. Vittal, Central Vigilance Commissioner, Talk delivered at the Panel Discussion organised by
Delhi Administration Officers’ Academic Forum: Corruption in Higher Civil Service and C.B.I.—Issue of
Single Directive, para. 5 (Apr. 27, 2002).
   301 Id. para. 10.
   302 Subramanian Swamy v. Director, CBI (Swamy) (2005) 2 S.C.C. 317 (referred to larger bench on Feb.

4, 2005).
   303 Id. at 319. As mentioned, section 6A resurrects the requirement of a previous government sanction to

begin a CBI investigation into crimes falling under the 1988 Prevention of Corruption Act. Delhi Special
Police Establishment Act, No. 25 of 1946, § 6A (India) (as amended by the Central Vigilance Commission
Act, No. 45 of 2003, § 26(c)).
840                        EMORY INTERNATIONAL LAW REVIEW                                          [Vol. 22

reintroduce the Single Directive in the CVC Ordinance, but the court, for a
second time, halted the prior sanction application.304
    In Vineet Narain, the court performed a detailed examination of the DSPE
Act to find support for its primary objection to the Single Directive.305 The
court found that the Central Government’s superintendence power, as defined
in the DSPE Act, did not entitle it to control the CBI’s investigations.306 In
Vineet Narain, the court found that the Central Government did not stretch the
definition of superintendence because the Central Government no longer had
sole superintendence powers over the CBI.307 As a result, this time the court
could not strike down the Single Directive as an illegal extension of the
government’s superintendence powers. Rather than attacking the language of
the CVC Act, Swamy argued that section 6A of the DSPE Act violates Article
14 of the Constitution.308 Section 6A contradicts equality before the law
because the new provision creates two classes of people: high public officials
that are protected from investigations and everyone else who is not granted
such privileges.309 Swamy also asserted that the Vineet Narain decision
“frames structures by which honest officers could fearlessly enforce the
criminal law and detect corruption uninfluenced by extraneous political,
bureaucratic, or other influences.”310
    Unfortunately, in Swamy, the Supreme Court did not clearly determine the
constitutionality of the Single Directive. Rather than look at the assertion of a
violation of a fundamental right, the court decided to refer the case to a larger
bench.311 Swamy’s argument that Section 6A is “wholly irrational and
arbitrary to protect highly placed public servants from inquiry or investigating
in the light of the conditions prevailing in the country and the corruption at
high places” conflicted with the Central Government’s position that mere
arbitrariness is not enough to strike down legislation.312 The Central
Government argued that in order to strike down legislation, a law must display

   304 Swamy (2005) 2 S.C.C. at 319–20. The Supreme Court remarks that “from the date of the decision in

Vineet Narain’s case and till insertion of Section 6-A w.e.f. 12th September, 2003, there was no requirement
of seeking previous approval except for a period of two months from 25th August to 27th October, 1998.” Id.
   305 See Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 260–69.
   306 Id. at 269.
   307 Id.; see Central Vigilance Commission Act, No. 45 of 2003 § 26.
   308 Swamy (2005) 2 S.C.C. at 319.
   309 Delhi Special Police Establishment Act, No. 25 of 1946, § 6A (India) (as amended by the Central

Vigilance Commission Act, No. 45 of 2003, § 26(c)).
   310 Swamy (2005) 2 S.C.C. at 319.
   311 Id. at 321.
   312 Id. at 320.
2008]                       INDIA VERSUS THE UNITED NATIONS                                          841

“manifest arbitrariness.”313 The Supreme Court posed to the larger bench the
primary issue in Swamy as “whether arbitrariness and unreasonable or manifest
arbitrariness and unreasonable, being facts of Article 14 of the Constitution of
India are available or not as grounds to invalidate a legislation.”314
    To predict how a larger Supreme Court bench will rule on the level of
arbitrariness required to overturn legislation, case law addressing Article 14
claims must be examined. Throughout the cases dealing with Article 14
claims, two trends appear. On one level is the traditional application of Article
14 and its prohibition of blatant discrimination.315 On a second level, is a
broader construction of Article 14 guaranteeing remedies against arbitrary or
unreasonable state action.316 Concerning the first trend, originally courts read
Article 14 narrowly.317 To violate Article 14, government actions had to be
discriminatory.318 Discrimination occurred when a government’s classification
of persons or things did not rationally relate to the purpose of the legislation.319
Reflecting on this traditional treatment of Article 14, the court in Swamy
incorrectly decided that it needed to consider the issue of arbitrariness. Section
6A of the DSPE Act is discriminatory state action because its classification of
public servants does not rationally relate to the purpose of the DSPE Act. The
purpose of the DSPE Act was “to make provision for the constitution of a
special police force . . . in regard to the investigation of the said offenses.”320
Section 6A creates a classification system of public servants and dictates which
category can be investigated without prior government approval. The prior
sanction requirement is not related and does not further the purpose of the
DSPE Act to fight corruption. In Swamy, the court should have ruled that the
DSPE’s classification of public servants does not rationally relate to the Act
that centers on the CBI’s functioning and structure.




  313   Id. at 321.
  314   Id.
   315 P.N. Bhagwati, Liberty and Security of the Person in India, with Particular Emphasis on Access to

Courts, in 7 DEVELOPING HUMAN RIGHTS JURISPRUDENCE: SEVENTH JUDICIAL COLLOQUIUM ON THE
DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS 203, 209 (1999).
   316 See, e.g., E.P. Royappa v. State of Tamil Nadu (1974) 4 S.C.C. 3, 38 (Bhagwati, J., concurring).
   317 See, e.g., id.
   318 Id.
   319 Id.
   320 Delhi Special Police Establishment Act, No. 25 of 1946, pmbl. (India). The said offenses are those

found in the 1988 Prevention of Corruption Act. See id.
842                           EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

    Since the court did not resolve Swamy with a discussion of discrimination,
it is necessary to examine the second understanding of Article 14 rights:
guarantees against arbitrary government action. In 1974, in E.P. Royappa v.
State of Tamil Nadu, the Supreme Court extended Article 14’s guarantees and
began the still ongoing discussion of the role of arbitrariness and government
action.321 While E.P. Royappa dealt with the review of executive or
administrative action, rather than of legislative action as in Swamy, the court
spoke generally about Article 14 and the spirit of equality, writing, “Where an
act is arbitrary it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Art. 14.”322 In E.P.
Royappa, the court’s examination of arbitrariness also took into account the
government’s reasons for the act in question: “State action must be based on
valid relevant principles applicable alike to all similarly situate [sic] and it
must not be guided by any extraneous or irrelevant considerations because that
would be denial of equality.”323
    Since this initial broadening of Article 14, the court left parties to speculate
as to what denotes “arbitrary” and what level of arbitrariness is required to
overturn legislation.324 In Swamy, the respondents relied on State of Andhra
Pradesh v. McDowell & Co., where the court, looking at the arbitrariness of
the 1995 Andhra Pradesh Prohibition Act concluded that courts could not
rescind acts of government “by just saying that it is arbitrary or unreasonable.
Some or other other constitutional infirmity has to be found before invalidating
an Act.”325 Later decisions often cite this holding, even in direct review of
Article 14 offenses; however, they apply this reasoning incorrectly. The court
in McDowell actually wrote, “if an enactment is challenged as violative of
Article 14, it can be struck down only if it is found that it is violative of the


   321   E.P. Royappa v. State of Tamil Nadu (1974) 4 S.C.C. 3, 38 (Bhagwati, J., concurring).
   322   Id. (“In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic
while the other, to the whim and caprice of an absolute monarch.”).
   323 Id.
   324 The Supreme Court stated that unlike in Great Britain, where acts of Parliament cannot be attacked,

India is
         similar to the United States of America. The power of the Parliament or for that matter, the State
         Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be
         struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative
         competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the
         constitution or of any other constitutional provision. There is no third ground.
State of Andhra Pradesh v. McDowell & Co. (1996) 3 S.C.R. 721, 752.
   325 Id. at 752.
2008]                         INDIA VERSUS THE UNITED NATIONS                                         843

equality clause/equal protection clause.”326 The court then discussed violations
of Article 19 of the Indian Constitution and stated, in this case, that merely
stating arbitrariness and unreasonableness would not be lethal to legislation.
Courts overgeneralize McDowell by reasoning that another factor in addition to
arbitrariness is needed for both Article 14 and Article 19 challenges.
    This overgeneralization becomes clearer upon evaluation of State of Tamil
Nadu v. Ananthi Ammal, a case decided at close to the same time as McDowell.
In Ananthi Ammal, the Supreme Court reviewed an Article 14 challenge and
held: “When a statute is impugned under Article 14 what the court has to
decide is whether the statute is so arbitrary or unreasonable that it must be
struck down.”327 The Supreme Court’s decision does not state that a successful
Article 14 claim must have an additional “constitutional infirmity.”
    To incorporate its previous ruling that arbitrariness can overturn
government actions and to attempt to explain what the term arbitrary means,
the Supreme Court found in McDowell that the use of the term “arbitrary” in
Ananthi Ammal was really meant to identify the discriminatory nature of the
Central Government act at issue, not its unreasonableness.328 Using the court’s
reasoning, if an act is discriminatory, it is not only likely to be found arbitrary,
but also invalid.329 Applying this line of reasoning to section 6A’s
classification of public servants, the court should likely find that this provision
of the DSPE Act is both arbitrary and discriminatory and thus invalid.
    However, a larger court panel may decide to sidestep the entire Swamy
discussion of what level of arbitrariness is required to strike down legislation.
Though McDowell highlights this arbitrariness debate and perhaps makes the
issue even more ambiguous, the next Swamy court could follow the more
recent Supreme Court case, Mardia Chemicals Ltd. v. Union of India.330 The
court in Mardia held that a section of the 2002 Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act
was unreasonable and arbitrary and thus violated Article 14.331 The court
made no mention of a particular level needed to overturn legislation, rendering



  326   Id.
  327   State of Tamil Nadu v. Ananthi Ammal (1995) 1 S.C.C. 519, 526.
  328   State of Andhra Pradesh v. McDowell (1996) 3 S.C.R. 721, 753–54.
  329   See id. at 754 (“[A]n Act which is discriminatory is liable to be labelled as arbitrary.”).
  330   Mardia Chemicals Ltd. v. Union of India (2004) 3 S.C.R. 982.
  331   Id. at 1037.
844                        EMORY INTERNATIONAL LAW REVIEW                      [Vol. 22

the Swamy debate on the issue irrelevant. The court noted that there is a
presumption of validity for enactments because hopefully, the legislature
understands the desires of its citizens;332 yet, it is still necessary for people to
“get a fair deal at the hands of those who have been vested with the powers.”333
    Also relevant in Mardia, the court considered the role of public interest in
defining Article 14 rights. The court opined that “wherever public interest to
such a large extent is involved and it may become necessary to achieve an
object which serves the public purposes, individual rights may have to give
way.”334 The high public interest connected to the fight against corruption
could quash any individual public servant’s rights to be free from unsanctioned
investigation. The next Swamy court can choose one of three paths for its next
decision. First, it can apply Article 14 guarantees in a traditional manner,
focusing on blatant discrimination. Second, the Supreme Court can use
Ananthi Ammal and examine the level of arbitrariness of section 6A and
whether it rises to discrimination. Or third, the Supreme Court can forego the
argument concerning the level of arbitrariness required to overturn legislation.
Whichever course the Supreme Court chooses, section 6A is doomed because
the creation of two classes of people can never be construed as compliance
with equality before the law.

D. Constructing New Anti-Corruption Institutions
    One commentator writes that because “the CBI or the CVC cannot possibly
help tackle the [corrupt practices], the country needs a more effective curative
mechanism. . . . It would be eminently sensible if an independent and
autonomous body is set up to try cases against politicians and bureaucrats.”335
While India’s past anti-corruption legislation sought to modify existing
legislation by inserting and deleting provisions, it is wiser to overhaul the
current institutions. The existing CVC and CBI are inadequate to fight
corruption. Fortunately many sources offer suggestions to build stronger anti-
corruption commissions.336 One such source, the United Nations Office on
Drugs and Crime (UNODC), created a model draft bill that outlines possible




  332   Id. at 1033.
  333   Id. at 1035.
  334   Id. at 1029.
  335   Anand, supra note 285.
  336   See U.N. TOOLKIT, supra note 42; OUTLINE FOR ACTION, supra note 215.
2008]                        INDIA VERSUS THE UNITED NATIONS                                            845

legislative forms for all the UNCAC articles.337 In particular, the model draft
notes that in order to be in compliance with UNCAC Article 6, an anti-
corruption commission should be in charge of “coordinating and monitoring
the activities of other anti-corruption bodies.”338 The UNODC notes the
importance of a national anti-corruption investigative unit and also lays out in
great detail the possible responsibilities of such a body.339

   1. The CVC
    If properly altered, the CVC Act could create the independent anti-
corruption commission the UNCAC requires. The CVC Act’s structure of the
CVC does not conflict with the UNODC proposals. For example, the UNODC
instructs that the commission should be directed and composed of judiciary
members, civil servants, and “any other duly qualified persons.”340 The CVC
Act allows for commissioners to be selected from civil servants and “persons
who have expertise and experience in finance including insurance and banking,
law, vigilance and investigations.”341
    Though not required by the UNCAC, diversifying the committee that
approves the President’s appointment of CVC members would increase the
impartiality of the CVC. Currently, the CVC Act committee consists of three
individuals: the Prime Minister, the Minister of Home Affairs, and the Leader
of the Opposition in the House of the People.342 The committee should consist


   337 OUTLINE FOR ACTION, supra note 215. This Comment examines and compares the model draft bill to

the CVC Act. This is a useful exercise because the model draft bill complies both with the technical
requirements of the UNCAC and with its overall purpose of more effectively combating corruption. Noting
the differences between the two legal instruments will help reveal the provisions of the CVC Act that should
be changed.
   338 Id. at 9.
   339 Id. at 22.
   340 Id. at 18.
   341 Central Vigilance Commission Act, No. 45 of 2003, § 3(3)(b) (India).
   342 Section 4(1) of the CVC Act provides:

        The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the
        President by warrant under his hand and seal:
            Provided that every appointment under this sub-section shall be made after obtaining the
        recommendation of a Committee consisting of—
               (a) the Prime Minister—Chairperson;
               (b) the Minister of Home Affairs—Member;
               (c) the Leader of the Opposition in the House of the People—Member.
Id. § 4(1).
846                          EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

of more than these three people.343 These recommendations should also be
applied to the CBI and the appointment of its Director.344 The committee
deciding on the leaders of an anti-corruption body, whether the CBI or CVC,
should include individuals from different sectors of the government to reduce
the possibility of a particular agency pressuring the bodies.345
    The CVC Act diverges from the UNODC model draft bill in its description
of the functions of the anti-corruption commission. Section 3 of the CVC Act
lays out the functions and the powers of the CVC.346 The CVC Act focuses on
the CVC’s superintendence of the CBI and generally states that the CVC will
“exercise superintendence over the vigilance administration of the various
Ministries of the Central Government or corporations established by or under
any Central Act.”347 The model draft bill is much more explicit in the
functions of an anti-corruption commission and states that the commission
shall:
            1. “prepare strategies for the prevention and control of
               corruption for submission to and adoption by the
               [legislative bodies, Head of State]”;348
            2. “implement and coordinate policies aimed at preventing
               and combating corruption”;349
            3. “advise government departments on anti-corruption
               strategies and procedures”;350

   343  Possible Committee members could be: the last retired Chief Justice of India; last retired director of
the CBI; last retired Chief of the Army, Navy, or Air Force; last retired Cabinet Secretary; or last retired Chief
of either the Central Board of Excise and Customs or the Central Board of Direct Taxes. LALL, supra note
247, at 224–25.
   344 As amended by the CVC Act, Section 4A of the DSPE Act states:

         (1) The Central Government shall appoint the Director on the recommendation of the Committee
         consisting of—
                 (a) the Central Vigilance Commissioner—Chairperson;
                 (b) Vigilance Commissioners—Members;
                 (c) Secretary to the Government of India in-charge of the Ministry of Home Affairs in the
         Central Government—Member;
                 (d) Secretary (Coordination and Public Grievances) in the Cabinet Secretariat—Member.
Delhi Special Police Establishment Act, No. 25 of 1946, § 4A(1) (India) (as amended by the Central Vigilance
Commission Act, No. 45 of 2003, § 26(b)).
   345 LALL, supra note 247, at 224–25; see also REVIEW OF MODELS, supra note 44, at 18.
   346 Central Vigilance Commission Act, No. 45 of 2003, §§ 8–12.
   347 Id. § (8)(1)(h).
   348 Draft Law for the Establishment of an Anti-Corruption Commission art. 4(1), in OUTLINE FOR ACTION,

supra note 215, annex IV.
   349 Id. art. 4(2).
2008]                      INDIA VERSUS THE UNITED NATIONS                                          847

           4. “conduct information campaigns aimed at preventing
              corruption and misconduct and shall organize specialized
              training of staff in prevention, investigation and
              prosecution”;351
           5. “centralize information regarding acts and misconduct
              communicated to it by the police services and public
              authorities”;352
           6. “receive information relevant to the performance of its
              mission within the scope of the administrative powers
              assigned to it”;353
           7. “investigate shortcomings in the organization and
              management of public administration and enterprises”;354
              and
           8. “prepare and submit to the [legislative bodies, Head of
              State] a progress report . . . .” 355
India’s current assertion that the CVC is an autonomous body is true, but its
functions do not fulfill the roles imagined by UNCAC’s requirement of an
independent anti-corruption commission. The CVC Act focuses more on
superintendence of other bodies than on actual anti-corruption measures. To
fulfill the UNCAC’s purpose of promoting and strengthening anti-corruption
measures, the CVC Act should be amended. The new act should explicitly
state the anti-corruption functions it will perform.

   2. The CBI
   An independent anti-corruption investigative unit is “one of the essential
elements of a national strategy.”356 The model draft bill provided by UNODC
provides that the first general principle of an investigative body is
autonomy.357 In Vineet Narain, the Supreme Court was wrong to give the
CVC superintendence power over the CBI. The Supreme Court’s suggestion
and the resulting legislation placing the CBI under the CVC’s authority in

  350   Id. art. 4(3).
  351   Id. art. 4(4).
  352   Id. art. 4(5).
  353   Id. art. 4(6).
  354   Id. art. 5(2).
  355 Id. art. 6.
  356 Guidelines for the Establishment of a National Anti-Corruption Investigative Unit, ¶ 1, in OUTLINE
FOR ACTION, supra note 215, annex 5.
  357 Id. ¶ 2.
848                          EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

matters relating to prevention of corruption offenses and under the Central
Government’s authority for all other crimes is improper. The CVC Act places
two governing powers over the CBI and complicates the CBI’s work. The
UNODC specifically warns states not to create complex and confusing
institutional structures and functions: “It will also be important to ensure that
any restructuring is kept as simple and straightforward as possible. Overly
complex structures tend to create further opportunities for corruption.” 358
    Rather than the current division of superintendence of the CBI between two
bodies, there are two possible alternatives that vest superintendence with either
the CBI or the CVC. The alternatives parallel the two leading anti-corruption
agency structures.359 The first approach is a multi-agency approach, currently
utilized by India.360 A multi-agency approach consists of both traditional state
agencies and anti-corruption agencies.361 The new specialized anti-corruption
bodies fill the gaps that traditional bodies leave open.362 In India during World
War II, the wave of corruption within the War and Supply Department
displayed the hole in India’s law enforcement.363 In response, the government
established the Special Police Establishment, which was later replaced by the
DSPE (the CBI’s predecessor).364 If India chooses to continue its path of
multi-agency anti-corruption structures, the CBI should be free from any
supervisory power.
    Beyond the confusing hierarchy existing in the present legal frameworks of
the CVC and the CBI, the sheer volume of work handled by the CBI and CVC
suggests that each body should be its own master. The CVC exercises its
superintendence power over the CBI and oversees a large portion of the CBI’s
caseload.365 In 2006, the CVC received about 5,000 cases, and this was a
decrease from recent years.366 The CBI had 1,156 registered cases for 2006.367

   358  U.N. TOOLKIT, supra note 42, at 85.
   359  Meagher, supra note 216, at 69–73.
   360 Id. at 71. The multiple agencies are the CVC and the CBI.
   361 Id. at 70.
   362 Id. at 70–71. Often, “[a] major scandal may expose the weakness of existing structures. However, the

depth of the crisis is insufficient to support a more robust centralization of anti-corruption functions.” Id. at
70. In the United States, the Office of Government Ethics was created after the Watergate scandal. Id. at 71.
   363 GILL, supra note 6, at 43; see also CBI MANUAL, supra note 182, para. 1.2.
   364 See CBI MANUAL, supra note 182, paras. 1.2–1.4.
   365 CVC ANNUAL REPORT 2006, supra note 273, at 18.
   366 Id. at 18.
   367 CBI, CBI ANNUAL REPORT 2006, at 7, available at http://www.cbi.gov.in/annualreport/cbi_annual_

report_2006.pdf. The Anti-Corruption Division (DSPE) dealt with 844 of the cases; the Special Crimes
Division handled 138 cases; and the Economic Offenses Division received 174 cases. Id.
2008]                             INDIA VERSUS THE UNITED NATIONS                                                849

With each institutional body carrying such large caseloads, forcing the CVC to
supervise a large fraction of the CBI’s cases places an undue burden on the
CVC’s resources. The CBI has a total sanctioned police strength of over 4,000
officers, and including other employees—such as administrative staff, law
officers, and scientists—over 6,000 employees.368 The large number of
employees and the long history of the CBI imply that it is capable of
functioning effectively without CVC oversight.369 Removal of the Single
Directive only strengthens the CBI’s ability to fight corruption.370
    In the alternative, India could pursue a single-agency approach as its anti-
corruption strategy.371 A single-agency approach consists of one powerful
body performing core anti-corruption functions.372 To pursue this second
approach, India could create an anti-corruption investigative body within the
CVC and under its sole superintendence. Likewise, the Central Government
could fold the DSPE into the CVC, giving the CVC its needed investigatory
division.373 This second tactic is attractive because the CBI does not work
solely on corruption cases; the CBI investigates other criminal and economic
cases.374 The CBI is responsible for investigating offenses pertaining to 69
Central Government acts375 and 18 state acts.376




      368
       See CBI & Its Roles, http://www.cbi.gov.in/aboutus/cbiroles.php (last visited Jan. 30, 2009).
      369
       See CBI ANNUAL REPORT 2006, supra note 367, at 1–7.
   370 See supra Part II.A–B.
   371 Reports and studies mentioning anti-corruption agencies most often refer to this multi-purpose single-

agency approach. REVIEW OF MODELS, supra note 44, at 16. According to the OECD:
            The [multi-purpose agencies with law enforcement powers and preventive functions] model is
            possibly the only one that would—strictly speaking—live up to the name ‘anti-corruption
            agency’ as it combines in one institution a multifaceted approach of prevention, investigation and
            education. For this reason, a multi-purpose single-agency model has attracted most visibility and
            triggered discussions in international arena. Normally, when literature and reports refer to
            specialised anti-corruption agencies it is this model that they have in mind.
Id.
      372   Meagher, supra note 216, at 71. A single-agency commission does not perform all functions. Id. at
72.
      373
       See supra notes 192–94 and accompanying text.
      374
       See CBI MANUAL, supra note 182, annexure 1-C.
  375 Id. Offenses range from corruption offenses under the Prevention of Corruption Acts of 1947 and

1988 to non-corruption crimes under the 1972 Antiquities and Art Treasures Act, 1899 Indian Stamp Act,
1971 Prevention of Insults to National Honour Act, and 1972 Wildlife Protection Act. Id.
  376 Id.
850                          EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

    Repositioning the corruption investigative wing of the CBI within the CVC
or creating a new investigative wing within the CVC would allow for greater
specialization and a higher degree of expertise. Combining anti-corruption
bodies centralizes their knowledge and diminishes coordination problems that
exist with two separate bodies.377 Furthermore, issues unrelated to anti-
corruption will no longer distract the bodies from their core functions. Beyond
providing a clearer hierarchy, one specialized anti-corruption body also
ensures that the body is insulated from other agencies and government
departments that may be under investigation.378 Additionally, it is easier to
monitor the successes of a single anti-corruption body.379
    Regardless of where the CBI’s anti-corruption investigatory powers vest,380
the CBI’s autonomy is incomplete because it must get previous approval from
the government to begin investigations into certain levels of public officials.381
Most studies on anti-corruption bodies agree that a fundamental requirement of
any agency is independence.382 In countries where there is evidence of high-
level public servant corruption, such as India, independence becomes even
more important.383 However, full independence is not required. Only “an
adequate level of structural and operational autonomy secured though [sic]
institutional and legal mechanisms aimed at preventing undue political
interference” is required.384 To consider the CBI independent under these
standards and thus in compliance with UNCAC Article 36,385 the CBI “should
have a clear legal basis governing the following areas: mandate, institutional
placement, appointment and removal of its director, internal structure,

   377  See Meagher, supra note 216, at 72.
   378  U.N. TOOLKIT, supra note 42, at 89.
   379 Id. at 90.
   380 There is no right answer: “international standards neither offer a blueprint for setting up and

administering a specialised anti-corruption institution, nor advocate a single best model or a universal type of
an anti-corruption agency.” REVIEW OF MODELS, supra note 44, at 13.
   381 LALL, supra note 247, at 222. “In no country that appears high on the scale of Transparency

International, the agency entrusted with the task of investigation of graft, functions under the executive. It is
recognised the world over that the agency has precisely to investigate the same very executive, both the
bureaucrat and the politician.” Id.
   382 REVIEW OF MODELS, supra note 44, at 17.
   383 U.N. TOOLKIT, supra note 42, at 92 (“When a country is emerging from a systemically corrupt

environment or corruption in which high-level officials are implicated, the [anti-corruption agency] may be the
only agency willing to investigate and prosecute or the only body with sufficient independence to do so
successfully.”).
   384 REVIEW OF MODELS, supra note 44, at 17.
   385 UNCAC, supra note 1, art. 36. (“Such body or bodies or persons shall be granted the necessary

independence, in accordance with the fundamental principles of the legal system of the State party, to be able
to carry out their functions effectively and without any undue influence.”).
2008]                         INDIA VERSUS THE UNITED NATIONS                                              851

functions, jurisdiction, powers and responsibilities, budget, personnel-related
matters . . . , relationships with other institutions . . . , accountability and
reporting . . . .”386 To achieve the true spirit of this provision, the Central
Government’s prior sanction should not be required for CBI investigations, and
section 6A of the DSPE Act should be repealed.

                                              CONCLUSION

    The UNCAC responded to the emerging awareness that corruption has
global implications and requires both domestic and transnational solutions.387
India took the first step toward a more efficient anti-corruption strategy by
recognizing the importance of an international initiative to stamp out
corruption. Though India praises the convention and feels that “[t]he entire
international community has reason to feel satisfied with the final shape of the
Convention,”388 it has yet to ratify the treaty.389 Perhaps India’s hesitation in
joining the other 130 states parties is because the country’s internal structure
needs numerous alterations.
    The Supreme Court in Vineet Narain attempted to begin the cleansing of
Indian political corruption by focusing on two specific institutions within
Indian society that required modification. The Supreme Court acknowledged
that the CVC needed to be given statutory status to ensure the continuance of
its efforts. The Supreme Court struck down the Single Directive and
advocated the CBI’s severance from Central Government authority by giving
the CVC superintendence powers over the CBI.390 However, the Central
Government’s response overturned the Supreme Court’s progress. The Central
Government passed the CVC Act in a half-hearted attempt to comply with the
Vineet Narain decision.391 Importantly, the Central Government once again


  386   REVIEW OF MODELS, supra note 44, at 18.
  387   UNCAC, supra note 1, pmbl.
   388 Pathak, supra note 2, at 4.
   389 UNCAC Signatories, supra note 24. Though not in compliance with the already existing provisions,

India recommends even more mandatory provisions:
        We would have very much liked the provisions in the Convention on International Cooperation
        more focussed and mandatory. . . . [W]e hope that, with the acquisition of experience of the
        working of this Convention, the Conference of Parties will take necessary measures to strengthen
        and broaden its provisions through appropriate additional legal instruments.
Pathak, supra note 2, at 4.
   390 See supra Part II.A.
   391 See supra Part II.B.
852                          EMORY INTERNATIONAL LAW REVIEW                                             [Vol. 22

retained the power to sanction or halt investigations of high ranking public
officials. The language of the CVC Act does not implicate the exact
challenges presented in Vineet Narain; instead, the Swamy court focused on an
Article 14 equality of law challenge to the section of the CVC Act that
reintroduces the Single Directive.392
    The Supreme Court’s emphasis on the degradation of fundamental rights as
the central issue in Swamy is fitting because “[c]orruption in India not only
poses a significant danger to the quality of governance, but also threatens in an
accelerated manner the very foundation of India’s democracy, rule of law and
statehood.”393 Some authors even argue that there should be a constitutional
right to corruption-free governance.394 Ndiva Kofele-Kale, a professor of law
at Southern Methodist University, using a human rights approach, related the
right of corruption free services and good governance to the right of the people
to “exercise permanent sovereignty over their natural resources and wealth,
that is, their right to economic self-determination.”395 Kofele-Kafe contended
that common Article 1 of the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and Cultural
Rights enshrined this right to economic self-determinism.396 This Comment
does not address the right to corruption-free governance as a constitutional
right because it is not necessary for the current debate on the Single Directive
since the Swamy court only focuses on Article 14 of the Constitution. Though
not discussed, an additional anti-corruption constitutional provision seems
feasible due to India’s growing use of public interest litigation in the areas of
corruption. Vineet filed his complaint against the inaction of the CBI and the
Single Directive’s corruptive application as a public interest litigation. By
accepting Vineet’s case as public interest litigation, the Supreme Court implied
that corruption-free government services are a “public interest,” and a lack of
corruption-free government services constitutes a violation of a fundamental
right.397


   392  See supra Part II.C.
   393  Kumar, supra note 37, at 34. Most significantly, “[c]orruption in government undermines the rule of
law, as government decisions are not accountable to any systemic checks and balances. The unchecked
corrupt actions of government officials clearly violate the principles of the rule of law which provides the basis
on which democratic societies sustain and develop.” Id. at 38.
   394 Id. at 35–36.
   395 Ndiva Kofele-Kale, The Right to a Corruption-Free Society as an Individual and Collective Human

Right: Elevating Official Corruption to a Crime under International Law, 34 INT’L LAW. 149, 164 (2000).
   396 Id.
   397 See Vineet Narain v. Union of India (1998) 1 S.C.C. 226, 226–27.
2008]                       INDIA VERSUS THE UNITED NATIONS                   853

    In the original Swamy hearing, the Supreme Court did not provide a
conclusion regarding section 6A of the DSPE Act.398 However, the Supreme
Court’s previous analysis of the Single Directive alludes to the future
abolishment of section 6A and its prior sanction requirement.399 The court in
Vineet Narain had harsh words about the unfairness present in the Single
Directive’s application: “The sum and substance of these orders is that the CBI
and other governmental agencies had not carried out their public duty to
investigate the offences disclosed; that none stands above the law so that an
alleged offence by him is not required to be investigated . . . .”400 Throughout
the opinion, the court emphasized, “Be you ever so high, the law is above
you.”401 The government’s prior sanction requirement is in clear violation of
the court’s definition of equality before the law because it creates two classes
of offenders with no rational basis for the distinctions beyond the reprehensible
protection of one class of public servants.
    In addition to violating a fundamental right under the Indian Constitution,
the CVC and CBI’s current structures and functions do not fulfill the language
or the spirit of the UNCAC provisions. The UNCAC focuses on institution-
building as an efficient strategy for good governance.402 An independent body
functions successfully because it functions autonomously from other
governmental powers that may influence and hinder its anti-corruption
efforts.403 An autonomous body operates distinctly from the agencies,
departments, and sectors of the government it investigates.404 Anti-corruption
bodies will have “greater public credibility” if they are insulated from
organizations that the public may feel are corrupt.405 The CBI does not fulfill
UNCAC Article 36 provisions explaining the role of specialized law
enforcement bodies. The CBI does not have the required independence to
carry out its anti-corruption functions because it must obtain permission from
the Central Government before commencing investigations of high level public
officials.406 Under the current CVC Act, the CVC does not perform the
numerous functions that the United Nations recommended its anti-corruption


  398   Subramanian Swamy v. Director, CBI (2005) 2 S.C.C. 317, 321.
  399   See supra Part II.C.
  400   Vineet Narain (1998) 1 S.C.C. at 236.
  401   Id. at 235.
  402   U.N. TOOLKIT, supra note 42, at 82 n.52.
  403   See id. at 89.
  404   See id.
  405   See id.
  406   See LALL, supra note 247, at 216–21.
854                         EMORY INTERNATIONAL LAW REVIEW                                            [Vol. 22

agencies perform, such as implementing anti-corruption policies and
organizing specialized training in the areas of corruption prevention,
investigation, and prosecution.407
    The DSPE Act establishing the CBI and the CVC Act granting statutory
status to the CVC are both key pieces of Indian anti-corruption legislation.
While both agencies do collectively find and punish corrupt officials, both
pieces of law have serious defects. India has not granted them enough power
to make them effective anti-corruption agencies. Though the CVC has its
flaws, technically its statutory provisions do not put it at odds with the
UNCAC Article 6 requirements necessitating the existence of a preventive
anti-corruption body. The same cannot be said for the laws governing the CBI.
The Single Directive violates not only the UNCAC, but also the Indian
Constitution.408 If the Supreme Court in the second Swamy hearing determines
that the Single Directive violates Indian fundamental constitutional rights, the
Central Government will be forced to take an important step in India’s anti-
corruption strategy.
    Yet the Indian public will probably face the same situation it did after
Vineet Narain: judicial action to create more effective anti-corruption bodies
and Central Government reaction to retain the existing unsuccessful agencies.
The message is clear that the creation of effective anti-corruption bodies
requires the political will of a nation’s leaders.409 Thus, the hesitation of
Indian leaders in the Executive and in Parliament to ratify UNCAC and supply
the CBI with adequate investigatory powers reflects their lack of political will
to eradicate corruption.
   So, how and when will this political will develop? Though an impossible
question to answer, consider Vineet Narain. The Supreme Court struck down a




  407   See Draft Law for the Establishment of an Anti-Corruption Commission, supra note 348, art. 4.
  408   Vineet Narain (1998) 1 S.C.C. 226, 262–64 (holding the Single Directive unconstitutional because it
creates two classes of public servants); see also Vittal, supra note 300, para. 14 (“If the Single Directive is
retained, we will be only practising what George Orwell pointed out in his book ‘The Animal Farm’: ‘All
animals are equal but some animals are more equal than others!’”).
   409 See JEREMY POPE, TI SOURCE BOOK 2000, CONFRONTING CORRUPTION: THE ELEMENTS OF A

NATIONAL INTEGRITY SYSTEM 41–46 (2000), available at http://www.transparency.org/publications/
sourcebook.
2008]                         INDIA VERSUS THE UNITED NATIONS                                                  855

decades-long practice in light of a huge scandal. If not with the Swamy
decision, perhaps the political will to change will only develop from another
corruption outrage in India.410

                                                                                            JESSICA JONES∗




   410 Perhaps the next scandal could be the pending investigation of World Bank projects in India.

Currently, the World Bank is examining Indian corruption in connection with its health sector projects.
WORLD BANK GROUP, DEPARTMENT OF INSTITUTIONAL INTEGRITY, DETAILED IMPLEMENTATION REVIEW:
INDIA HEALTH SECTOR, 2006–07, at 2, 7 (2007), available at http://siteresources.worldbank.org/INTDOII/
Resources/WB250_Vol1_Web_011508.pdf. After examining five projects, the World Bank determined that
fraud and corruption were present in all five projects. Id. at 9. In response to the existence of corruption, India
and the World Bank are working together to create new provisions to hinder corruption in future projects.
Press Release, The World Bank, Government of India and World Bank Group Join Forces to Stamp Out
Corruption in Health Sector Projects (Jan. 11, 2008), available at http://web.worldbank.org/WBSITE/
EXTERNAL/NEWS/0,,contentMDK:21610079~menuPK:34463~pagePK:34370~piPK:34424~theSitePK:460
7,00.html.
     ∗ Managing Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law

(2009).
856   EMORY INTERNATIONAL LAW REVIEW   [Vol. 22

								
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