Understanding CVC, govt orders against Alok Verma

What laws govern the appointment and removal of the CBI Director? How does the CVC recommendation — and the government move — to divest Alok Verma of his functions stack up against these provisions?

Written by Kaunain Sheriff M | New Delhi | Updated: October 25, 2018 10:58:39 am
Understanding CVC, govt orders against Alok Verma The CBI headquarters Wednesday. (Express Photo/Tashi Tobgyal)

Early Wednesday morning, the Appointments Committee of the Cabinet headed by Prime Minister Narendra Modi appointed M Nageshwar Rao, a Joint Director at the Central Bureau of Investigation (CBI), as Director of the agency as an “interim measure” with “immediate effect”. This came after the Central Vigilance Commission (CVC) passed orders Tuesday “divesting” CBI Director Alok Verma of his “functions, power, duty and supervisory role” at the CBI.

Why did the CVC and the government move against Verma?

Earlier on Tuesday, Delhi High Court had directed CBI to maintain “status quo” until October 29 on proceedings against its Special Director Rakesh Asthana, who had sought the quashing of the agency’s FIR against him (filed on October 15) for alleged bribery. On Wednesday, the government said that action was taken against Verma based on the CVC’s decision to conduct an inquiry against him. It had “evaluated” the available material, the government said, and decided to send Verma on leave in the “interest of equality, fair play and principles of natural justice”.

In its order of Tuesday, the CVC said that the allegations made in a complaint (dated August 24) that the Cabinet Secretary had forwarded on August 31 were “serious in nature having prima facie vigilance angle”. The allegations included “payment of Rs 2 crore as bribe by one Shri Satish Babu Sana to the Director, CBI (Verma)”, and “undue interference” in a case of corruption involving RJD chief Lalu Prasad. The CVC said it had “served 3 separate notices… dated 11.09.2018 upon the Director, CBI to produce files and documents” before it on September 14. However, even after the CBI sought more time, Verma had remained “non co-operative”, “non complaint”, and had “created wilful obstruction” in the CVC’s functioning.

What was the basis on which the CVC made its decision?

The CBI derives its legal powers from The Delhi Special Police Establishment (DSPE) Act, 1946. The CVC has pointed out that Section 4(1) of the Act “vests the power of superintendence upon the DSPE with this Commission”, and “Section 8(1)(a) and (b) of the CVC Act also empowers the Commission to exercise superintendence over the functioning of DSPE”. Considering “the extraordinary and emergent situation that has arisen”, the CVC, “after a serious and due consideration of all the facts and circumstances”, directed that Verma be “divested of and shall not exercise any function, power, duty and supervisory role in respect of cases… under the provisions of the PC Act, 1988, till this interim measure is varied/modified/vacated”.

But can the CVC make such a recommendation to the government?

Section 4B of the DSPE Act lays down the “terms and conditions of service of (the CBI) Director”. The Director “shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office” and “shall not be transferred except with the previous consent of the Committee referred to in sub-section (1) of Section 4A”. This Committee consists of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India or a judge of the Supreme Court appointed by him.

While both the central government and CVC’s order are silent on this provision, the CVC has mentioned Section 8(1)(a) of the CVC Act. However, both this section and Section 4 of the DSPE Act — also mentioned by the CVC — relate to the investigation of offences alleged to have been committed under the Prevention of Corruption Act. Verma has as yet not been accused of or named in an offence under the PC Act.

The CVC has also invoked Section 8(1)(d) of CVC Act, which relates to inquiry or investigation of an official who has committed an offence under the Prevention of Corruption Act, and Section 11, which says the CVC has the power of a civil court to summon persons, documents and examination of witnesses related to the inquiry. But these sections do not say the CVC has the power to recommend to the government to divest the CBI Director of his powers.

Before businessman turned complainant in Asthana FIR, CBI wanted to arrest him Alok Verma outside the Home Ministry Tuesday. (Express Photo/Tashi Tobgyal)

Is the government then empowered to act on such a recommendation by the CVC and send the CBI Director on leave?

The Supreme Court will examine this question on Friday. In its landmark judgment in Vineet Narain & Others vs Union of India & Anr (1997), the court laid down legally binding procedures that the central government must follow regarding the removal of the CBI Director. The order said the Director shall have a minimum tenure of two years, and that a premature transfer “in an extraordinary situation… should have the approval of the Selection Committee”.

In July 2013, the Manmohan Singh government said that the Director shall not be transferred “without the consent of Selection Committee”, and that “only President” would have the authority to “remove or suspend” the Director, on a reference by the CVC of “misbehaviour or incapacity”. In Verma’s case, the government has not taken the prior approval of the Selection Committee, nor has the CVC established his misbehaviour or incapacity.

What plea has Verma taken before the Supreme Court?

Verma has said that he was sent on leave after “certain investigations into high functionaries” did not take the direction that “may be desirable to the government”. Legally, he has challenged the government’s decision on the ground that it is contrary to Section 4B of the DSPE Act, which grants the Director a term of “not less than two years”. He has also argued that the order violates the legal provision that requires prior approval of the Committee comprising the PM, LOp and the CJI for the transfer of the Director.

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