The Supreme Court Tuesday set aside the October 23, 2018, order of the Central Vigilance Commission (CVC) and Union government divesting CBI Director Alok Kumar Verma of his powers and functions, finding that it went against the “legislative intent” to “ensure complete insulation” of the CBI Director “from all kinds of extraneous influences”.
However, the bench of Chief Justice of India (CJI) Ranjan Gogoi and Justices S K Kaul and K M Joseph made it clear that the issue of Verma’s divestment was “still open” and asked him not to take any major policy decisions, and confine himself to routine functions, till the high-powered committee that selects the CBI Director takes a call on his future. The court said the Committee, comprising the Prime Minister, CJI and Leader of the Opposition, should consider the matter “at the earliest and, in any case, within a week from the date of this order”.
The verdict came on petitions by Verma and NGO Common Cause challenging the divestment. The petitioners had contended that the action amounted to transfer, which requires prior consent of the Committee, but the government took the stand that it did not amount to a transfer as understood in service jurisprudence.
The order clarifies the law on what was yet a grey area — how to proceed if interim action was inevitable against a CBI chief — and further insulates post from pressures. But for Verma, it’s a mixed bag.
Disagreeing with the government stand, the Supreme Court, in a 44-page judgment, said that “if the word ‘transferred’ has to be understood in its ordinary parlance and limited to a change from one post to another… such an interpretation would be self-defeating and would clearly negate the legislative intent”.
“In such an event,” the order noted, “it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post”. The bench added that this was “clearly not what the legislature could have intended”.
However, it said, “As the issue of divestment of power and authority of the Director, CBI is still open for consideration by the Committee and our interference with the impugned orders has been on the ground indicated above, we deem it proper to direct that the petitioner Shri Alok Kumar Verma, Director, CBI, upon reinstatement, will cease and desist from taking any major policy decisions till the decision of the Committee permitting such actions and decisions becomes available within the time frame indicated.”
Writing for the bench, the CJI added that Verma’s role in the interregnum “will be confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications”.
The bench said that the history of agency’s evolution had shown that it “has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest”. “The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended… (This) would require all Authorities to keep away from intermingling or interfering in the functioning of the Director.”
The court made it clear that where any such interference on the functioning of the Director may be called for, “public interest must be writ large against the backdrop of the necessity”, and that the “relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee” that appoints the CBI Director.
In a 1997 judgment, the Supreme Court had entrusted the task of selecting the CBI Director to the Committee, given the CVC Superintendence over the agency’s functioning, and fixed a minimum two-year tenure for the Director.
The Centre had contended that the Committee was only tasked with selecting the CBI Director and appointment was made by the government. But the court did not find merit in this and said “no provision with regard to interim suspension or removal is to be found in the DSPE (Delhi Special Police Establishment) Act, 1946 (under which the agency was established)”.
The court also noted that rules in some states, while providing for a tenure of two years for the Director General of Police, expressly contemplate removal of the incumbent before expiry of tenure on certain specified grounds, but not the DSPE Act. The court said, “if the legislative intent would have been to confer in any authority of the State power to take interim measures against the Director, CBI… surely, the legislation would have contained enabling provisions to that effect”.
The court was also seized of some interlocutory applications regarding transfers etc effected by the interim CBI director in the matter of investigations against the agency’s Special Director Rakesh Asthana. The court termed these as “consequential orders” and added that the parties were free to challenge them before an appropriate forum if required.