The Supreme Court Thursday reserved its order on petitions challenging the government’s decision to divest CBI Director Alok Verma of his charge, observing that the problems between him and Special Director Rakesh Asthana was “not something that happened overnight to require immediate action”.
It reminded the government it had to be “fair” and asked what was the difficulty in consulting the selection committee before moving against Verma — the CBI Director is chosen by a committee comprising the Prime Minister, Leader of Opposition and Chief Justice of India.
Chief Justice of India Ranjan Gogoi wondered why Parliament had not prescribed any “specific protection” for the CBI Director, unlike the Central Vigilance Commissioner.
The CJI told Solicitor General Tushar Mehta who appeared for the Central Vigilance Commission: “Situation which prompted the CVC to take action is not something that happened overnight, but as the Attorney General said yesterday, it has been going on since July. It has been developing since three months… It’s not something that has happened overnight to require immediate action.”
Mehta told the bench — it also comprised Justices S K Kaul and K M Joseph — that it was a “surprise situation” and that “CVC’s power for superintendence over the CBI would encompass such surprise situations and extraordinary situations needed extraordinary remedies”.
The CJI began by asking Mehta if the only reason for laying down a fixed two-year tenure for the CBI Director is to ensure that an incumbent is not bypassed. “It’s the only reason spelt out,” Mehta replied. At this, the CJI said: “This is not the only reason, but could be one of the reasons.”
He said that senior advocate Fali S Nariman, representing Verma, “may argue what then is the difficulty to go to the committee… If you want to do something contrary to the Vineet Narain (judgment), then be fair. Why not consult?”.
In its 1997 order in the Vineet Narain case, the Supreme Court laid down a fixed two-year tenure for the CBI Director.
Observing “what the CBI Director is given is security of tenure”, the CJI said “background facts indicate that no protection was given to the office of CBI Director unlike the CVC”.
At this, senior advocate Dushyant Dave, who appeared for second petitioner NGO Common Cause, said there was three-fold protection in the Delhi Special Police Establishment Act which established the CBI.
The CJI then said “is it only with regard to the tenure or is it in all other conditions including disciplinary action making him virtually untouchable? … it’s something we will have to decide… Since CVC Act gives protection to CVC and commissioners, what was the difficulty for the Parliament to give similar protection to CBI Director”.
Nariman, on his part, maintained that the committee’s consent was must for any action and “under all circumstances, they must go to the committee… Transfer here does not mean transfer in service jurisprudence where it may be from post to post. It has to be understood as makeover the right or responsibility to another”.
The CJI also sought to know “if there is an exigency, can the court appoint a person to discharge the functions of the Director”. Nariman replied that this could be done since the court was, in his view, the final interpreter of the Constitution.
Referring to arguments that Verma continued to be the Director, Nariman said: “I (Verma) may put on my visiting card that I am CBI Director, but I am no more a CBI Director than I (Nariman) am.”
Mehta said the CBI Director was an IPS officer and continued to be a member of the All India Services and, therefore, conduct rules for such officers would be binding on him too.
“Therefore, in a case of disciplinary action, suppose a person is caught red-handed taking bribe or misbehaving with a lady, immediate action has to be taken… There needs to be some provision by which I (CVC) can act which is not envisaged by the statute,” he said.
Justifying the action against Verma, Mehta submitted that the “two senior officers instead of investigating serious cases were investigating each other, were raiding each other… Unless the CVC has the power to act in surprise situations, it will become a toothless body. Had action not been taken, we would have been accused of dereliction of duty”.
He said that based on the enquiry findings, some action lesser than transfer had to be taken against the officers and the CVC passed an “impartial” order. They were told “be away from your office till I do my statutory duty,” he said. This was only an “interim measure… to take care of a surprise situation”.
When it is made final and it is decided to transfer him, the government will take a call on moving the committee, Mehta said.
Countering Nariman’s stand that the action against Verma amounted to a transfer, he said transfer is a permanent action, from one place to another, and the action against the Director did not amount to a transfer.
Attorney General K K Venugopal said there was no mention of suspension or removal in the Delhi Special Police Establishment Act and consequently, the General Clauses Act would apply, giving the appointing authority, in this case the government, the power to suspend or remove an officer.
The CBI too opposed Verma’s contention that it was a transfer. Referring to the IPS (Cadre) Rules, senior advocate P S Narasimha, appearing for the CBI, contended that if it was indeed a transfer, these rules would have applied. “This is only a transfer simpliciter, as against transfer in the context of disciplinary action,” he said.
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