A day before the bench led by Chief Justice of India Ranjan Gogoi takes up CBI Director Alok Verma’s petition challenging the government decision to divest him of all powers and send him on administrative leave, Mallikarjun Kharge, leader of the Congress in Lok Sabha and one of the three members of the committee that appoints the CBI chief, wrote to Prime Minster Narendra Modi, saying the government move was “illegal” and “mala fide” as “no one — neither you nor the CVC — enjoys the requisite authority to interfere with the Terms of Service vested in the Director”.
The Prime Minister heads the committee which also includes the Chief Justice of India.
In his letter, Kharge, as leader of the single largest Opposition party in Lok Sabha, wrote: “The actions taken in early hours of the morning of October 24, 2018, in transferring the Director and his entire team, amount to a grave violation of the law, the Supreme Court’s clear directions on the subject and the Constitution of India.”
Incidentally, Kharge had lodged his dissent over the appointment of Verma as CBI Director in January 2017, pointing out that he had no experience in the CBI and anti-corruption investigations. He had backed R K Dutta for the top job in the CBI.
His letter echoed Verma’s petition that “previous consent” of the committee was needed for his “transfer”. The letter quoted “section 4A” of The Delhi Special Police Establishment Act, 1946 on the committee for appointment of the Director to argue that “no one — neither you nor the CVC — enjoys the requisite authority to interfere with the Terms of Service vested in the Director.”
Referring to Special Director Rakesh Asthana who too was sent on leave after a bitter fight with Verma, Kharge’s letter to the Prime Minister stated: “Therefore, it is clear that while you may have forced the appointment of your chosen individual as a Special Director upon the Institution, the Director is appointed by way of a statutory process that is transparent and cannot be substituted by way of Executive discretion. Furthermore, neither you nor the CVC, enjoy any powers to remove the Director in any manner (leave, transfer or otherwise).”
According to section 4B, Kharge wrote, the Director has a two-year tenure and “shall not be transferred except with the previous consent of the Committee”.
“Therefore, it is apparent that the decision taken by the CVC, shortly after your meeting with the Director and the Special Director, we might add, is a serious breach of the law. It also constitute a serious, illegal and unwanted intrusion by the PM and other governmental functionaries into an ongoing criminal investigation,” Kharge wrote.
He said it would be a “ridiculous misinterpretation of the law if the Government admits that it cannot appoint, remove or transfer the Director, yet can ask him to sit at home and appoint someone else in his stead.”
He also quoted the Supreme Court ruling in the Vineet Narain case — which had indemnified the CBI Director with a two-year tenure and made approval of the Selection Committee mandatory for his or her transfer — to argue that there is no scope for “executive discretion”.
“The de-factor transfer/divesting of authority of the Director CBI, is illegal, mala fide, and points to a sinister agenda to scuttle important investigations including into the Rafale deal. It seems less like a ‘clean-up’ — as your cabinet colleagues are nervously asserting — and strikingly more like a ‘cover-up’,” he wrote.
Maintaining that the developments came as a surprise because “there are no visible grounds to transfer the Director,” Kharge said “the only plausible explanation for this desperate and hasty move is an attempt to scuttle the ongoing investigations in the Special Director’s cases and other cases that might cause significant embarrassment to your Government. The explanation acquired even more relevance when one considers that almost the entire team working under the Director (on the investigations against the Special Director) has been transferred on specious reasons of ‘public interest’.”
He said the Government’s “attempt” to “create a false equivalence” between the CBI Director and the Special Director was “laughable”.
“There is no FIR, no case, no prosecution pending against the former and there was none produced or referred to in the selection committee which selected him about 17 months ago. After several charges already existing against the Special Director at the time of his appointment and when statement have been recorded against the Special Director under section 164 CrPC before the magistrate, the CBI starts investigating against him,” he said.
“At that point, the person under investigation (i.e. Special Director), a few months ago, makes allegations against the prosecutor. And the government suddenly jumps in on the basis of a false equivalence of charges between the Special Director and the CBI Director. This is pretence to protect certain people and exclude/sideline others and to attempt to control the CBI organisation by the executive government which is completely contrary to both the Supreme Court letter and spirit as also the 2014 amendment to the CBI Act,” he wrote.
Kharge also raised the issue of the presence of four Intelligence Bureau operatives outside the residence of Verma Thursday, saying it is “extremely worrying and alarming to find that IB officers are snooping and keeping an eye on officer sent on leave”.
“One must answer publicly as to what are the reasons behind this snooping? Is the PM trying to scare the dissenting voice of an officer and giving message of similar consequences to others? Or is the PMO scuttling the probe with the sole aim of preventing the truth of the reported corruption in the Rafale fighter jets purchase. Sir, Prime Ministerial legacies are built by strengthening institutions. Your term, it seems more and more likely, will be remembered for the opposite,” he wrote.
Alok Verma remains Director, says CBI
The CBI Thursday said Alok Verma will remain its Director and Rakesh Asthana will continue as the Special Director. “Alok Verma continues to remain the Director of the CBI, Rakesh Asthana remains as Special Director and M Nageshwar Rao is looking after duties and functions of the Director in the interim period till the time CVC looks into allegations and counter allegations,” a CBI spokesperson told reporters.