New Delhi: Attorney General K.K. Venugopal today brushed aside the challenge to the appointment of Rakesh Asthana as the Central Bureau of Investigation’s special director on the grounds of lack of integrity. Asthana’s record as additional director, CBI is outstanding, Venugopal told the Supreme Court.
The AG told the bench of Justices R.K. Agrawal and Abhay Monohar Sapre that the FIR, filed by the CBI in connection with a corruption case on account of which Asthana was sought to be excluded by the selection committee, does not name him. The Supreme Court, he said, should look into the process of selection rather than the merits; there was no dissent in the meeting of the selection committee which recommended his appointment, he emphasised. “The secretary, Department of Personnel and Training, also agreed,” Venugopal pointed out.
“Nobody says that the FIR should not be investigated or taken to its logical end. But nobody knows how long the investigation would take and therefore, the career of the police officer against whom there has not been a single adverse report so far should not suffer,” he said.
Venugopal told the court that as additional director, Asthana has been handling many high-profile cases, including the fodder and coal scams, and he has been found “eminently suitable” for the post of special director.
Venugopal scoffed at media reports that fugitive liquor baron Vijay Mallya’s counsel, an academic teaching at SOAS, London, sought to use the reports about Asthana’s appointment as special director before a court in the UK to prevent his extradition to India.
“Just because Mallya uses his appointment to his advantage on the basis of certain copies of materials sent to him, should the selection committee refrain from recommending his name for appointment?” he asked the bench.
Venugopal drew a distinction between the case decided by the Supreme Court in 2011, in which the then chief vigilance commissioner P.J. Thomas was found unsuitable to hold the post because his appointment violated the principle of “institutional integrity”, and the present one. In Thomas, the fact that he was an accused in a pending case was not disclosed to the selection committee, whereas the facts of the FIR which implicate Asthana have been revealed to the selection committee, Venugopal told the bench.
The counsel for the petitioner, NGO Common Cause, Prashant Bhushan, sought to highlight that the CBI director, Alok Kumar Verma, has opposed Asthana’s appointment, and said his view should have prevailed over the selection committee’s recommendation to appoint him. Rules require the government to “consult” the CBI director, and as interpreted by the Supreme Court in the Second Judges case, the word “consultation” with the chief justice of India should mean “concurrence”, Bhushan submitted to the court. The Supreme Court, in that case, held that in a situation where the consultee (in this case, the CBI director) is more suitable than the Central Vigilance Commission to decide about the suitability of a particular person, “consultation” would mean “concurrence”.
Venugopal, however, ridiculed the idea that a CBI director could be equated to the chief justice of India on the meaning to be ascribed to “consultation”.
Venugopal handed over the minutes of the meeting of the selection committee, held in the office of the Central Vigilance Commission at 12:30 pm on October 21. The committee included, apart from the central vigilance commissioner as chairman, vigilance commissioners Rajiv and T.M. Bhasin, and home secretary Rajiv Gauba. The secretary, DoPT, who is also a member of the committee, was absent. CBI director Verma and secretary, Central Vigilance Commission, Nilam Sawhney, attended the meeting as special invitees.
The minutes state that the director of the CBI handed over a confidential letter enclosing an unsigned note on Sterling Biotech referring to Asthana.
The minutes, however, reached a strange conclusion:
Keeping in view that there is no finding in these papers that the person mentioned therein is the same person under consideration for appointment and there is nothing about the veracity of the contents of the document and the further fact that the CBI itself moved the present proposal on 6.7.17 wherein it has been categorically mentioned that Shri Rakesh Asthana IPS (GJ:1984) is suitable to hold the post of Special Director CBI and no further verified material has been brought on record, the Committee decided to recommend him for appointment as Special Director, CBI. The Committee has also kept in view the fact that the Vigilance Commission does not take cognizance of complaints received just on the verge of appointments or promotions unless they are proven misconducts. The Committee has also noted the decisions of the Courts in respect of such documents.
Earlier, Bhushan, arguing for nearly an hour, told the bench that Asthana’s name appears in the “Diary 2011” seized in the raid on Sterling Biotech group owned by the Sandesaras, on which the CBI itself has registered two FIRs. The FIRs allege that Sterling Biotech was engaged in the delivery of large payoffs to various individuals and had opened a number of offshore entities and various benami companies in India to further their illegal operations. Therefore, he said, Asthana’s appointment as special director would hamper the functioning and investigation being conducted by the CBI.
Bhushan, who filed an additional affidavit on behalf of the petitioner, Common Cause, disclosed that Asthana’s son, Ankush Asthana, worked with the same Sterling Biotech between 2010-2012, and the pre-wedding party for Asthana’s daughter was held on November 24, 2016, at a farmhouse owned by the Sandesaras.
Further, Asthana has not submitted his property returns for 2016, which is a prerequisite for vigilance clearance required for any empanelment, promotion and so on in the CBI as per DoPT notifications, he told the bench.
The bench will deliver the order in the case on November 28.