Five Burning Questions for the Supreme Court in the CBI Case

As long as these questions remain unanswered, the CBI is unlikely to ever be insulated from political interference or be autonomous and effective in its functioning.

On Tuesday, the Supreme Court will hear CBI director Alok Verma’s petition challenging his midnight ouster for the fourth time within a month. Strange as it may sound, court proceedings so far have focused more on investigating the charges against Verma rather than addressing the legal questions his petition poses. It needs no elaboration that the Supreme Court is supposed to decide legal and constitutional matters, instead of investigating corruption charges.

Verma’s petition pointed out three things:

1. That his ouster violated the Delhi Police Special Establishment (DPSE) Act of 1946, which secures the CBI director’s tenure at two years (his two year tenure runs into January, 2019);

2. The orders bypassed the mandate given by law to a committee of the Prime Minister, Chief Justice of India and Leader of Opposition for the appointment or transfer of the CBI director and;

3. The government’s actions undermine CBI’s autonomy and independent functioning.

In fact, five questions cry out for the Supreme Court’s attention.

The first and most critical question is, of course, on the legality of the Central government’s order ousting Verma. This act violates the guarantee of tenure mandated by the apex court in the Hawala judgement of 1997, which found its way into the DPSE Act. The matter did not find even a mention in the court’s interim order of October 26.

Also read: Exclusive: CBI Director Alok Verma’s Responses to CVC Put Modi Government in the Dock

Back in the time of the Hawala scam in the 1990s, the apex court expressed its serious in protecting the two-year tenure of a CBI director, as part of an arrangements to secure autonomy of CBI and insulate it from government interference. Consequently, it provided for transfer within the tenure only “in an extraordinary situation” with the “approval of the selection committee”.

The second critical question is on the legality of M. Nageshwar Rao’s appointment as interim director: was the due process mandated by the Hawala judgement and DPSE Act followed? The apex court’s interim order is a silent on this too. The established legal process, as per the Hawala judgement and DPSE Act, is for a committee led by the Central Vigilance Commissioner – with Vigilance Commissioners, Union Home Secretary and Union Secretary (Personnel) as its members – to draw up “a panel” of IPS officers on the “basis of their seniority, integrity, experience in investigation and anti-corruption work” and then recommend names to the central government. Was this process followed? If so, how did a relatively junior officer, Nageshwar Rao, holding the post of joint director in the CBI  – with corruption charges against him being probed by the CBI itself – get selected?

Mediapersons outside the CBI headquarters in New Delhi, on October 24, 2018. Credit: PTI/Ravi Choudhary

After the Lokpal and Lokayuktas Act of 2013, came into being, the ‘selection committee’ now comprises of the Prime Minister, Chief Justice of India and Leader of Opposition. Did this committee meet to approve Rao’s appointment? There is no indication of this.

Intrinsically associated with these is the third critical question: why has the Lokpal not been instituted yet? The law was notified in January 2014 – more than four-and-half years ago. The Lokpal was conceived as the apex anti-corruption watchdog after a long and nation-wide political battle led by Anna Hazare and Arvind Kejriwal, in which the BJP and its associate organisations played active and critical roles. In fact, a great deal of credit for the BJP’s massive mandate in 2014 goes to this anti-corruption movement. In spite of the repeated prodding and rebuke from the apex court, the Lokpal is nowhere to be seen.

The fourth critical question is: how was Verma, with no experience in the CBI or anti-corruption – as alleged in the dissenting note of the selection committee member Mallikarjun Kharge – selected? Who drew up the list and who were the other officers on that list?

The case of CBI special director Rakesh Asthana is even more curious. His promotion as special director was not only opposed by Verma in writing but also challenged in the apex court. This was an unusual case as he was being probed in a corruption case by the agency itself while being promoted. Though it was dismissed by the court then, the situation is different now that the CBI has filed an FIR against him – which was apparently the provocation for the mid-night coup.

While the CVC is probing the corruption charges alleged against Verma at the apex court’s prompting, what is the status of the corruption case against Asthana? There is no word on it yet.

Also read: CBI Officer Investigating Rakesh Asthana Case Posted to the Andamans With Immediate Effect

The fifth and final question is: why do the legal and administrative arrangements under which the CBI is functioning continue to be anomalous?

There are three laws governing the CBI’s functioning – the CVC Act of 2003, DPSE Act of 1946 and Lokpal and Lokayuktas Act of 2013. These laws set out two different selection committees for appointing the CBI director. There are different arrangements for superintending CBI. As per the existing DPSE Act, it is the CVC which is supposed to have the superintendence power over it. The Lokpal law also provides superintendence over the CBI. But both have superintending powers only in the cases being referred to it. The power “in all other matters” rest with the Central government – which is a clear violation of the Hawala judgement.

The multiplicity of laws regulating the CBI has created its own complications. It is no longer clear who really runs the CBI.

As long as these questions remain unanswered, the rot in the CBI will continue to fester. Consequently, it may never be insulated from political interference or be autonomous and effective in its functioning – the very ethos of the Hawala judgement. One hopes the Supreme Court will find time to address these issues.

Prasanna Mohanty is a senior journalist based in New Delhi.