At a crossroads

The Supreme Court’s intervention to monitor the resolution of the CBI’s internal crisis is a defining moment in the agency’s history.

Published : Nov 08, 2018 12:30 IST

Mediapersons outside the CBI headquarters in New Delhi on October 24.

Mediapersons outside the CBI headquarters in New Delhi on October 24.

For many, it would appear incredible that the Central Bureau of Investigation (CBI), the premier investigative agency in the country, has been on virtual life support since 2013, when the Gauhati High Court declared its formation unconstitutional, leaving its very legal status untenable.

In the case before the High Court, the petitioner, Navendra Kumar, who was facing the CBI’s charge sheet in a corruption case, contended that the CBI was not a statutory body as it had been constituted under an Executive Order/Resolution No.4/31/61-T dated 1-04-1963, of the Union Ministry of Home Affairs although police is a State subject.

Under Article 21 of the Constitution, no person shall be deprived of his life and liberty except according to the procedure established by law. As the registration of first information reports (FIRs), arrest of persons, investigation of crimes, filing of charge sheets and prosecution of offenders, and so on would offend the fundamental rights guaranteed under Article 21, the CBI, which was not formed as a result of any law, could not exercise these powers, the petitioner convincingly contended before the High Court.

The High Court concluded that as the Resolution did not refer to any provisions of the Delhi Special Police Establishment (DSPE) Act, 1946, as the source of its power, the CBI could not be said to have been constituted under the Act. The Resolution constituting the CBI was thus set aside.

Almost immediately, the Supreme Court granted a stay on the High Court order and admitted the Centre’s appeal against it for hearing. The appeal has been pending, with the stay continuing since then. The interim stay is unlikely to be vacated by the Supreme Court in the near future, while there has been no plea at the Bar either to hear the merits of the appeal on priority or to vacate the stay. Nevertheless, a stay by the apex court on the operation of the High Court’s order is tantamount to “life support” for the organisation, as the vacation of the stay, for whatever reasons, would mean its abrupt end.

The current crisis within the CBI, triggered by the Centre’s unprecedented intervention to force its Director, Alok Verma, and Special Director, Rakesh Asthana, to go on leave and appoint an interim Director until the completion of the Central Vigilance Commission’s (CVC) inquiry into allegations against them, perhaps threatens to inflict as much damage to the organisation as an abrupt vacation of the stay on the High Court’s order by the apex court.

The question asked in the aftermath of the latest midnight operation by the Centre against the CBI’s top brass is whether the Centre felt free to do so only because of the absence of a strong legal foundation for the CBI.

Perhaps realising this, the Supreme Court bench of the Chief Justice of India, Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph, on October 26, sought to neutralise the Centre’s decision through its specific directions to govern the interim arrangement. Thus the bench directed the CVC to complete its inquiry into the CBI Director within two weeks under the supervision of the retired Supreme Court judge Justice A.K. Patnaik. Simultaneously, the bench restrained the interim Director, M. Nageshwar Rao, from taking any policy or major decisions and directed him to perform only the routine tasks that are essential to keep the CBI functional. The bench also directed the CBI to furnish a list of all the decisions taken by Rao after October 23 in a sealed cover for its review. But the issue involves questions that are beyond apparent legal transgressions. On October 23, the CVC issued a detailed press note explaining its recommendation to the Centre to send the CBI’s Director and Special Director on leave, pending the results of an inquiry against them. The CVC, as the note reveals, received a complaint forwarded to it by the Cabinet Secretary on August 31. The note kept the identity of the complainant confidential even while making its substance public.

It alleged that one Satish Babu Sana paid Rs.2 crore as bribe to the CBI Director to avoid further interrogation/action in the case relating to Moin Qureshi and others. Secondly, it was alleged that the CBI Director had made undue interference to exclude one of the main suspects, Rakesh Saxena, in a case relating to the Indian Railway Catering and Tourism Corporation (IRCTC). It was also alleged that the CBI Director had given instructions to the Joint Director, CBI, Vineet Vinayak, to not conduct a search at the premises of the former Bihar Chief Minister and the leader of the Rashtriya Janata Dal, Lalu Prasad. Vinayak, the note further alleged, was later permitted by the CBI Director to conduct the search at Lalu Prasad’s premises.

The CVC’s note claimed that the CVC had served three separate notices on the CBI Director to produce files and documents before the Commission through authorised officials on September 14, 2018. In response, the CBI Director sought to know the identity of the complainant. He also requested that the CVC consider Asthana’s complaint as a “desperate attempt by a tainted officer to intimidate the officers of the various ranks in the CBI”.

The CVC did not find the CBI Director’s attempt to tarnish the image of Asthana convincing and kept asking Verma to submit the results of his internal inquiry against him. The CVC disclosed that Asthana had made several oral and written representations alleging that Verma was prejudiced and biased against him and had tried to implicate him in certain cases, and requested that a special investigation team comprising officers other than Verma and A.K. Sharma, Joint Director, be constituted to supervise the investigation of six cases mentioned by him.

Meanwhile, the CVC extended the deadline for the submission of relevant documents in the Moin Qureshi case by the CBI to October 22, even as it refused to reveal the complainant’s identity. On October 15 the CBI registered an FIR under the Prevention of Corruption Act, as amended in 2018, on the complaint of Satish Babu Sana, a resident of Hyderabad, who is one of the accused in a case being investigated by Asthana. Asthana claimed to the CVC that he had sought permission to arrest Sana but Verma did not grant it. Subsequently, Devinder Kumar, Deputy Superintendent of Police investigating the case, was subjected to searches and arrested. Devinder Kumar, too, sought the CVC’s intervention to protect his reputation from being tarnished by the CBI through the searches and the arrest. In its note, the CVC accused Verma of non-cooperation and non-compliance with its directions and wilful obstruction in its functioning by not submitting the required documents in time.

The CVC claimed that Section 4(1) of the DSPE Act vests the power of superintendence upon the DSPE with it. Sections 8(1)(a) and (b) of the CVC Act also empowers the Commission to exercise superintendence over the functioning of the DSPE and to give directions to it. The CVC, therefore, justified its direction to divest Verma of any function, power, duty and supervisory role in respect of cases already registered and/or required to be registered and/or being investigated under the provisions of the PCA until this interim measure was varied/modified/vacated.

The CVC noted that an environment of hostility and faction feud had reached its peak in the CBI, leading to a potential loss of reputation/credibility of the organisation. The grave allegations of corruption by senior functionaries of the CBI against one another, also widely reported in the media, had vitiated the official environment, the CVC claimed, and added that it had also vitiated the working environment in the organisation, which had a deep and visible impact on the other officers.

The CVC promised that due process of law in compliance with the principles of natural justice would be observed before giving finality to the interim measure referred above and also during the decision-making process.

Meanwhile, Asthana obtained interim protection from arrest from the Delhi High Court following the registration of an FIR by the CBI against him. The High Court extended him protection up to November 14, while granting Devinder Kumar bail. Kumar faces the allegation that he fabricated a statement from a key witness to implicate Verma in the bribery case.

The investigating officer in the case against Asthana, A.K. Bassi, who is considered close to Verma, was transferred to Port Blair. Bassi told the Supreme Court on October 30 that he apprehended a threat to his life and alleged tampering with evidence by his successor, Satish Dagar, in order to prove Asthana innocent. According to the FIR, Kumar had forced Sana to pay a bribe of Rs.5 crore in order to get an acquittal in the case.

Concerns that the CBI was trying to protect Asthana were also expressed to the Delhi High Court by its Additional Superintendent of Police, Surinder Singh Gurm, in a separate petition.

Two petitions

The Supreme Court is seized of two petitions challenging the Centre’s midnight coup against the CBI. The first, filed by Verma himself, accused Asthana of being complicit in concocting evidence to impugn his reputation. Besides, Verma claimed that Section 4-B of the DSPE Act secures a two-year period of tenure for the Director, notwithstanding anything to the contrary. “This is precisely to secure the independence of the CBI, but the same has been violated by the impugned orders,” he told the Supreme Court. Verma also pointed out to the court that Section 4-A of the Act provided for constituting a high-powered committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India for the purpose of appointing the Director of the CBI, and under Section 4 B(2), to grant previous consent for his transfer. “The exercise of power by the impugned orders has been to bypass the mandate of the committee,” he told the court.

It was a settled proposition of law that what could not be done directly was not permissible to be done indirectly, he said. Therefore, sending Verma on forced leave for an indefinite period of time was no different from removing him from the post before the expiry of the fixed tenure of two years. If the Centre’s decision was endorsed, the requirement of fixed tenure for a director would become meaningless, he argued.

In Verma’s view, the present actions of the Centre give credence to the requirement that the CBI be given independence from the Department of Personnel and Training, which seriously hinders its independent functioning. In another petition, the non-governmental organisation Common Cause sought the quashing of the CVC’s order of October 23 “illegally divesting Verma’s duties for mala fide reasons”. It also sought the quashing of the order dated October 23 issued by the Appointment Committee of Cabinet handing over the charge of the CBI Director to Nageshwar Rao, in gross violation of the law. In addition, Common Cause sought a direction for the removal of Asthana from the CBI in the light of the serious corruption cases pending against him, in order to ensure institutional integrity. It also sought the setting up of a Special Investigation Team to look into the recent unprecedented events and investigate the allegations of corruption against senior officials of the CBI.

While concluding its order on October 26, the Supreme Court made it clear that its entrustment of supervision of the ongoing inquiry by the CVC to a former judge of the Supreme Court was a one-time exception which was felt necessary in the “peculiar facts of this case and should not be understood to be casting any reflection on any authority of the Government of India”.

For those following the controversy, however, it is clear that the role of the CVC, like that of the CBI, is equally under a cloud, and therefore its ongoing inquiry against Verma will be vetted by the Supreme Court through Justice Patnaik for its omissions and commissions. Incidentally, Justice Patnaik was part of the five-judge Constitution Bench that quashed the Single Directive clause in the CVC Act in 2014 to ensure the CBI’s autonomy. The Supreme Court’s choice of Justice Patnaik for the supervisory role in this case, therefore, sends a strong message that it is serious about restoring the CBI’s institutional integrity.

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