Apex court again

This is not the first time the Supreme Court has intervened to secure the autonomy of the CBI. The earlier instance was two decades ago, in the Jain hawala case.

Justice J.S. Verma, former Chief Justice of India. He rendered the judgment in the Vineet Narain case, concerning allegations of corruption against high-ranking public officials.

The ongoing crisis in the CentralBureauof Investigation (CBI), wherein the Centre has been accused of divesting its Director of his powers illegally and thereby compromising its autonomy, can well be understood if one revisits another crisis in the 1990s, which culminated in the Supreme Court’s judgment in Vineet Narain and others vs Union of India . The 1997 judgment was rendered by Cheif Justice J.S. Verma on behalf of a bench that included Justices S.P. Bharucha and S.C. Sen.

It is not unusual to hear complaints of inertia against the CBI in matters where accusations are made against high dignitaries. Established under the Delhi Special Police Establishment (DSPE) Act, 1946, the premier investigative agency in the country probes corruption-related offences connected with the Central government and State governments and, in certain cases, violation of human rights. In the 1991 Jain hawala case, the CBI seized two diaries in the course of interrogation of two alleged Jammu and Kashmir militants and raids on the premises of an industrialist, Surendra Kumar Jain, and his brothers. The diary entries pointed to detailed accounts of vast payments made to persons identified only by initials that were believed to be high-ranking politicians and civil servants.

When the case reached the Supreme Court through a public interest litigation petition in 1993, the court was confronted with a dilemma on whether it was within the domain of judicial review to activate the investigative process, which was under the control of the executive. The court was convinced about the need to intervene in the interest of probity in public life and in order to ensure an effective mode of enforcement of accountability in public life. The need to insulate the CBI from any extraneous influence led the court to examine its structure and consider the necessary steps to ensure its reform. The court also found the need to lay down permanent measures in order to avoid ad hoc measures being taken to influence the results in a given case. The basic postulate of equality “Be you ever so high, the law is above you” guided the court in this endeavour.

The gist of the allegations in the writ petitions before the Supreme Court then was that government agencies such as the CBI and Revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the “Jain diaries”; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through “hawala” transactions; and that this had disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration.

The CBI was accused of failing to investigate influential and powerful persons involved in the case with a view to protecting them. The matter also brought into focus a nexus between crime and corruption at high places, which posed a serious threat to the integrity, security and economy of the nation. It was held before the court that probity in public life, the rule of law and the preservation of democracy required government agencies to be compelled to perform their legal obligations duly and to proceed in accordance with the law against every person involved, irrespective of his or her position in the political hierarchy. Taking into consideration the direction in which the investigations were heading, the court found it necessary to direct the CBI not to report the progress of the investigations to the persons occupying the highest office in the political executive but to the court itself so as to eliminate bias and to ensure objectivity. This required “continuous monitoring” of the case through what the court described as “continuing mandamus”.

The paradox of the hawala case was that the investigation itself did not achieve the desired outcome. The diary entries were declared inadmissible evidence during the trial, leading to the collapse of the charges against the influential persons in public life. But the legal reform that the court introduced to ensure the CBI’s autonomy survived, thus contributing to the organisation’s credibility and image.

First and foremost, the court directed that the Central Vigilance Commission (CVC) be given statutory status. Selection for the post of the Central Vigilance Commissioner, the court directed, must be made by a committee comprising the Prime Minister, the Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The CVC, the court held, shall be responsible for the efficient functioning of the CBI. While the Centre shall remain answerable for the CBI’s functioning, in order to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning, the court held.

The CBI was thus asked to report to the CVC about cases taken up by it and about their progress. The CVC was directed to review the progress of all cases moved by the CBI for sanction of prosecution of public servants that lay pending with competent authorities, especially those in which sanction had been delayed or refused. More importantly, the Centre was directed to take all measures necessary to ensure that the CBI functioned effectively and efficiently and was viewed as a non-partisan agency.

Recommendations for appointment as CBI Director, the court held, shall be made by a committee headed by the Central Vigilance Commissioner and having as its members the Home Secretary and the Secretary (Personnel). The views of the incumbent Director shall be considered by the committee for making the best choice, the court held. The committee shall draw up a panel of Indian Police Service officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work, the court added. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the selection committee. If none among the panel was found suitable, the reasons shall be recorded and the committee be asked to draw up a fresh panel, the court clarified.

More significantly, the CBI Director shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure, the court held, that an officer suitable in all respects was not ignored merely because he had less than two years to superannuate from the date of his appointment. The transfer of an incumbent CBI Director in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the selection committee, the court underlined.

The CBI Director shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the CBI Director with regard to an investigation team’s head should be for cogent reasons and for improvement in investigation, and the reasons for it should be recorded, the court emphasised.

Selection/extension of tenure of officers up to the level of Joint Director shall be decided by a board comprising the Central Vigilance Commissioner, the Home Secretary and the Secretary (Personnel), with the CBI Director providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with the final approval of the board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the ACC for decision, the court directed.

The Vineet Narain judgment, delivered on December 18, 1997, did not immediately mean full autonomy for the CBI. The Centre first asked the Law Commission for a report. Then it promulgated the CVC Ordinance in August 1998. But the CVC Bill, 1998, lapsed because of the dissolution of the Lok Sabha in April 1999. This was replaced by another Ordinance and a Bill, which was referred to a Joint Parliamentary Committee. This committee prepared a draft Bill, which the Lok Sabha passed on February 26, 2003.

‘Single Directive’

The CVC Act retained the concept of Single Directive, which the Supreme Court had disapproved in Vineet Narain . Under this, the CBI was prohibited from undertaking any inquiry or investigation against any officer of the rank of Joint Secretary and above in the Central government, including those in public sector undertakings and nationalised banks, without the prior sanction of the head of the Ministry or Department.

A three-judge bench of the Supreme Court struck down this Single Directive as being arbitrary and violative of the guarantee of equal treatment and equal protection of the law under Article 14 of the Constitution. What it struck down, however, was only an executive direction. This was brought back in the CVC Act. In 2014, a Constitution Bench of the Supreme Court struck down the Single Directive clause in the CVC Act, which required the CVC’s approval before initiating even an inquiry into complaints of corruption against senior-level civil servants.

As the Supreme Court is set to examine the merits of the petitions challenging the Centre’s decision to send CBI Director Alok Verma on leave, it is likely to scrutinise the Centre’s conduct in the whole controversy in the light of the principles laid down in the Vineet Narain case and in subsequent judgments.