Credibility crisis

Published : Nov 08, 2018 12:30 IST

JUSTICE R.M. LODHA, the former Chief Justice of India, will be remembered for his ready wit and aphorisms that made hearings in his court lively and engaging. One of his spontaneous observations in the course of a hearing relating to the coal block scam in 2013 was that the CBI was behaving like a caged parrot that speaks its master’s voice. The phrase “caged parrot” has since remained a standard expression to describe the CBI’s loss of independence.

Justice Lodha berated the agency for its failure to show spine, and indicted the then UPA government at the Centre for making major changes in the CBI’s investigation report on the scam. The then Prime Minister, Manmohan Singh, was in charge of the Coal Ministry when several coal blocks were awarded to private firms, many of them with dubious credentials. Allegations of crony capitalism surfaced, making it imperative to order an investigation by the CBI. But when the court found that the CBI was consulting suspects while preparing its investigation report, the three-judge bench led by Justice Lodha expressed its serious disappointment with the line of its inquiry.

Although a five-judge Constitution Bench in 2014 reiterated the CBI’s independence by striking down the Single Directive clause in the Central Vigilance Commission Act, it appears that little has changed on the ground. In November 2014, the then CBI Director, Ranjit Sinha, was directed by the Supreme Court to recuse himself from a probe into the 2G scam. A subsequent inquiry found substance in the allegations that he had abused his official position and met many accused in CBI cases at his residence.

Sinha’s predecessor, A.P. Singh, also suffered the taint of impropriety, with the agency alleging that the controversial meat exporter Moin Qureshi used his proximity to him to claim that he could settle CBI cases in return for money. Satish Babu Sana was one such businessman who allegedly paid money to Qureshi to settle cases against him. He is a complainant against Rakesh Asthana, the CBI’s Special Director.

Political influence allegedly was behind the CBI’s downgrading of its Lookout circular (LOC) against the wilful defaulter and liquor baron, Vijay Mallya, who fled to the United Kingdom on March 2, 2016.

In December 2016, Asthana, who was then the CBI’s Additional Director, became its Acting Director under dubious circumstances. The then Special Director, Anil Sinha, who was to retire in two days, was transferred to the Home Ministry. The CVC gave its approval without questioning the reasons for shifting him. Anil Sinha, according to reports, was a frontrunner for the Director’s post and, if appointed, he could have continued for two years even after retirement. The selection committee meeting held subsequently made Alok Verma the Director and Asthana was accommodated as Special Director in view of his proximity to the powers that be. The committee comprises the Central Vigilance Commissioner, two Vigilance Commissioners, the Union Home Secretary and the Secretary of the Department of Personnel and Training.

The committee recommended Asthana for appointment as Special Director of the CBI, despite Alok Verma submitting a secret note detailing links between Asthana and some companies under investigation for money laundering. The committee disregarded the CBI Director’s concerns that the entries in a 2011 diary seized from one such company, Sterling Biotech, had mentioned Asthana’s name. Yet, the committee defended its recommendation saying that “the entries…relate to one Rakesh Asthana…and there is no finding in these papers that the person mentioned therein is the same person under consideration for appointment”.

Asthana’s appointment was challenged before the Supreme Court, and Alok Verma’s secret note was cited to argue that his credentials were not impeccable. The Supreme Court bench consisting of Justices R.K. Agrawal and Abhay Manohar Sapre, drawing on the minutes of the selection committee meeting of October 21, 2017, subscribed to the idea that there may actually be two Rakesh Asthanas and that the one mentioned in Alok Verma’s note may not be the same person whose appointment was being challenged. The bench cleared Asthana’s appointment on the grounds that a mere doubt could not block his selection.

The same bench, which later dismissed a review petition in the case, ignored another crucial fact brought before it by Prashant Bhushan, counsel for the petitioner, Common Cause. The CVC wrote to the CBI on November 9, 2017 seeking a report on the “authorship” and provenance of the secret note that Alok Verma had handed over to the committee on October 21, 2017. The CVC’s letter also asked whether any verification had been carried out on the documents referred to in the note by the CBI and requested copies of those documents.

Adding to the irony, the CVC claimed in its press note on October 23, 2018 that it had kept reminding the CBI about its November 9, 2017, letter several times in vain as Alok Verma kept on delaying a reply on the results of an in-house inquiry against Asthana. Alok Verma probably had an excuse not to oblige the CVC on this because the latter had earlier defended Asthana’s appointment as Special Director despite his expressing concerns in a secret note. The CBI Director was a special invitee to the meeting. With Asthana continuing as Special Director, a fair internal inquiry against him was not possible, and this apparently did not register on the CVC.

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