Court reinstates Alok Verma as CBI Director, but curbs his powers

Alok Kumar Verma

The Supreme Court bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph on Tuesday restored Alok Kumar Verma as Director of the Central Bureau of Investigation (CBI) but restrained him from exercising his powers fully until the committee which selected him meets within a week to consider and decide the matter. The committee comprises the Prime Minister, the Leader of the Opposition and the CJI.

The bench relied on the clear legislative intent to ensure complete insulation of the office of the Director, CBI, from all kinds of extraneous influences as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.

Section 4B(2) of the Delhi Special Police Establishment (DSPE) Act states that the CBI Director shall not be transferred except with the previous consent of the committee, referred to in sub-section (1) of Section 4A. Section 4B, including sub-section (2) thereof, of the DSPE Act, were brought in by the Central Vigilance Commission (CVC) Act (Act No.45 of 2003).

If the legislative intent would have been to confer in any authority of the state a power to take interim measures against the Director, CBI, thereby affecting his functioning, surely the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted, the bench held.

If the word “transferred” has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey, and on that basis the requirement of “previous consent of the committee” is understood to be only in such cases, that is, purely of transfer, such an interpretation would be self-defeating and would clearly negate the legislative intent, the bench ruled.

“In such an event it will be free for the state authority to effectively disengage the Director, CBI, from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest,” the bench reasoned.

The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity, which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended. Such intendment would require all authorities to keep away from intermingling or interfering in the functioning of the Director, the bench made it clear.

The judgment, authored by the CJI, observed:

“In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament.”

The bench added:

“This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feel fortified in saying that the status of the committee having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013, it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament ....”

Dwelling on the relevance of Sections 14, 15 and 16 of the General Clauses Act, 1897, so as to confer a power in the Central government to pass the impugned orders, including the order of appointment of an acting Director of the CBI, the bench said they had no application in the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the provisions of the DSPE Act.

CVC report remains in sealed cover

The court had kept the report of the inquiry by the CVC against Verma in a sealed cover on the understanding that it would be made public only if inevitable and that too in the event of a negative decision on the jurisdictional question. “The inherent limitation in such an exercise, if at all it is to be undertaken, is another inhibiting factor. Be that as it may, such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue”, the bench said justifying its decision not to divulge the contents of the sealed cover.

The court then set aside the order of the CVC and the Centre divesting the powers, functions, duties, supervisory role, etc. of Alok Kumar Verma as Director, CBI, and entrusting M. Nageshwar Rao, Joint Director, CBI, with the same.

The court then asked the committee under Section 4A(1) of the DSPE Act, 1946, to consider the matter at the earliest within a week from today. The court made it clear that the issue of divestment of power and authority of the Director, CBI, is still open for consideration by the committee and, therefore, directed Alok Kumar Verma to cease and desist from taking any major policy decisions until the decision of the committee permitting such actions and decisions. The bench confined the role of Alok Verma during the interregnum to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications.

The bench asked the interveners in the case and the officials of the CBI aggrieved with the transfer orders of the Centre, in the wake of the divesting of powers of Alok Kumar Verma, to avail themselves of appropriate remedies to challenge them.

It remains to be seen whether the High Powered Committee, scheduled to meet and discuss the issue within a week, lets Alok Kumar Verma to exercise his full powers, before his tenure ends shortly.