Back in the cage

THE denouement in the ongoing internal strife at the Central Bureau of Investigation (CBI) has all the trappings of a political potboiler. A couple of days after the Supreme Court reinstated him as Director of the CBI, Alok Verma was, on January 10, shunted out in a 2:1 decision by the High Powered Committee (HPC) comprising Prime Minister Narendra Modi; the leader of the single largest opposition party in the Lok Sabha, Mallikarjun Kharge; and the most senior Supreme Court judge after the Chief Justice of India, Justice A.K. Sikri. Kharge expressed his dissent from the other two.

Justice Sikri was brought in after Chief Justice Ranjan Gogoi recused himself from the committee to avoid a probable conflict of interest. A bench presided by the CJI and consisting of Justices Sanjay Kishan Kaul and K.M. Joseph had, on January 8, reinstated Alok Verma to the post of Director but restrained him from taking any policy decisions until the HPC met within a week to decide his fate in the light of a report on him by the Central Vigilance Commission (CVC). The bench set aside the orders of the CVC and the Union Ministry of Personnel, Public Grievances and Pensions that divested Alok Verma of his powers and appointed M. Nageshwar Rao, Joint Director, CBI, as interim Director. Nageshwar Rao is now back as interim Director until the committee chooses a successor to Verma.

The untenability of the HPC’s decision was underlined by another order pronounced by Justice Najmi Waziri of the Delhi High Court on January 11. He refused to quash the first information report (FIR) in the Moin Qureshi bribery case against CBI Special Director Rakesh Asthana. Asthana’s unverified allegations became the basis for the action against Verma. Justice Waziri directed that both Asthana and Deputy Superintendent of Police Devendra Kumar, who was also implicated in the case, should be investigated for their role within 10 weeks. More important, Justice Waziri recorded that the allegations of mala fides against Alok Verma were not substantiated.

The informant in the case, Satish Babu Sana, had alleged that Rakesh Asthana received a bribe of Rs.2 crore in exchange for a clean chit to him in the investigation of a case relating to the meat trader Moin Qureshi. It was this allegation by Sana that led to the CBI registering the FIR against Asthana. Ironically, the HPC relied on Asthana’s allegation that Sana had bribed Alok Verma as one of the reasons to justify Alok Verma’s transfer from the CBI.

In his six-page dissent note, Kharge argued that Alok Verma should be allowed to complete his two-year tenure and be given an additional 77 days, the time he lost because of the “patently illegal orders of the CVC and DoPT [Department of Personnel and Training] dated October 23, 2018”. He cited the lack of substantial findings in six instances in the CVC report submitted to the Supreme Court. While suggesting that further investigations should continue, he concluded that the allegations against Alok Verma were not on a par with those levelled against Rakesh Asthana and that under the principles of natural justice, the committee should not arrive at a conclusion without hearing Alok Verma.

The HPC gave Alok Verma the rather unenviable post of Director General (Fire Services, Civil Defence & Home Guards). If the grave allegations against him of taking bribe are even prima facie found to be true, they could make it untenable for him to continue as a public servant.

The situation follows the government’s decision to send the top two CBI officers on leave in October after a bitter feud erupted between them, involving allegations of taking bribes. In the Supreme Court, while justifying the Centre’s extraordinary intervention to keep both the officers out of the CBI, Attorney General K.K. Venugopal described their fight as one between Kilkenny cats.

But in acting against Alok Verma, the government overlooked the Supreme Court-mandated immunity from political influence provided to the CBI Director in the Vineet Narain case (1997). It had fixed a minimum tenure of two years for the CBI Director.

In its January 8 judgment, the Supreme Court cited the Vineet Narain judgment and relied on the clear legislative intent in the Central Vigilance Commission (CVC) Act, 2003, to ensure complete insulation of the office of the CBI Director from extraneous influences and to uphold the integrity and independence of the institution of the CBI.

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 HPC. Section 4B, including sub-section (2) thereof, of the DSPE Act was brought in by the CVC Act. In its January 8 judgment, the Supreme Court held that if the legislative intent were to confer in any authority of the state a power to take interim measures against the CBI Director, thereby affecting his functioning, surely the legislation would have contained enabling provisions to that effect and consequently would have been worded differently.

If the word “transferred” has to be understood in its ordinary parlance and limited to mean a change from one post to another, 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, therefore, had to be the role model of independence and integrity, which could only be ensured by freedom from all kinds of control and interference except to the extent that Parliament might have intended, the bench held.

The Supreme Court further 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 flowed from the provisions of the DSPE Act.

The court had kept the report of the CVC inquiry against Alok 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 HPC’s decision to transfer Alok Verma arbitrarily, without a reasoned order, therefore, leaves everyone in the dark about the allegations against him which could affect the institutional integrity and Verma’s probable defence of himself. There is also the question whether he was heard by the HPC, consistent with the principles of natural justice.

Political impact

Although the Centre succeeded in removing Alok Verma as CBI Director, it lost the battle of perception. The narrative of the opposition was that the government had something to hide, given its haste to act against him. Critics say Alok Verma’s removal on the strength of the very CVC report that was the basis for its order that the Supreme Court annulled was proof of Prime Minister Modi’s desperation to get rid of him at any cost.

According to them, this was first reflected in the undue haste with which Alok Verma was sent packing on October 23, 2018, at midnight. It was again on display when, within a couple of hours of the Supreme Court quashing that order, the government rushed with the HPC meeting to oust him once again. While the first time the government bypassed strict compliance of the legal procedure, the second time it flouted the rules of natural justice by not giving Alok Verma a chance to present his case.

The Congress alleged that the tearing hurry to remove Alok Verma was because he was on the verge of ordering a preliminary enquiry (P.E.) in the Rafale case. The needle of suspicion, therefore, served to strengthen Congress president Rahul Gandhi’s oft-repeated jibe against the Prime Minister, “chowkidaar chor hai” (the watchman is the thief).

In the political slugfest between the Congress and Bharatiya Janata Party in the run up to the 2019 general election, this is likely to be a huge moral victory for the Congress, which has levelled serious corruption charges against the Prime Minister himself, especially in the Rafale deal. The advocate Prashant Bhushan, who, along with former Union Ministers Arun Shourie and Yashwant Sinha, petitioned the Supreme Court on the Rafale deal, wondered why Alok Verma was not heard by the HPC since this was the basic prerequisite for the principle of natural justice. “The question that needs to be asked now is what could he have done in just 20 days of his remaining tenure?” he asked.

Said Congress leader and former Union Minister Shakeel Ahmad: “If there was no rush to hide something, then the government would have taken the mandatory route of referring the case to the select committee and wait for its recommendation. But no, it hustled the CVC into giving a report and then hurried with the removal of the Director at midnight. Why was the government so scared that it could not wait for daybreak? What was it that it wanted not investigated?” According to him, the subsequent chain of events substantiates his party’s allegations. Congress leaders say the government’s handling of the CBI has vindicated their stand that the Modi government was bypassing due processes of law to suit its political interest.

They also say that the affidavit filed by Alok Verma in the Supreme Court now acquires tremendous significance as he had alleged that he was being subjected to political pressure and interference and was not allowed to work independently. “This is the first time that the CBI Director was removed in such a manner. The Supreme Court order was a slap on the face of the government, a stern reminder that it should not interfere in the functioning of autonomous institutions,” said the Congress spokesperson Rajiv Tyagi. He said the political discourse now would revolve around whether the CVC had been pressured and should be removed after his role came under scrutiny in the Supreme Court and whether National Security Adviser Ajit Doval, who was reportedly supervising the entire operation, should resign because he breached his jurisdiction. Since the CBI functions under the DoPT, which comes directly under the Prime Minister, senior Congress leaders are categorical that the Prime Minister’s personal responsibility in the botched-up operation cannot be ignored.

Rahul Gandhi, undeterred by Defence Minister Nirmala Sitharaman’s spirited defence of the Rafale deal in Parliament, looked visibly happy after the Supreme Court’s January 8 judgment. He said it was a vindication of his charge that the Prime Minister was personally involved in a corruption case and was trying to thwart an inquiry into the Rafale deal by meddling with the functioning of the CBI. After the HPC’s decision to remove Alok Verma, Rahul Gandhi commented that Rafale was the reason why all this was happening.

His main charge in the Rafale deal is that the Prime Minister bypassed due process to push Hindustan Aeronautics Limited (HAL) out of the deal and forced the Anil Ambani company on Dassault as its offset partner. The Congress party contended that there were documents to prove all this and that the CBI was on the verge of examining these documents when the midnight “coup” happened.