The great ruckus that blew open the ramparts of India’s premier institutions over the last few days has embroiled the debate over CBI’s mode of functioning, its autonomy and adherence to rule of law. The latest Verma-Asthana spat, which started from CBI Director Alok Verma ordering probe against Special Director Rakesh Asthana in the alleged Moin Quereshi bribery case, where from the records of the diary it was found out that Rs. 3 Crore was being given to Asthana for dismissing the case against Quereshi. In pursuit of the Verma’s action, Asthana leveled serious charges against Verma of not being diligent and interfering in its working. The interference of Central Government in the current spat by forcibly sending CBI director on leave and appointing M. Nageshwar Rao as interim CBI Chief is evincing faulty intentions of the government which lacks the valid authority of law.

Why Central Government act lacks valid authority the law?

Before, 1997 the Central Government decides the tenure of the CBI Chief, but due to heavy political interference in the functioning of CBI the Apex Court in Vineet Narain & Ors. v Union of India & Anr. which primarily dealt with the probe into hawala transaction as revealed in the “Jain Diaries” had laid down certain guidelines for the orderly and systematic functioning of CBI.

The Supreme Court in its order had spelled out the process of appointment of CBI Director stating that “recommendations for appointment of the director, CBI shall be made by a committee headed by the central vigilance commissioner with the home secretary and secretary (personnel) as members. The views of the incumbent director shall be considered by the committee for making the best choices”.

Further, it added that “the Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. 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 is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.”

Interestingly, the Court also laid down that “the transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee”, therefore the transfer of Alok Verma is against the court’s order in Vineet Narain’s case, as it strictly requires the approval of the selection committee which was not taken in this matter.

Why Government act to send CBI Chief is illegal?

In Vineet Narain’s matter, the court also specified the tenure of the CBI Director noting that, “the Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.” The bench also held that the transfer would be done in an extraordinary situation when the need arises to undertake more important assignments, and too should have the approval of the Selection Committee.

But contrary to the Court’s ruling, Mr. Verma was sent on forced leave; whose tenure is remaining till January 2019, without the approval of the selection committee, hence the act of removing CBI Chief is illegal and lacks the authority of law.

Is the Central Government claim to remove Mr. Verma is justified?

Soon after the removal of Alok Verma from his office, the Finance Minister Mr. Arun Jaitley came out with explanations for the unseemly midnight coup at the CBI office are unpersuasive. It has said that “it is on the recommendation of the Central Vigilance Commission (CVC), we have decided to send CBI Chief on temporary leave to maintain the fairness and to preserve the highest standard of integrity of the agency”, but antithetical to its averments under section 4B (2) of the Delhi Police Establishment Act, 1946 envisages the consent of the High Powered Selection Committee set up under Section 4A of DPSE Act comprising of Prime Minister, Chief Justice of India and Leader of Opposition (LoP). It is bypassing this committee that the present order of the removal of CBI Chief has been passed by the CVC and the Central Government.

It is also pertinent to mention that the CVC Act doesn’t encompass any provisions which give the institution the power and authority to recommend removal or transfer of the CBI Director except in the matter pertaining to Prevention of Money Laundering Act, which in the current scenario is not the case with Mr. Alok Verma.

What compelled the govt. to oust Alok Verma?

The expeditious midnight ouster of Alok Verma from his office without the consent of collegium comprising of Prime Minister, Chief Justice of India and Leader of Opposition and appointment of Joint Director M. Nageshwar Rao as the interim director of CBI is elucidating agonizing sentiment of the government. The most important reason attributed to the immediate removal of Mr. Verma could be the registration of FIR in the Rafael Scam, which the sources said would have been registered on the day of his expulsion.

The clouds of troublesome over Rafael matter has propelled the govt. to shelter itself, and transfer of Verma could be considered as one of the factors to embrangle the investigation into the controversial Rafael deal. Impromptu appointment of Nageshwar Rao as the interim CBI, who is leveled with serious corruption charges, on which the investigation is in process by CBI itself, with the immediate effect had transferred the officers involved in the investigation into Asthana bribery case and Rafael matter is characterizing the deplorable state of affairs within the country’s premier institution, the manner in which the events have unfolded indicate problems that go beyond just factionalism, and reflected the series of failures by the govt. molding the institution into a “caged parrot”, who only speaks the language of government.

SC restricts the power and authorities of Interim CBI Chief

Clandestine removal of Alok Verma from his office had made him to institute a petition before the Supreme Court challenging the unlawful action of the government and appointment of M. Nageshwar Rao as interim CBI Chief, which upon hearing the petition has asked the interim chief not to take any policy decision pertaining to CBI’s working till the next hearing, the Apex Court also ordered the probe into the mass transfers of CBI officers involved in the investigation of Rakesh Asthana, and also directed the government to submit all the decisions taken by Rao before the court in the sealed envelope.

Author:

Yash Mittal