Did the Govt Overstep in Acting Against CBI Director Alok Verma?

What will be the issues before the Supreme Court when it hears the matter on 26 October?

The Centre’s decision to send CBI Director Alok Verma on leave will be contested in the Supreme Court.

(Photo: The Quint)

In an unprecedented move, CBI Director Alok Verma was divested of his functions, powers and duties by the Central Vigilance Commission (CVC) and the central government on Tuesday, 23 October.

Verma approached the Supreme Court on the morning of Wednesday, 24 October, to raise objections to the action against him, and Chief Justice of India Ranjan Gogoi agreed to list it for hearing on Friday, 26 October.

But does Verma have any grounds to challenge any of this?

VERMA’S ARGUMENT

Verma’s petition argues that he cannot be stripped of his powers this way as he has a fixed tenure of two years, which is meant to ensure the CBI’s independence. Even if such action can be taken against him, he argues that only a high-powered committee with the same composition as the one that appointed him – Prime Minister, leader of Opposition (or leader of largest party in Opposition) and Chief Justice of India – can divest him of his powers.

This view has been echoed by lawyers like senior advocate Prashant Bhushan (who is expected to file a PIL on this issue as well) and members of the Opposition like Congress MP Abhishek Manu Singhvi, who have alleged that the government is acting in bad faith.

THE GOVERNMENT’S ARGUMENT

At the same time, Finance Minister Arun Jaitley hit back at these claims, arguing that the decision to send Verma and Asthana on leave was “in accordance with the highest standards of fairness”.

The government has also issued a press release in which they have argued that Verma had not been cooperating with the CVC, asserted that the Centre and the CVC have powers which allow them to take action like this against the CBI Director, and said this state of affairs would continue till the CVC completed an inquiry into the matter.

WHO HAS GOT IT RIGHT?

The short answer is that we cannot be certain just yet, but Verma’s case should just about edge it. Yes, the CVC and the Centre do have powers of superintendence over the CBI as an agency, but this doesn’t change the fact that the law provides safeguards for the post of CBI Director, which cannot be bypassed so easily.

While we wait for the Supreme Court to adjudicate the issue, here’s what you need to know about the law regarding all of this:

Legal Safeguards for Post of CBI Director

The functioning of the CBI is governed by the Delhi Special Police Establishment Act 1946 (DSPE Act). Interference by the central government has long been a concern when it comes to the investigation agency, with former Chief Justice of India RM Lodha going so far as to call the CBI a “caged parrot speaking in its master’s voice”.

These concerns led to the 1997 decision of the Supreme Court in Vineet Jain vs Union of India, which made a number of reforms to the way the CBI would function. One of the key reforms was the creation of a special Selection Committee made up of the prime minister, leader of Opposition and chief justice of India. Section 4A was later added to the DSPE Act to reflect this.

Another important addition was also made to the DSPE Act at that time: Section 4B. This introduced two more important safeguards for the post of CBI Director:

1. According to Section 4B(1), the CBI Director is to have a fixed tenure of two years, notwithstanding anything in the rules which apply to his terms of service.
2. According to Section 4B(2), the Director cannot be transferred without the “previous consent” of the Selection Committee discussed above.

Verma was appointed by a properly-constituted Selection Committee (comprised of PM Narendra Modi, Congress MP Mallikarjun Kharge and then-CJI JS Khehar) in January 2017. Going by the terms of Section 4B(1) of the DSPE Act, this should mean he will remain in his post til January 2019, and cannot be removed in any way till then.

Furthermore, Section 4B(2) means that he can only be transferred at this time by a Selection Committee comprised of PM Narendra Modi, a Congress MP and CJI Ranjan Gogoi.

ARE THERE ANY EXCEPTIONS TO THESE SAFEGUARDS?

The Centre could potentially argue that they have only divested Verma of his powers on a temporary basis and so he has not been transferred or removed from his post.

However, divesting him of all his powers and functions is effectively a removal from his post, or a transfer, regardless of whether this is an interim measure or not. It is difficult to see the Supreme Court accepting such a workaround by the government, as it would defeat the entire purpose of the law on this point.

Even if the government were able to successfully argue that these safeguards don’t apply to the action taken against Verma, they will run into another stumbling block: the rules on suspension of a public servant. Even though the orders passed by the CVC and the Department of Personnel & Training against Verma do not use the term suspend/suspension, there can be little doubt that the orders amount to a suspension.

The Central Civil Services (Classification, Control & Appeal) Rules 1965 govern Verma’s service, including when he can be suspended. According to Rule 10, a public servant can be suspended by:

• their “appointing authority”; or
• an authority to which their appointing authority is subordinate; or
• an authority empowered by the President to discipline them or suspend them.

While the Department of Personnel & Training (DoPT) is the appointing authority for CBI officers generally, the appointing authority for the CBI Director is the special Selection Committee.

The Selection Committee is not subordinate to any other authority, nor is there any other authority empowered by the President to discipline or suspend the CBI Director. As a result, even if we don’t go by the DSPE Act, the orders suspending Alok Verma could only have come from the Selection Committee, not the CVC and not the DoPT.

‘Superintendence’ of the CBI – What Does This Entail?

The orders by the CVC and the Centre divesting Verma of his powers are based on their powers of ‘superintendence’ over the CBI. The orders assert that the CVC is empowered to the supervise the CBI when it comes to offences under the Prevention of Corruption Act (the PC Act), while the Centre has oversight when it comes to all other matters.

This is indeed what is specified in Sections 4(1) and 4(2) of the DSPE Act, and the Central Vigilance Commission Act 2003 (the CVC Act).

But does this power of superintendence include the power to divest the CBI Director of his powers?

This is something which the Supreme Court will have to clarify when dealing with this case, because this issue has not specifically been addressed in existing cases and is not expressly spelled out in the legislation. For the Centre and the CVC to make this argument is therefore neither dishonest nor disingenuous.

Given the specific safeguards for the CBI Director, however, it is difficult to see the court accept that the Centre (or the CVC for that matter) could have this kind of influence over him. Indeed, if we look at the aforementioned Vineet Narain judgment, which first introduced the concept of superintendence of the CBI by the CVC, there is no mention of this kind of power.

Other Supreme Court decisions have also continually emphasised the need to insulate the CBI from government interference, so it would seem counter-productive if the law can be so easily interpreted to give the Executive the power to defang the CBI Director without any real scrutiny.

What About the Allegations Against Verma?

It would not be wrong to say that the objections to the action against Verma appear to be of a procedural nature, rather than countering the actual grounds on which the CVC decided to take action against him; the Centre’s order was also heavily reliant on what the CVC said.

Verma’s petition, despite asking for both orders to be quashed, does not address the substantive claims in the CVC order, key among which are the following:

• The CVC claims that he did not cooperate with the Commission when it asked for assistance with its inquiries into a complaint of corruption received by the CVC on 24 August 2018, which raised serious concerns about Verma.
• It also claims that the CBI had not sent a report on the allegations raised by Verma against Rakesh Asthana in October 2017 despite repeated requests, and that the FIR registered against Asthana ran contrary to CVC communications to Verma.

However, Verma has raised a salient point when it comes to these issues. According to his petition, the CVC and Centre’s orders on these issues were passed without adverting to the principles of natural justice – crucially, the right to be heard (the orders say subsequent actions will be undertaken keeping these principles in mind, but that doesn’t save the original orders from irregularity). It is indeed remarkable that punitive action was taken against Verma without asking him to explain his actions.

It is in fact appropriate that Verma isn’t arguing the substantive issues at this point, since there will be a time and place to do that, once the correct procedures are followed. Of course, while it does not appear at present that the Supreme Court will be hearing arguments relating to Asthana’s allegations against Verma and vice versa, this should not mean any lack of excitement, since the CBI Director makes numerous allusions to government interference in his petition.

At the end of the day, the move to divest Verma of his powers, coming so soon on the heels of the move against Asthana, and with its disregard for the correct procedures, just doesn’t smell right. Regardless of whatever the CVC believes Verma has done, the safeguards are important and cannot be ignored by the Executive – to do so would make a mockery of the rule of law, and signal a dangerous institutional failure.

Over to the Supreme Court, then.