11 Unanswered Questions From the CBI vs CBI Fiasco

Three months since the CBI vs CBI saga began, concerns remain over the way it’s been handled by the Centre and SC.

(From L-R) CJI Ranjan Gogoi, former CBI Director Alok Verma and Prime Minister Narendra Modi.

(Photo: Karman Akhter/The Quint)

The CBI vs CBI saga has been a fixture on our newsfeeds ever since an FIR was registered by former Director Alok Verma against Special Director Rakesh Asthana in early October 2018.

What first seemed like just a feud between the two most senior officers of the CBI was transformed into something far more serious (and sinister), when Verma was suddenly divested of his powers in the middle of the night on 23 October, and all the officers investigating Asthana were transferred by the interim director immediately after.

This ‘Night of the Long Knives’, as it has come to be known in some quarters, was widely criticised for the hastiness of the Modi government’s action against Verma, and its apparent failure to adhere to the relevant procedures. Others questioned whether it was appropriate for an officer under a cloud, like Verma, to hold such an important position.

Propriety and the rule of law were in the dock, and so it was no surprise when Alok Verma approached the Supreme Court for relief on 26 October. Unfortunately, the events that have followed, including fractious hearings, reports in sealed covers, the reinstatement of Verma by the judges and then a second removal by the High-Powered Committee, have left us with more questions than answers.

Here’s what we still need to know:

1.

Did the Centre ask the Attorney-General or the Law Ministry for a legal opinion on whether they could take away Verma’s powers without the approval of the High-Powered Committee, before passing its order on 23 October?

Section 4B(2) of the Delhi Special Police Establishment Act clearly says that the CBI director cannot be ‘transferred’ without the previous consent of the same committee which appoints the CBI director (PM + CJI + Leader of Largest Opposition Party). It was blatantly obvious that divesting Verma of his powers was effectively a transfer and that doing so defeated the purpose of putting safeguards on the CBI director’s position, as the judgment later held.

2.

How did the Centre decide to divest Alok Verma of all his powers solely on the basis of the recommendations of the CVC, given the CVC only has powers of superintendence over corruption investigations in the CBI, not other matters?

3.

Why did the Supreme Court delay hearing the arguments on the question of the Centre and CVC’s authority to divest Verma of his powers till the CVC enquiry was completed? As the judgment of 8 January recognises, the inquiry was not relevant to this issue, so why not reinstate Verma while allowing the CVC to continue its inquiry?

The main question required only a few days of arguments, which meant the case could have been wrapped up by the end of October itself. Instead, the case was adjourned throughout November, including for a misinterpretation by CJI Gogoi of an article in The Wire, and arguments only wrapped up on 6 December. The judgment was then reserved for another month, even though the legal issue was so limited.

4.

Why did Central Vigilance Commissioner KV Chowdhary approach Alok Verma on 6 October and ask him to drop his investigation into Special Director Rakesh Asthana? Why was this not documented in the CVC’s report to the Supreme Court despite his intimation of the meeting to the CVC enquiry?

5.

Did Justice Patnaik’s report to the Supreme Court mention Verma’s claim that Central Vigilance Commissioner KV Chowdhary had approached him, asking him to drop the case? And did Verma mention the same thing in his reply to the court as well?

The Supreme Court’s judgment makes no mention of this claim, which casts serious doubts on the motivations and integrity of KV Chowdhary. Verma claims he mentioned this in his reply and Justice Patnaik is also supposed to have mentioned this in his report, so it is evident that the judges knew about this issue. This makes their decision to refer the matter to the High-Powered Committee baffling as the only basis for this was the CVC inquiry.

6.

Why did the CVC not record Rakesh Asthana’s statement to them (dated 9 November 2018) in the presence of Justice Patnaik (who had been appointed to supervise the investigation)? Why was this statement only provided to Justice Patnaik one day before the CVC’s report was to be submitted to the Supreme Court?

If Asthana’s complaint and statement were so central to the inquiry,  Justice Patnaik should have been there when Asthana was providing his statement, or at the very least should have had a chance to properly scrutinise it.

7.

Did the CVC’s report to the Supreme Court, submitted in a sealed cover on 12 November, rely on any evidence apart from Rakesh Asthana’s complaint and subsequent statement, in making its findings against Alok Verma? Is Justice Patnaik incorrect in saying that there was no evidence of corruption against Verma apart from Asthana’s complaint?

These questions are important since Asthana’s complaint and statement were, according to Justice Patnaik, essential to the CVC’s findings against Alok Verma. If this was all that there was against Verma, it would be strange for the CVC to find that allegations of corruption had been substantiated – back when Asthana’s appointment had been challenged, the CVC had said mere complaints weren’t enough to take action against an officer.

If the Supreme Court was aware that there was no other evidence against Verma, it also makes their decision to refer the matter to the High-Powered Committee strange, since this would mean they disbelieved what Justice Patnaik said – which surely should have been noted in the judgment.

8.

Did the judges provide Alok Verma with a copy of Justice AK Patnaik’s report, along with the CVC report submitted on 12 November? If not, why was this not provided to him?

9.

Why didn’t the three-judge bench forward Justice Patnaik’s report to the High-Powered Committee along with the CVC report, given the relevance of Justice Patnaik’s observations to the value of the CVC’s findings? If they did, then is Mallikarjun Kharge incorrect in claiming that Justice Patnaik’s report had not been provided to the committee?

10.

Why did the High-Powered Committee not allow Alok Verma a chance to defend himself against the CVC report? Would the decision not to grant a hearing to him have been different if they had had access to Justice Patnaik’s report?

Since the CVC report was so vital to the case, and was the basis for the High-Powered Committee’s decision, it was only fair that it be read together with the views of Justice Patnaik, who had supervised the CVC enquiry. This was even more important since he had found the evidence to be insufficient.

And yet CJI Gogoi and his bench do not seem to have ensured it was submitted to the committee, or even provided to Alok Verma. This appears to be a serious lapse on their part.

11.

Why were all the officers investigating Rakesh Asthana, including AK Bassi and ML Sinha, transferred to posts outside Delhi? And will the investigation into Asthana continue?

The CVC did not return any adverse findings against the officers who were investigating Asthana, which makes their transfers, including Bassi’s punishment posting to Port Blair, look like a hatchet job, but doesn’t have any justification.

The Delhi High Court refused to quash the FIR against Asthana, so the investigation into him must continue, but with the investigating team entirely changed, this raises serious questions about whether this will be done properly.