SC Reinstates Alok Verma as CBI Director: All You Need to Know

Here is all you need to know about the case.

The Supreme Court on Tuesday, 8 January, reinstated CBI Director Alok Verma, setting aside the Centre and Central Vigilance Commission (CVC) order divesting him of his powers. However, Verma cannot take any major policy decisions till the CVC inquiry is over. With this verdict, the apex court has also set aside the appointment of Nageshwar Rao as the interim CBI chief.

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Why Was This Matter Taken to the Supreme Court?

Verma had been stripped of his powers, functions and duties on 23 October 2018 in an unprecedented late-night move by the Centre and the CVC. The reasons for the action against him were ostensibly his failure to cooperate in a CVC probe against him, and the escalating spat between him and Special Director Rakesh Asthana. Similar orders stripping Asthana of his powers were passed on the same day.

Verma challenged the orders on the basis that his position as CBI Director is protected by legal safeguards (including a fixed two-year tenure) to ensure the autonomy of the investigating agency.

He argued that what had been done to him was effectively a transfer, which, according to the Delhi Special Police Establishment Act (which governs how the CBI operates), could only be done with the previous consent of the same special committee which had appointed him.

Since the special committee (CJI + PM + Leader of Opposition/Leader of Largest Opposition Party) had not consented to the orders of the Centre and CVC, he argued that the orders were void.

The Centre and CVC instead argued that they had not, in fact, transferred Verma, and that they were entitled to take this action under their powers of superintendence over the CBI under the DSPE Act.

The issue before the court was, therefore, simply whether the action taken against Verma was allowed or not.

What Did the Supreme Court Do?

The Supreme Court delayed hearing the issue for over a month after its first hearing on 26 October, first asking the CVC to submit an inquiry report within two weeks in a sealed cover, then asking Verma for his reply to the report, and then taking umbrage over the media reporting in the case.

When proper hearings finally resumed in early December, the court ended up returning to the simple question of whether or not the Centre and CVC had the authority to divest Verma of his powers. It reserved its judgment on 6 December.

The crux of the apex court’s judgment dated 8 January 2019, is as follows:

• There are special protections in place for the CBI director’s post, originating with the Vineet Narain & Ors vs Union of India judgment of the Supreme Court, the motive of which was to insulate the CBI director from any actions that might be taken by the government to interfere with the CBI’s functioning.
• This was reflected in Section 4B(2) of the DSPE Act, which prevents the “transfer” of the CBI director without the previous consent of the special committee which appoints him/her.
• The term “transfer” cannot be read narrowly as this would defeat the legislative intent behind the protection in Section 4B(2). Divesting the CBI director of their powers, functions and duties, even on an interim basis, would be considered a transfer.
• Since the orders of the Centre and the CVC dated 23 October 2018 constituted a ‘transfer’ under Section 4B(2), they required previous consent of the special committee. Since no such consent had been obtained, the orders had to be set aside.

What are the Consequences of This Judgment?

• Despite Verma’s reinstatement, it is unclear whether this will lead to any immediate consequences.
• Verma’s powers are curtailed by the court’s direction that for a week (the time within which the court said the special committee needed to meet to discuss whether action needed to be taken against him) his role will be “confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications.”
• The court doesn’t specify what constitutes routine functions, and there is no judicial precedent on what would be considered “major” policy or institutional implications.
• One of the major questions being raised is whether or not Verma can initiate preliminary enquiries into new matters, register FIRs, and launch investigations. It is arguable that such things should not be considered to have policy or institutional implications, since they are part of the agency’s routine functioning, and can even be mandatory in certain circumstances. For example, if a complaint is made to the CBI disclosing a cognisable offence, it is required to register an FIR according to the Supreme Court’s Lalitha Kumari judgment.
• A similar restriction had been placed on Nageshwar Rao by the Supreme Court on 26 October, but in the time since, he initiated several investigations without incident, including into corruption claims against former Uttar Pradesh Chief Minister Akhilesh Yadav.
• On the other hand, transferring officers could be considered to have institutional implications, and so may fall foul of the Supreme Court’s restriction. This could prevent him from reversing the transfers of the officers who were previously investigating Rakesh Asthana, including AK Bassi and ML Sinha.
• Given these transfers were a direct result of Verma’s ouster and Rao’s appointment, it was technically possible for the judges to declare that the other transfers were also null and void. The court in fact notes that the IAs filed by some of the officers were “sequels” to the orders dated 23 October 2018, but says that it is not necessary for the judges to look at them at present, though the officers can challenge the transfer orders in appropriate forums if necessary.
• Given the lack of clarity in the Supreme Court’s judgment, any decisions taken by Verma which displease the government could very well be challenged on the grounds of violating the restriction on major decisions.
• The judgment doesn’t say anything about the CVC’s investigation into Alok Verma, which means this could continue if required. However, no action can be taken against Verma pursuant to any inquiry without the consent of the special committee, even if the investigation caught him red-handed.

What Happens Next?

Regardless of what decision the apex court arrives at, the long delays in hearing the case mean Verma will get little joy even from victory.

He is set to retire at the end of January, which means that even if reinstated, he will have little time to pursue his investigations into Asthana, and, if the whispers are to be believed, a preliminary enquiry into the Rafale deal.

The focus will now shift to the Delhi High Court, where Rakesh Asthana has challenged the action taken against him. This is also likely to be where the other officers will file petitions challenging their transfers, if they so choose.