Narendra Modi would not have expected a shocker from the Supreme Court in the infamous #CBIvsCBI case. The First Bench of CJI, Justice SK.Kaul and Justice KM.Joseph, in a unanimous verdict, set aside the CVC, and Department of Personnel, and Training department’s order divesting him of all powers and sending him out on leave. The Bench also set aside the order appointing Shri.Nageswara Rao, as interim Director in the place of exiled Alok Verma.
According to a piece that appeared in News Central, Alok Verma was sent out uncereminously in a midnight coup only after he was about to order a Preliminary Enquiry into the Rafale Issue. Senior Counsel Prasanth Bushan, former Finance Minister Yashwant Sinha and former Disinvestment Minister Arun Shourie, in the first week of October filed a detailed complaint to the Director CBI. Sources say, verification process was iniitiated by Alok Verma which set alarm bells ringing in PMO. Ajit Doval got into act with an eagerness to save Modi of the trouble. The result midnight coup. As detailed in this piece by savukku, the coup was mediculously staged.
Due to their arrogance of bulldozing any objections Modi and his sicario Ajit Doval were under the impression that this coup will go unnoticed. But, NGOs swung into action and the affected officers also challenged the midnight transfer order, swiftly.
Allegations flew thick and fast from all sides. Alok Verma and his deputy Rakesh Asthana threw allegations and counter allegations against each other. While the petitions were being heard by the First Bench, several officers from CBI, came up before the High Court with numerous allegations against Rakesh Asthana.
During the course of SC hearing, the Bench stuck just to legality of the transfer order. Senior Counsel KK. Venugopal who batted for the government went out of the way to describe the transfer of Alok Verma as a mere shift and not ‘transfer’ in the formal sense. He also went on to argue that the Selection Committee comprising the Prime Minister, CJI and the Leader of Opposition ceases to exist once an appointment is made viz. Director CBI.
Going by the verdict of the SC, it seems the Suprme Court has not bought the argument of the government.
While recording that the CVC Act, 2003 and the Delhi Special Police Act were amended suitably to incorporate the guidelines issued by the SC in Vineet Narain’s case, the SC found that the midnight transfer order was not in consonance with both the Acts.
It held “An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office of the Director, CBI from all kinds of extraneous influences, as may be, as well as for Bar & Bench upholding the integrity and independence of the institution of the CBI as a whole.
If the legislative intent would have been to confer in any authority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted. It is against this backdrop that the words “transferred except with the previous consent of the Committee” mentioned in Section 4B(2) of the DSPE Act has to be understood.”
The Bench goes on to add that “The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended. Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director.
In a situation where such interference may at all Bar & Bench 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. 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.”
It has then been held by the court that while the question of jurisdiction to transfer has come to such a conclusion, the report of the CVC (on allegations against Asthana) “should require to be unfolded only if inevitable”. By observing thus, the Court set aside the order of CVC dated 23.10.2018 divesting Alok Verma’s powers, DoPT and the order of DoPT appointing Nageswara Rao as interim Director.
Here comes the catch. Though the SC quashed the transfer orders of Alok Verma, the Court has also ordered the Committee comprising CJI, Prime Minister and Leader of Opposition to revisit the divestment of powers of Alok Verma. It also restrained Alok Verma from taking “any major policy decisions”. It further stresses that Alok Verma is “confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications”.
The Apex Court did not go into any of the Interlocutory Applications filed by DIG Manish Sinha or Dy SP AK.Bassy, levelling several serious charges against the exiled Rakesh Asthana. These I.As were filed challenging the transfer orders issued on the midnight of 23rd October 2018. With regard to these transfer orders, Supreme Court says, that the I.As arose out of the three main orders divesting Alok Verma’s powers and since the three orders stand quashed, “there is no necessity to examine the correctness of further/consequential transfer orders”. The interpretation that could be drawn from this observation is, SC is of the opinion that no separate orders are necessary on the transfer orders issued by the Interim Director Nageswara Rao, following divestment of powers of Alok Verma. However, after observing thus, the Court goes on to say that the parties (those who filed Interlocutory Applications) are free to challenge the said consequential orders in an appropriate forum, “if so required and so advised”. (emphasis supplied). It can very well be inferred that Director Alok Verma is free to cancel the transfer orders since it would not fall within the ambit of the caveat ‘major policy decisions’.
This imbroglio in CBI has brought out some dirty linen of the CBI. The agency’s image and faith has come down in the eyes of the public.
With just about three weeks left for the end of his tenure, Alok Verma may not be able to do much. But in his short remaining stint, people expect him to rectify the damage that has been done in the past few months and also show a ray of hope in the Rafale probe.
