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Spice of the Month
CBI vs CBI Alok Verma Case, Has delay by Supreme Court defeated justice?
- GS2 || Governance & Social Justice || Administrative Bodies || Statutory
Why in news?
The Supreme Court on Tuesday, 8 January, reinstated Alok Kumar Verma as the Central Bureau of Investigation (CBI) director, setting aside the Centre’s October 2018 order that divested him of his powers.
Key takeaways from SC’s order
- Alok Verma will be reinstated as the CBI director, however he will not be allowed to take any major policy decisions for a week
- The High Power Committee under the Delhi Special Police Establishment (DSPE) Act, 1946 will act within a week to consider Alok Verma’s case
- The govt should have referred to the Select Committee, consisting of Chief Justice of India, Prime Minister and Leader of Opposition, before taking action against Verma on 23rd October
- The appointment of Nageshwar Rao as the interim chief of the CBI by the central govt stands quashed
- The CBI chief’s position is insulated from any interference by the Centre, and anything that affects his ability to function will be construed as a transfer
What Happened on 23 October?
- Earlier on 23 October, Verma was sent on a forced leave by the central government and the CVC following his run-in with the agency’s number two and CBI Special Director Rakesh Asthana.
- 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.
- Nageshwar Rao took over the reigns the same day.
Does law allow the government to send Verma on leave?
- Verma challenged the Centre’s decision on the grounds that
- his position as the 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.
How did the feud begin? What are charges against Verma and Asthana?
- The cracks began to appear between the CBI’s top two way back in October 2017, when the Verma objected to Asthana’s promotion as Special Director.
- The CBI director handed over a confidential note to the Central Vigilance Commission, which supervises the CBI’s functioning, alleging corruption on Asthana’s part with regard to the Sterling Biotech case.
- Verma alleged that according to a diary found on the premises of the company, Asthana was paid Rs 3.88 crore. Sterling Biotech came under probe that year for loan defaults of over Rs 5,000 crore. The CVC panel unanimously cleared Asthana’s promotion, disregarding Verma’s submissions.
- The turf war reached a crescendo after the CBI filed six complaints and an FIR against Asthana for allegedly demanding a bribe of Rs 5 crore from a Hyderabad-based businessman Satish Babu Sana through two middlemen to help him get off the hook in the Moin Qureshi money laundering case.
- CBI has alleged that at least Rs 3 crore had already been paid to Asthana through the middlemen. Moreover, the agency also arrested Devendra Kumar, a deputy superintendent of police in the agency, who has been working with Asthana.
- However, days prior to CBI stating that its Special Director’s role was being investigated, Asthana shot off a complaint to the Cabinet Secretary, listing more than a dozen charges against the Director, including a counter charge relating to Moin Qureshi case, where he alleged that it was Verma who accepted a bribe. Other complaints relate to two businessmen seeking St Kitts citizenship, and a land acquisition case in Haryana.
- Asthana said that Babu had claimed that he paid a bribe of Rs 2 crore to Verma to avoid action by the CBI. He added that he was instructed by Verma on February 20 on the telephone not to examine Babu
What is the Central Vigilance Commission’s role in the matter?
- The Central Vigilance Commission, which supervises the CBI’s functioning, found itself caught up in the row after it declined to share details of Asthana’s complaint against Verma and “CBI officers investigating his cases” with the investigation agency.
- In his complaint to CVC, Asthana had alleged that Verma had sought to impede his functioning, interfere in investigations and malign his reputation on the basis of unverified facts.
- Following Verma’s removal as CBI director on Wednesday, the government reasoned that he did not cooperate with the CVC in the probe against him. The government said that despite repeated assurances and reminders, Verma failed to furnish the records/files before the Commission.
The crux of the apex court’s judgment dated 8 January 2019:
- 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.
Concerns with SC judgment: Judicial evasion
- The Alok Verma Case — or “CBI vs CBI”, as it has come to be popularly known — reveals some of the pathologies that have plagued the Supreme Court’s conduct in recent high-profile cases.
- As indicated above, when Mr. Verma approached the court, the legal question was straightforward: were the CVC and the Central government authorised to divest him of his functions as CBI Director? It was a question that, when the court finally got around to it, took it no more than eight pages to answer.
- The SC delayed hearing the issue for over a month after the first hearing on 26 October, first asking the CVC to submit an inquiry report within two weeks in a sealed cover, and then asking Verma for his reply to the report.
- 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, and finally delivered it on January 8.
- Effectively, the Supreme Court dragged on for months a case that could have been decided within days. And this was of crucial significance: Verma retires at the end of January. It is questionable what, precisely, does it really mean for the Supreme Court to “reinstate” him midway through January.
- This is not the first time that an important, time-sensitive case has been dragged on in a manner that materially affects the situation of the parties. This is “judicial evasion”: the court avoids deciding a thorny and time-sensitive question, but its very refusal to decide is, effectively, a decision in favour of the government, because it is the government that benefits from the status quo being maintained.
Way ahead- Setting deadlines
- During the Constituent Assembly debates, there was a proposal that all cases involving fundamental rights be decided within a month. The fear was that the more time the court took, the more the government would benefit from the status quo.
- Recent events have confirmed this fear. In high stakes cases, time-sensitive cases, the court must ensure two things: that the judgment is timely, and that the judgment is clear.
- The Alok Verma case demonstrates how, when the court fails to do so, it abdicates its role as the sentinel on the qui vive, and allows the government to get away with abuse of law.
Elaborate on the statutory provisions regarding CBI. In light of recent events, explain the need for improving the autonomy of CBI, and measures to do so.