THE CBI IS STILL CAGED
THE NATION’S governance is shaken. Close on the heels of the Constitution being amended for reservation for ‘economically weaker sections’ in half-a-day each in the Parliament Lok Sabha and the Rajya Sabha — signalling the decline of Parliament by using the Constitution as a toy — comes the Central Bureau of Investigation (CBI) imbroglio of enormous embarrassments. India’s primary investigative agency has dissolved into ignominy, its reputation unworthy of its history since 1946. We are governed by institutions. The rule of law requires integrity of every institution and exercise of power. Institutional morality and integrity is the real constitutional morality, not the fuzzy definition declared by the Supreme Court.
Soon after the ‘night of the long knives’ of October 23, 2018, when Alok Verma was removed as CBI director, the Supreme Court was moved to quash the divestment of his power by the Central Vigilance Commission (CVC) and the appointment of Nageshwar Rao as an interim director.
A complaint against Verma had been forwarded to the CVC by the Government of India on August 31, 2018. Why the time gap between August and October? In turn, Rakesh Asthana, the special director, who had a criminal complaint against him, also turned on Verma. The persons probing the complaint against Asthana were also transferred to different places. Was the government innocent in all this? The Supreme Court bench comprising Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph, decided after quoting precedent and statute copiously, that the CVC did not have the power to remove Verma and restored him to his post. He was to retire on January 31. However, two caveats suggested that the court did not entirely trust Verma: (i) that as director, though restored (he) would cease and desist from taking any major policy decision (ii) the special appointment committee (SAC) consisting of the Prime Minister, Leader of Opposition and CJI or nominee which had the power to suspend or transfer, was to meet preferably within seven days to decide on Verma’s fate.
The report against Verma ordered by the Supreme Court was kept in closed cover. The normal order in such cases is to set aside the removal and leave it to the authorities to take fresh steps, if so advised. The committee was established within a day to include PM, Mallikarjun Kharge and Justice AK Sikri (CJI’s nominee). We can assume Justice Sikri played a role uninstructed by CJI Gogoi. Kharge did not agree. The order was legally clever.
Verma was to be “transferred” to DG fire services, home guards and civil defence, because transfer is always within an authority’s power, usually beyond judicial review, but requiring a reason. Who provided this legal solution? There can be no doubt that this transfer on facts was a removal which kept the fig leafs intact. Should Verma have been heard? The Supreme Court had asked to convene in seven days, but did not mandate a hurried decision. What was the urgency? To stymie Verma who was already shackled by the Supreme Court. Certainly, Verma immediately reversed the transfers made by the interim director. Is this what troubled Narendra Modi?
The decision and procedure of the SAC does not appear to be fair.
Former Justice Ananga Kumar Patnaik, appointed by the Supreme Court to supervise the CVC’s inquiry against Verma in 2018, reportedly said the procedure followed by the SAC was “very, very hasty”, adding “what the CVC said cannot be the last word.” There was “no evidence of corruption against Verma,” Justice Patnaik said. It would have been better if the court had opened the closed package and adjudicated the case.
A forgettable plot
The aftermath to these curious set of facts was that Verma resigned, irked by denial of hearing and because he had already superannuated as police officer and was director for a fixed term of two years. To send Verma to direct fire and home guards was insulting. Nageshwar Rao immediately countermanded Verma’s recall of transfer orders. Meanwhile, the Delhi High Court refused to quash the case against special director Asthana, who may now benefit from a non-independent investigation.
What went wrong? Verma’s removal overnight in October 2018 was a plot. The Supreme Court decision was right to say that the removal was bad in law. However, its direction to curb Verma’s powers and constitute the SAC in seven days was wrong. The procedure followed by the SAC was legally clever but hasty. In these cases unanimity should have been sought. There has been too much anger in court proceedings and too little consideration in the SAC.
The real crisis was inherently perpetuated by the Modi government. Having appointed Verma as CBI director, where was the need to elevate Asthana as virtually co-equal special director? This was the original sin with mischief aforethought. God is great, but juxtaposition is greater. Law is great but politics seems greater.
The writer is a Supreme Court lawyer. The views expressed