THE CBI IS STILL CAGED

Mail Today - - COMMENT - By Ra­jeev Dha­van

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.

Legally clever

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.

Pro­ce­dural loop­hole

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

are per­sonal.

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