As is well-known, in October, 2018, there were reports that Mr. Verma had received a complaint pertaining to corruption in the Rafale deal, and was about to conduct a preliminary enquiry, when he was divested of his duties and sent on temporary leave by the Central Government, in a completely illegal and arbitrary manner, and in violation of the statutory rules.

The appointment of the CBI Director is specified in Section 4A of the Delhi Special Police Establishment Act, 1946 (‘DSPE’), which states that the CBI Director shall be appointed by the Central Government on the recommendation of a High-Powered Committee consisting of the Prime Minister (Chairperson), Leader of Opposition (Member), and the Chief Justice of the Supreme Court, or a Judge nominated by him. Section 4B mandates that the tenure of the CBI Director shall be for a period ‘not less than two years’ from the date he/she assumes office, and he/she cannot be transferred without the prior consent of the said Committee, pursuant to the directions of the Supreme Court in Vineet Narrain v. Union of India [(1998) 1 SCC 226]. Thus, the CBI Director enjoysstatutory protection for his/her tenure of two years, and cannot be removed or transferred by the Government, without the prior permission of the Committee.

While the Government argued that Alok Verma was not transferred, and only divested of his duties for temporary period so the permission from the Committee was not required, the Petitioner argued that removing from the post was in effect a ‘transfer’ within the meaning of Section 4(B), DSPE Act, and was done in a total illegal and arbitrary manner. Upholding the Petitioner’s contentions, the Supreme Court held 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 upholding the integrity and independence of the institution of the CBI as a whole”. The Court also further held that “if the legislature intent would have been to confer in anyauthority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have been differently worded and drafted”.

The word ‘transfer’ has to be interpreted in a broad manner, in order to prevent the State from interfering with the CBI Director’s functioning by adopting various methods, which may not amount to ‘transfer’, but still have the same effect as ‘transfer’.

The Supreme Court thus reinstated Alok Verma as the CBI Director, and asked the Government to take the Committee’s consent before taking any action. The Committee has to meet within one week of the date of judgment, and consider the materials placed by the Government. Meanwhile, Alok Verma is refrained from taking any major policy decision. The committee has held one meeting already.

It is noted that though the Supreme Court reinstated Alok Verma, the riders placed on his tenure and the fact that Mr. Verma lost 77 days of his tenure, and the Court has not commented on that fact dilutes the real effect of the judgment. And even the delay in giving the decision is problematic. The Court did not take the Government to task for passing a patently illegal order, and that too to prevent the CBI Director from initiating an investigation in the Rafale allegations makes it evident that the Court pretended that this was a simpliciter question of wrong transfer, and not an attempt by the Government to totally destroy the CBI’s institutional autonomy.

The allegations made against Rakesh Asthana or the fact that Mr. Asthana was using the office of CBI to target opposition leaders or threaten with false prosecution are not factored in. Despite the Court’s order that the interim Director, Mr. Nageshwar Rao, would take no major policy decision, he transferred all the CBI officers who were investigating Mr. Asthana, and those decisions were not quashed by the Court. It is another matter that Mr. Verma, upon resuming office on 9th January, 2019, rescinded the said orders of the transfers. All these instances show that the Court should have dealt with this matter in a more sensitive and apt way, and ought to have come down heavily on the Government to interfere with the administration of justice.

Mr. Verma is still not out of the woods, since the Committee would consider the ‘non-existent’ allegations against him, which the CVC had given to the Supreme Court in a ‘sealed cover’. The Court ought to have noticed that the Committee consists of the Prime Minister, against whom allegations have been made and which Mr. Verma sought to investigate. This is a clear conflict of interest here.

It is hoped that this Verma case is a lesson to all the governments not to tamper with the CBI’s autonomy or to interfere with its Director’s tenure. It’s also a learning for the CVC that it ought to supervise the CBI’s functioning in an independent and impartial manner, and not act as a government’s mouth-piece. Most importantly, the Court has to understand that these are not cases of ‘individuals’ or ‘their egos’, as it was made out to be, but they relate to the heart of the institutional autonomy and governance of this country. Without CBI and CVC being independent, the governance structure will collapse, and that cannot be allowed to happen. (IPA Service)