Law came out victorious while none of the Parties could claim triumph: CBI Versus CBI

Hemant K. Batra, Law & Policy Expert
Goeman Bind HTO, International Law & Policy Think Tank

Photo Source: Wikipedia – Wikimedia Commons

A fair and balanced judgement by the highest court of law and justice in India has yet again made it stand tall. The Supreme Court of India today passed a detailed judgement in the matter relating to divestment of all the powers etc. vested in Alok Verma as the Director of the Central Bureau of Investigation (CBI), the highest and the premium most investigative agency in India. The judgement which runs into 44 pages was delivered by the three Judge Bench of the Supreme Court of India. The Bench comprising Chief Justice Ranjan Gogoi, along with Justice Sanjay Kishan Kaul, and Justice K. M. Joseph had heard the matter at length over several days, where Parties were represented by the legal stalwarts like K. K. Venugopal and Fali Nariman.

The judgement opens beautifully by a reminder to all concerned “that the Rule of law is the bedrock of democracy would hardly require any reiteration………………” As aide-mémoire for the readers, the brief facts of the case are – on 23 October 2018, the Central Vigilance Commission (CVC) issued an order whereby Verma, Director, CBI was divested of all the powers, etc., which vested in him as the Director of the CBI. CVC’s said order was of interim nature till completion of an inquiry into a complaint dated 24 August 2018 against Verma. CVC’s said order was tailed by another order of the Government of India of the same date as CVC order, thereby divesting Verma of all his functions etc. as Director, CBI.

In furtherance of the said order, on the same date, M. Nageshwar Rao, Joint Director, CBI was asked to look after the duties and functions of Director, CBI. These three orders got to be challenged before the Supreme Court in two separate Writ Petitions. One by Verma himself and another by a registered public interest society called Common Cause.

The CVC defended its order against Verma by stating that he did not cooperate in the inquiry being conducted by the CVC on a pending complaint. Apparently, the CVC proceedings became a battle ground between Verma and one Mr. Rakesh Asthana, Special Director, CBI. Verma believed that it was Asthana who was instigating complaints against him, which contained allegations of impropriety and bribery as well. While Asthana had his own reasons to justify the assertions. All these factors triggered the said three impugned orders by CVC and Government of India, respectively.

The Parties to the litigation mooted factual, policy, academic and logical arguments before the Supreme Court. The Court formulated a core issue based on the said arguments, the issues being to examine and review “the competence of the CVC and the Government of India to divest the Director, CBI of all his powers, functions, duties, supervisory role, etc. without obtaining the prior consent of the Committee” constituted for appointment of the Director, CBI. The Committee, mandated under a parliamentary statue, comprising of (a) the Prime Minister as the Chairperson; (b) the Leader of Opposition; and (c) the Chief Justice of India, as Members.

The Supreme Court thoroughly examined the legislative intent of all the statutory provisions governing appointment etc. of the Director, CBI. The Court observed that “history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. 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 be called for, public interest must be writ large against the backdrop of the necessity.”

Hence, the Supreme Court proceeded to set aside all the three orders dated 23rd October, 2018 of the CVC and the Government of India, respectively.

The Supreme Court then in the same breath poised and acknowledged the magnitude of the matter from a holistic perspective. Once it recognised the authority of the Committee, it entrusted the Committee to consider the way forward on the future of Verma as Director, CBI. The Court advised the Committee to consider the said matter on priority within a week thereby not giving any leeway to Verma.

And, to make the whole process of consideration by the Committee of the issue of divestment of power and authority of the Director, CBI transparent and fair, the Court passed further directions. The Court directed Verma, Director, CBI, to “cease and desist from taking any major policy decisions till the decision of the Committee permitting such actions and decisions becomes available within the time frame indicated.” The Court further emphasised that “during the interregnum’ Verma’s role “will be confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications.”

The order did not give clean chit to Verma nor did it stop the CVC or Government to proceed with the inquiry. It recognised the Committee as the nodal agency to determine the future of the Director, CBI. The Supreme Court acted as an ombudsman in the literal sense of the expression. It merely rebooted the situation in hand. The Supreme Court acted strictly within the four corners of legitimacy and justice. It is absolutely crystal clear from the above that none of the Parties could actually claim victory through this order. Only law was victorious at the end.

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