Chief Justice Ranjan Gogoi poses pointed questions on why the selection panel was not consulted before removing Verma

With the date of CBI director-in-exile Alok Verma’s superannuation fast approaching, the Supreme Court, on Thursday (December 6), heard further arguments by the Central Vigilance Commission (CVC) on why there was a pressing need to divest the top IPS official of his responsibilities without consulting the selection committee mandated for appointing the probe agency’s chief.

The proceedings in the petition filed by Verma challenging the Centre’s midnight decision of October 24 to send him on leave saw Chief Justice Ranjan Gogoi pose some terse questions to Solicitor General Tushar Mehta, appearing for the CVC, on why the selection committee for appointing the CBI director was not consulted before divesting Verma of his responsibilities when the issues mentioned by the Centre to justify its action had been raging since July this year.

The posers from the Chief Justice came as Solicitor General Tushar Mehta reiterated that the action against Verma was necessary and that the CVC, like the Centre, had not erred when it signed on the decision to divest the CBI director of his responsibilities. Mehta, who had begun his submissions on Wednesday after Attorney General KK Venugopal made similar averments before the court, resumed his arguments, on Thursday, while placing reliance on the scope of the CVC’s superintendence over the CBI as mandated by law.

Mehta said that the CBI director, by virtue of being an IPS officer, continues to be governed by rules laid out for the All India Services and thus, the action taken by the CVC against Verma was not bad in law.

The Chief Justice quizzed Mehta on the CBI director’s contention that he has a minimum two-year functional tenure guaranteed under the law and that the Centre’s action of sending him on leave had curtailed this term. Chief Justice Gogoi said that the idea behind a secure two-year tenure is to give the office of the CBI director “some permanence”. The Chief Justice also pointed out to Mehta that “what prompted the CVC to take a decision on October 23 (recommend divesting Verma of his responsibilities) did not happen overnight… it did not require immediate action because such an anomaly (the feud between Verma and his deputy, special director Rakesh Asthana) in the institution was going on since July.”

“Why not be completely fair… What’s the difficulty in consulting the selection committee? The essence of every government action is what’s best for administration. It is not only a question of adherence to the law but of better adherence to the law,” the Chief Justice said. He added that even in cases of exigencies, “it is not advisable to go to the selection committee at some stage?”

Mehta, however, persisted that the “emergent action was necessary” and assured the bench, also comprising Justices SK Kaul and KM Joseph, that “there are answers and I will provide them.”

Stating that “extraordinary situations require extraordinary remedies”, Mehta asserted that the CVC “has powers of superintendence over the CBI to deal with surprise, extraordinary situations.”

Chief Justice Gogoi then asked Mehta to explain whether the CVC’s superintendence over the CBI go beyond investigation of corruption cases, in reference to rules laid out under Section 4 (1) of the DSPE Act and Section 8 of the CVC Act. Mehta responded that the superintendence powers were “wide and plenary.”

It may be noted that the contention of Verma’s counsel, senior advocate Fali Nariman, and other legal hawks like senior advocates Rajeev Dhavan, Kapil Sibal, Indira Jaising and Dushyant Dave – each of whom have made submissions in this case on behalf of other parties who have impleaded themselves with the main petition – has been that the CVC’s superintendence over the CBI cannot go beyond cases registered under the Prevention of Corruption Act.

Mehta told the court that it was incumbent upon the CVC to act with urgency against Verma because the “top officers of the CBI were investigating cases against each other” and “inaction (on part of the vigilance panel) would have been held as dereliction of duty”.

The Solicitor General said that the order to divest Verma (and also Rakesh Asthana) “was a reasoned one” and was “passed impartially”, adding that the CVC is answerable to the Executive and could have been made answerable to the Legislature “but I can only be answerable to Your Lordships if somebody comes and says to you that the CVC is not performing its functions.”

Mehta added that the decision to divest Verma of his charge was only an “interim measure” and did not amount to his transfer or suspension.

Concluding his arguments, Mehta told the court that the CVC annual report was full of instances where the panel had taken action against CBI officials, adding that the decision against Verma wasn’t the first of its kind.

Attorney General KK Venugopal, who had concluded his arguments on behalf of the Centre during the proceedings on Wednesday, made some additional contentions after Mehta’s submissions. Responding to the Chief Justice’s slew of questions to Mehta on why the selection committee was not consulted before the decision was taken against Verma, Venugopal said that even if the matter had first been referred to the selection panel, its response would have been “this is not a transfer matter, so why place it before us.” The Attorney General said that Verma’s claim that the action against him was akin to a transfer was based on a “highly artificial” premise.

Arguing on behalf of the CBI, senior advocate PS Narasimha, who had recently resigned as Additional Solicitor General (ASG), told the court that as per the rules the selection committee may be consulted only in case of a decision to transfer the CBI director. In Verma’s case, Narasimha said, there was no transfer and hence there was no need for the government or the CVC to consult the selection panel.

Senior advocate Mukul Rohatgi, appearing for Rakesh Asthana, then requested the bench to hear his submissions too. Chief Justice Gogoi, however, told Rohatgi that the matter for consideration of the bench presently was only about the “jurisdiction of the Centre in divesting the CBI director of his charge.” However, Rohatgi urged the court to hear him nonetheless. Allowed to make a brief submission, Rohatgi pointed out that though the Centre’s power with regard to appointment, transfer or deciding the tenure of the CBI director may be limited, ordering the suspension of the CBI director or a departmental enquiry against him remained within the “sole domain of the Centre.”

With submissions of all those opposing Verma’s petition over, his counsel, senior advocate Fali Nariman, began his rejoinder to the arguments placed before the bench.

Arguing that transfer must not just mean sending an officer from one place to the other, Nariman sought to counter Venugopal’s claim that Verma continued as CBI director, by saying that a two-year tenure means that the incumbent must continue to have powers of the agency’s chief and “not just a visiting card and title.”

Nariman said that in the extant case, transfer should not be construed in its literal, ordinary sense, adding that “there is a law dictionary and an English dictionary… this matter is not about pay, perks and facilities as pointed out by the respondents (the Centre and the CVC)… what is the point if I am not allowed to perform my duties but have a two year tenure?”

Verma’s counsel said that the CBI director had been replaced by an interim chief in M Nageswara Rao. Nariman said that soon after Rao took over, he transferred a slew of officers who were probing Asthana. The senior advocate said that since all responsibilities of Verma as the CBI director had evidently been taken over by Rao, the Centre’s decision to send Verma on leave should be seen as a transfer order.

There can’t be an acting Chief Justice of India and likewise there can’t be an acting director of the CBI,” Nariman submitted as the bench rose for lunch. Hearing in the case will now resume post 2 pm.

—India Legal Bureau