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Attorney General says the job of the selection committee is limited to recommending names for post of CBI chief, government free to make its pick

As the Supreme Court bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph resumed its hearing in the petition filed by CBI director Alok Verma challenging the government’s decision to send him on leave, Attorney General KK Venugopal sought to turn the narrative that the Centre had erred by not convening a meeting of the selection committee before arriving at the now infamous decision.

As it happened:

Appearing for an NGO which has impleaded itself in the plea filed by CBI director Alok Verma challenging the Centre’s decision to divest him of his responsibilities, senior advocate Dushyant Dave argued that the CBI as an organisation cannot function under the dictation of the central government or the Central Vigilance Commission. Dave’s client has sought the court’s indulgence on the larger question of the CBI’s autonomy.

Dave reiterated earlier arguments made by senior advocate Fali Nariman, appearing for Alok Verma, stating that the Centre had violated the directions laid out under the DSPE Act while sending the CBI director on leave. Asserting that the government’s decision was “against the rule of law” and so, the subsequent order of appointing M Nageswara Rao as the interim chief of the agency was also void, Dave concluded his submissions.

Senior advocate Kapil Sibal then sought the bench’s permission to make submissions on behalf of Congress leader in the Lok Sabha, Mallikarjun Kharge. Though Kharge has not filed a separate petition in the case, Sibal noted that the Congress leader had moved an application to be heard in the case as he, in his capacity of the largest Opposition party in Lok Sabha, is a member of the selection panel that chooses the CBI director.

Sibal argued that the order of the chief vigilance commissioner (KV Chowdary), like that of the Centre, to divest Verma of his responsibilities and appoint Nageswara Rao as the interim CBI director, was “outside the ambit of power of superintendence of the CVC”. He added that the CVC’s directive to seal Verma’s office, soon after he was divested of his charge, was passed in violation of the CVC Act. He stated further that while the Act allows the CVC superintendence over the CBI in cases of corruption, it has no provision under which the vigilance commission can seal the office of the CBI director or send the agency’s top officer on forced leave.

Re-emphasising submissions made by Nariman and Dave, Sibal also contended that the selection panel for the CBI chief alone has the power to appoint or remove the officer and if the government’s action against Verma is condoned that a similar fate awaits other autonomous institutions like the Central Election Commission and even the CVC.

Sibal was interrupted by Chief Justice Gogoi who asked him to “stick to the points” and not drag in the issue of charges and counter charges between Alok Verma and CBI special director Rakesh Asthana or matters directly linked to CVC KV Chowdary or other institutions. The Chief Justice had, during the pre-lunch proceedings in the case, made it clear to all parties in the case that the bench was inclined to hear only arguments with regard to whether the Centre and CVC had erred in sending the CBI director on leave without convening a meeting of the selection panel.

The Chief Justice then asked Sibal if, as per provisions of the law, the CBI director cannot be transferred or sent on leave or suspended without prior consultation on the issue within the selection committee and its approval. The question had Nariman, Dave and Sibal all reply in unison: “Yes”. The Chief Justice then asked again if any exception could be made to this, and Sibal replied in the negative.

As Sibal concluded his arguments, senior advocate Indira Jaising made a brief intervention saying that her client, CBI officer MK Sinha, does not wish to press for arguments on the petition moved by him. It may be recalled that Sinha’s petition, filed after the CVC completed its inquiry against Verma, had made explosive allegations against senior officials in the government, including national security advisor Ajit Doval, and alleged that the CBI under the new dispensation headed by Rao wanted to derail the probe against Asthana. Sinha was among the CBI officers investing Asthana who were all transferred out of Delhi soon after Rao took interim charge as CBI chief.

Jaising, however, told the court that Sinha wanted to wait for the court to give its final order on Verma’s petition before it could take up his plea.

Senior advocate Rajeev Dhavan then began making his submissions on behalf of AK Bassi, the CBI officer who was heading the probe against Asthana and, like Sinha, was transferred out of Delhi – to Port Blair – after the government decided to send Verma on leave.

Dhavan begins with echoing the submission that Section 4B of the DSPE Act grants the CBI director a protected two year tenure and that it overrides all other rules that may be invoked by the government or any other organization to cut the CBI chief’s tenure short. Dhavan added that if the law had a lacunae (a possible reference to the bench’s earlier query on whether reference for action against the CBI director must be made to the selection panel if he is caught red handed taking a bribe), it is the Supreme Court that should address it and not the government without any consultative process.

Chief Justice Gogoi questioned Dhavan about the locus standi of his client in the case. The senior advocate replied that Bassi’s transfer was a corollary to the government’s decision to send Verma on leave which in turn was taken after the CBI (under Verma’s stewardship) filed an FIR against Rakesh Asthana. Dhavan argued that if Verma was not removed, Bassi would have continued with his charge of heading the SIT probing Asthana and so, because these sequences are related, he has an obvious locus standi in the case.

The Chief Justice again pressed the same question, asking Dhavan: “You are saying you would not have been transferred if Alok Verma was not sent on leave?” Jaising, still present in the courtroom, said she wanted to respond to this question ad proceeded to say that “there was a genuine apprehension that persons investigating (cases against Asthana) will be victimized.

Nariman also intervened to state that he wants the court’s indulgence on the prayer that for the purpose of this case, “divesting of authority” should be treated as the same as “transfer” under the DSPE Act.

Attorney General KK Venugopal, appearing for the Centre, then began with his submissions before the bench. Submitting that the “appointing authority (for the CBI director) is the central government,” Venugopal claims that the “power of selection and the final choice for appointment of Director lies with the union government,” seeking to counter the arguments that only the selection panel has the right to appoint, transfer, suspend or send on leave the CBI director. The Attorney General says that the selection committee and the appointing authority must be seen independent of each other and asserts that while the selection committee recommends a name for the post of CBI chief, it is the Centre, as the appointing authority, that has to accept the recommendation.

The Attorney General’s argument basically seeks to demolish earlier submissions that the selection committee alone has the power to appoint or remove a CBI director. His contention, contrary to popular perception, is that the selection panel must suggest a set of names for the role of CBI director but the power to select one and appoint the officer lies only with the Centre. He then goes on to claim that the question of consulting with the selection committee on the decision to send Verma on leave or to appoint Rao as the interim chief does not arise in light of his submissions.

Venugopal says that the selection committee, in fact, becomes functus officio (a body whose mandate has expired) once the CBI chief is appointed and so there was no requirement for the Centre to seek its approval for sending Verma on leave. He also asserted that Verma continues to be the CBI director despite the government’s order and that he has not been transferred or stripped of the perks of office – only his responsibilities.

The Chief Justice then posed specific questions to Venugopal with regard to relevant sections of the DSPE Act that lay out the process of appointment of the CBI director. Chief Justice Gogoi wondered whether the power of the order to divest Verma of his charge and appoint Rao as the interim chief flows from these provisions of the DSPE Act to which Venugopal replied in the affirmative and added that the superintendence of the CVC on the CBI too was not limited to matters of corruption probes but all aspects of the agency.

The Chief Justice then told the Attorney General that if the court was to proceed on the argument presented by him then while the centre, as appointing authority could have passed the order against Verma, the consequential order following divesting the CBI director of his charge – one that appointed Rao as the interim chief – should have come from the central government too and not the CVC.

Venugopal then responded saying: “the primary concern (while divesting Verma and Asthana of their charge) was to protect people’s faith in the CBI. Its top two officers were at loggerheads and public opinion was turning negative. The government decided to intervene in public interest so that CBI doesn’t lose confidence.”

When Justice Joseph asked Venugopal if the Centre had applied its mind to the complaint filed by Asthana against Verma before divesting the CBI director of his charge, the Attorney General replied saying the government “was not concerned about A or B”.

The bench then adjourned the proceedings for the day and posted resumption of arguments for December 5 while stating: “Should it become necessary to go into the CVC report (of inquiry against Alok Verma), then we might have to defer the hearing to allow all parties to respond on the report.”

—India Legal Bureau


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