Chief Justice Gogoi says court will first hear arguments on whether the CBI chief can be removed or transferred without consulting the selection panel

With less than two months left for CBI chief Alok Verma’s collegium-guaranteed two year tenure to end, the Supreme Court resumed its hearing, on Thursday (November 29), on his plea seeking quashing of the Centre’s decision to divest him of his responsibilities.

The top court bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph had abruptly adjourned the matter during the last hearing after expressing displeasure over alleged “leak” of confidential details related to the case.

As the proceedings began, Verma’s counsel, senior advocate Fali nariman referred to earlier proceedings in the top court during the Sahara India Real Estate Corpn. Ltd. v. SEBI case, referring to 10 SCC 603, to highlight issues regarding postponement of publication of news reports through a judicial order related to a case. The reference by Nariman was in response to the Chief Justice’s reprimand to Verma and his legal team during the last hearing in the case when the bench was irked over publication of articles that carried the purported response of the CBI chief to a confidential inquiry report against him by the Central Vigilance Commission. Nariman had, during that hearing, pointed out that the article in question had not amounted to any violation of the top court’s order as it was about Verma’s response to the CVC during the probe and not his reply to the inquiry report as was being claimed.

Perhaps satisfied by Nariman’s arguments with regard to the purported “leak”, the bench did not press the matter further.

Nariman then proceeded to challenge the Centre’s decision of divesting Verma of his responsibilities as CBI director, stating that the government had acted in violation of the DSPE Act, the Vineet Narain judgment and various Supreme Court directives that gave the investigating agency’s boss a “secure tenure of two years irrespective of his superannuation”. He also submitted that transfer or removal of the CBI director cannot be done unilaterally by the government – a charge Verma, many in the legal fraternity and also Opposition leaders have been making against Prime Minister Narendra Modi.

Nariman pointed out that the CBI director is chosen, as per law, by a selection committee comprising the Prime Minister, Chief Justice of India and the Leader of Opposition and that the officer can only be transferred or removed after this panel meets and carries out an inquiry on the reasons cited for such action. He pointed out that the government sent Verma on leave on the midnight of October 24 without carrying out this due process.

While the government has claimed that it has not violated any law because Verma has only been sent on leave and not removed him from the post of CBI director, Nariman claimed that stripping the CBI director of his responsibilities was equivalent to his transfer or removal – an action that should not have been carried out with the requisite inquiry by and recommendation of the selection panel. Asserting that dilution of the powers of the CBI chief had “not even been contemplated in the (DSPE) Act”, Nariman said that the government and the Central Vigilance Commission had erred by approving the action taken against Verma.

“When you can’t even transfer the CBI chief under the law, how can you clip his wings without putting this proposal (of divesting him of his charge) before the high-powered panel? I say clip his wings because that seems to be the idea,” Nariman said, adding that divesting the CBI director of his responsibilities is “impermissible” in law.

As Nariman insisted that any action against the CBI director must be taken only after the collegium responsible for his appointment conducts an inquiry, Justice Joseph wondered: “if the CBI chief is caught red-handed taking a bribe, what should be the course of action? You submit that the Committee has to be approached but should the person continue even for a minute?”

As Nariman concluded his submissions stating that he was not referring purely to the facts of the case but also the requirements under the law with regard to the removal or transfer of the CBI director, the bench clarified that it will presently stick to the argument on whether an approval from the high-powered committee was a must before acting against Verma. The bench also said that it would wish to hear the arguments of the Centre and the CVC’s law officers on this specific aspect.

Following Nariman’s arguments, senior advocate Dushyant Dave began his submissions on behalf of NGO Common Cause which has also impleaded itself in the case with a petition that seeks the top court’s indulgence in the larger matter of the CBI’s autonomy and also on the manner in which M Nageswara Rao was appointed as the agency’s interim chief after Verma was sent on leave.

Chief Justice Gogoi told Dave that he should make submissions only if he has something to supplement the arguments made by Nariman as the court was inclined to discuss only the issue of whether a meeting of the CBI chief’s selection panel should have been convened before the government decided to send Verma on leave.

Dave said that he wishes to highlight aspects of the Vineet Narain judgment which dealt with the appointment and transfer of the CBI director and the role of the CVC in the matter. However, Dave proceeded to make arguments that sounded more as submissions against CBI special director Rakesh Asthana than on aspects that the court wanted him to touch upon.

As Dave began stating that Asthana (the special director facing six corruption cases was also sent on leave by the government along with Verma and has filed a separate petition challenging the decision) had been trying to usurp the role of the CBI director, Chief Justice Gogoi stopped the advocate from diverting the issue and urged him to stick to the aspects the bench had pointed out.

THE BENCH WILL RESUME HEARING IN THE CASE POST LUNCH AT 2 PM.

Meanwhile

Following the fiasco regarding the confusion among Verma’s lawyers during the last hearing in the case, the CBI chief has also made changes to his legal team. While senior advocate Fali Nariman continued to represent Verma, other advocates – Gopal Sankaranarayanan and Pooja Dhar – have withdrawn.

It may be recalled that during the last hearing Chief Justice Gogoi had expressed his disapproval on the manner in which Sankaranarayanan had appeared on behalf of Verma during a previous hearing and urged the court to grant the CBI director more time to file his reply to the findings of an inquiry conducted against him by the Central Vigilance Commission under supervision of the top court’s retired judge, Justice AK Patnaik. After the Chief Justice said he was not happy with Sankaranarayanan’s request, Nariman had submitted that he was the senior lawyer representing Verma and that Sankaranarayan’s appearance had not been authorized by him.

— India Legal Bureau