The Supreme Court on Thursday reserved its order on the pleas filed by the Central Bureau of Investigation (CBI) Director Alok Verma and NGO Common Cause challenging the decision of the Central government to send Verma on leave. The apex court rapped the Centre over the exigency shown in sending Verma on leave without consulting the Selection Committee. However, Verma's counsel Fali Nariman argued that in this case, the word "transfer" may not necessarily mean a transfer from one place to another but would also include the divestment of powers, as done in the petitioner's case.
Meanwhile, State counsel KK Venugopal argued that "if the matter would have been placed before the committee, then the committee would have said that 'this is not a transfer, so why should it be placed before us'," stating that it was a "highly artificial argument" (by Verma) to say that this was a transfer.
Meanwhile, senior advocate Dushyant Dave submitted his rejoinder on behalf of Common Cause. Dave cited the Supreme Court order whereby the court had quashed the Kerala Government's order removing DGP TP Senkumar before the expiration of his fixed tenure. "If you have any grievance, rush to the committee. There was no exigency. The government waited for more than two years and acted overnight to prevent something," he remarked. He then mentioned how the CVC has adopted two standards for the two side-stepped CBI top officers. He said that the Section 4B of the DSPE Act overrides all other rules pertaining to service rules of CBI director. CVC cannot have two different approaches to the same issue as the CVC Act doesn't give it the power to override the CBI director. "The CVC rubbished the allegations against Asthana at the time of his appointment and said they can't be acted upon unless proved. But in the case of Verma, they acted promptly, without waiting for allegations to be proved," Dave noted in the court.
In Wednesday's hearing, Solicitor General Tushar Mehta had commenced his arguments on behalf of the CVC while senior Counsel Dave, Fali Nariman, Kapil Sibal and Rajeev Dhavan had argued against the government's decision to send Verma on leave. Venugopal had also argued to defend the State's decision to send Verma on leave in front of a three-judge bench of CJI Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph.
However, on Thursday after Mehta resumed his submissions in the case, Chief Justice of India (CJI) Ranjan Gogoi asked the Centre's counsel that what was the difficulty in consulting the Selection Committee and what prompted the overnight decision to send Verma and CBI Special Director Rakesh Asthana on leave after their feud came out in public.
Mehta asked in court that whether a person who is a member of the Indian Police Service (IPS) and eligible for being the director of the CBI, ceases to be outside the scope of All India Services Act. "Neither under the Police Act nor under the DSPE Act was a person eligible for being a CBI director conceived to be not governed by rules applicable to the police," Mehta mentioned. "A person continues to be part of IPS despite his or her induction into the CBI," he submitted.
However, CJI Gogoi remarked that the idea of the two-year tenure for the CBI director was to "give them some permanence". Gogoi said that the argument by Verma is that any action which would divest him of his powers would need the approval of the Selection Committee. Mehta replied that in this case, an emergent action was necessary. "There are answers and I will provide them," he said in the top court. Here, Gogoi agreed that Verma, of course, continues to be a part of the IPS despite his current role with the CBI.
Here, Mehta reiterated that Verma was not transferred but only sent on leave signifying the act to be a temporary arrangement in nature. "Transfer would mean change in place of employment from one place to another and it would be a permanent act," he stated. Gogoi quipped, "Your argument is conditions of service means conditions of service with respect to his retirement." "And transfer and posting," Mehta responded.
"Suppose, an officer taking a bribe is caught on camera and needs to be suspended immediately, then that power is retained by the Central government," Mehta submitted. He then made submissions on the superintendence of CVC over CBI. While reading out Section 8 of the CVC Act, Mehta submitted: "Nobody is a sovereign within a sovereign. Situations may arise when Legislature has not provided for a situation. I (CVC) would have been guilty of dereliction of duty if I had not acted."
However, reacting to his argument the CJI said, "Even if we are to accept your argument that the government action was necessary in view of an infight, why have you not approached the Selection Committee till date regarding the divestment of Verma's charges. You are saying that the situation was going on since last July. What prompted the overnight decision on 23 October? Why not wait for a few more months? What is the difficulty in consulting the Selection Committee." Pulling up the government for not approaching the committee before deciding to sendin Verma on leave, the CJI asked the government as to why it couldn't be "completely fair". "Better to consult the committee than not consult it at all," the CJI said.
Thereafter, senior Advocate Mukul Rohatgi, stood up to argue for Asthana but the CJI asked him about the requirement of hearing Asthana in the matter. "We are only on the jurisdiction of Centre in divesting the charges of the CBI director", the CJI said. However, Rohatgi insisted on hearing for Asthana and argued that as per his assumption, the report of the CVC is adverse to Alok Verma and thus the central government has all the powers to take action. The suspension, departmental enquiry and dismissal still lie within the sole domain of the Centre, Rohatgi argued.
Post this, Verma's counsel Fali S Nariman filed a rejoinder while submitting for the petitioner. Nariman said that in all circumstances the government must consult the Statutory Committee and laid stress on how a transfer, in this case, doesn't mean transfer in service jurisprudence as transfer doesn't only mean from one place to another,... it includes divesting of powers and functions. "The power of superintendent is a general power. Even if it is assumed that the CVC has it, it still overrides with the special provisions regarding the CBI director," Nariman noted.
The CJI at this point asked Nariman if the court can appoint an acting director if exigency arises? "Yes. Supreme Court has all the powers," Nariman replied. The responsibility of the CBI director has been transferred to acting director. It is a transfer. The issue is about "continue to hold office", not continue to be on the post. Verma has been divested of charges. He has been replaced by Nageshwar Rao. This amounts to transfer," Nariman submitted. "There can't be an acting CJI, likewise, there can't be an acting CBI director", he remarked.
In reference to Mehta's argument that Verma continues to be the CBI director, Nariman raised a strong objection saying, "The officer should have powers of a director. A tenure of two years does not mean that the director can have a visiting card with title, but without powers." Nariman also pointed out in the court that the CBI director registered a FIR against Asthana within his jurisdiction. "Registration of FIR against Asthana was the reason for the DoPT to divest Verma of his powers and functions," he said.
Whereas, Additional Solicitor general (ASG) PS Narasimha, who appeared for the CBI, said: "Even if Section 4 (2) of the Act is not there, the Central government will retain the power except on three things - appointment, transfer and a minimum tenure of two years, citing the rules under the All India Services Act relating to posting of officers. "As per Rule 7, an officer may be transferred before the minimum prescribed tenure only on the recommendation of a committee; however it applies only to transfer simpliciter, Narasimha concluded.
Thereafter, as the hearing resumed post lunch, senior advocate Rajeev Dhawan " who is the counsel for transferred CBI officer AK Bassi " addressed the court on the issue of autonomy of CBI in his capacity as the officer of the court. "The whole exercise has turned CBI upside down. No matter what you call it, effectively it is a removal," Dhawan said stating that the autonomy of CBI is at the core of the issue. "Action against Verma violates the principle of proportionality. Power has to be exercised with least possible invasion," he submitted.
Representing Congress leader Mallikarjun Kharge, senior advocate Kapil Sibal began his rejoinder by saying that the CVC Act only deals with cases under the Prevention of Corruption Act. But CBI investigates many more cases like the Aarushi-Hemarj double murder case and cases of terrorism. Here Gogoi quipped to add, "And cases we direct."
"The approval of the Selection Committee for transfer is a ring fence to protect the CBI Director from executive influence. Without this, the office will be in jeopardy. Otherwise, it will be like giving unbridled power to the Centre," Sibal said. "Section 4(2) of DSPE Act is not the repository of power to divest CBI Director of his powers," Sibal mentioned.
After Sibal, Dave took over and read out the Supreme Court's judgment in the Vineet Narain case. The Parliament went beyond what the Supreme Court had suggested in the Vineet Narain case with regard to the composition of the selection committee and roped in the prime minister, the leader of Opposition and the CJI, Dave cited. Dave also cited the Supreme Court order whereby court had quashed the Kerala Government order removing DGP TP Senkumar before the expiration of his fixed tenure, whose judgement was authored by Justice Madan B Lokur. "My submission is that the government becomes functus officio after appointment under Section 4(B)," Dave told the court.
Gogoi held that unlike the chief vigilance commissioner, and vigilance commissioners, the office of the CBI director hasn't been given any special protection except a fixed tenure and transfer with the consent of the appointment committee as the court reserved its orders on petitions of Alok Verma and Common Cause.
In October, the Court had ordered that the Central Vigilance Commission (CVC) inquiry initiated against Verma be completed within two weeks under the supervision of Justice (Retd.) AK Patnaik, to find out if there is a prima facie case made out against Verma.
On 16 November, the Bench of CJI Gogoi and Justices Sanjay Kishan Kaul and KM Joseph had directed that a copy of the CVC report be served on Alok Verma so that he can respond to it. Alok Verma submitted his response to the CVC report in a sealed cover on 19 November.
With inputs from Bar and Bench, Live Law and the Leaflet