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APPOINTMENT OF INTERIM CBI DIRECTOR CHALLENGED
The Centre told the Supreme Court on December 16, 2016, that the appointment of Rakesh Asthana as acting director of the CBI was not illegal or contrary to the Apex Court's judgement. It also said that the curtailment of service of senior IPS officer RK Dutta at CBI was as per the law governing the probe agency. It further informed the court that the process to select a regular CBI director was on and the Collegium might meet later this month.
The Supreme Court had on December 9, 2016, issued a notice to the Central Government in a petition filed by Common Cause challenging the appointment of the interim Director of CBI in violation of established norms. The Court has asked the government for a detailed explanation of the appointment before the next hearing on December 16. The Apex Court has also sought explanation on the abrupt and premature transfer of CBI Special Director, who was an investigator in the 2G and coal scam cases, without the permission of the Apex Court, which is monitoring these probes.
Common Cause had approached the SC for a direction to the government for the appointment of a regular Director of the CBI in accordance with the law and with the landmark judgment in the Vineet Narain case (1998). It was contended that proper procedure as laid down in Section 4A of the Delhi Special Police Establishment Act, 1946 was not followed.
The petition also sought the quashing of the appointment of Rakesh Asthana, a Gujarat cadre officer as the Interim/Acting Director of the CBI on grounds that it was completely mala fide, arbitrary and illegal.
The petition set out the importance of CBI as the “premier investigating agency of the country”. Regarding the CBI Director’s role, the petition stated that he is the final authority in the organization. He supervises all the work in the CBI and is responsible for constitution of investigating teams for probing cases. Hence, the Apex Court and later on Parliament have in the past made determined efforts to enhance the functional autonomy of the CBI Director and limit the extent of executive discretion in the matter of appointment of this key functionary.
The Delhi Special Police Establishment (DSPE) Act, 1946 was amended in 2003 vide the Central Vigilance Commission (CVC) Act, 2003 to state that the Director, CBI shall be appointed by the Central Government on the recommendations of the Central Vigilance Commissioner, the Vigilance Commissioners and two Secretaries to the Government of India. Subsequently, this mechanism was found insufficient to insulate the CBI Director and hence, the Act was further amended by the Lokpal and Lokayuktas Act of 2013. After the amendment, the Act now provides that, “CBI Director shall be appointed by the Central Government on the recommendations of a committee comprising a) the Prime Minister (Chairperson), b) the Leader of Opposition (Member), and c) the Chief Justice of India or any Judge of Supreme Court nominated by him (Member). The DSPE Act was further amended on Nov 11, 2014 to include the Leader of the single largest Opposition party in the said committee when there is no recognized Leader of Opposition.
The petition further pointed out that the previous Director, Anil Sinha’s tenure at the helm of CBI came to an end on December 2, 2016 and the Central government should have convened a meeting of the selection committee to appoint the new Director so as to ensure a smooth transition. The Centre failed to do so in a deliberate dereliction and complete violation of the amended DSPE Act.
The petition informed that Mr. Asthana has held several important positions in Gujarat Police and was also part of SIT set up by the Gujarat Government to probe the Godhra train burning case. Also, there have been irregularities in the premature transfer of RK Dutta, Special Director, CBI to the Ministry of Home Affairs (MHA). A post of Special Secretary was specially created in the MHA to accommodate Mr. Dutta by upgrading the post of a Joint Secretary, which is two levels below the Special Secretary, since the Government clearly wanted him out of the CBI.
Common Cause had, therefore, prayed for a direction to be issued to the Central government to comply with the mandate of the law and call for the meeting of the selection committee as per the amended DSPE Act and setting aside of the ad hoc appointment of the Interim/Acting CBI Director. Also, the manner in which the statutory requirement of involving the Chief Justice of India and the Leader of the largest Opposition party in the selection process was ignored and a handpicked person was given the important charge of Director CBI, ostensibly as an interim measure, deserved to be deprecated in the strongest terms.