W.P. (C) 1315/2018
Challenging the arbitrary removal of CBI Director
Common Cause, in its quest to uphold transparency and integrity of public institutions, filed a petition in the Supreme Court challenging the removal of CBI Director Mr. Alok Verma. The petition prayed for quashing of the order dated 23.10.2018, issued by the Central Vigilance Commission, vide which Mr. Verma was illegally divested of all the work related to the Director, CBI for Malafide reasons. The petition also sought quashing of the order dated 23.10.2018, issued by the Appointment Committee of Cabinet, vide which Mr. Nageshwar Rao, Joint Director, CBI, was handed over the charge of Director CBI in gross violation of the law. The petition also sought a direction for the removal of the CBI’s Special Director Mr. Rakesh Asthana from the CBI in light of serious corruption cases pending against him in order to ensure institutional integrity. Further, Common Cause prayed for the constitution of a Special Investigating Team (SIT) to look into the recent unprecedented events which have unfolded in the past few days and also to investigate the allegations of corruption against the senior officials of the CBI and submit the report before the Supreme Court.
In a welcome order, a Supreme Court Bench headed by Chief Justice Ranjan Gogoi directed that the CVC inquiry initiated against Alok Verma be completed within two weeks under the supervision of former Supreme Court Judge, AK Patnaik.
The Bench also ordered that interim Director Nageshwar Rao is not to take any major policy decisions. It directed that all decisions taken by M Nageshwar Rao from October 23 be submitted in sealed cover to the Supreme Court.
On November 12, a report of the orders passed by the Acting Director, M. Nageshwar Rao, as per the terms of the previous order, dated 26th October, 2018 has been submitted in a sealed cover by Additional Solicitor General P.S. Narasimha.
In WP No.1309 of 2018, the report of CVC with regard to the preliminary enquiry held in respect of the petitioner, Alok Kumar Verma has been submitted in a sealed cover by Solicitor General Tushar Mehta.
Both the aforesaid reports have been taken on record.
The Central Vigilance Commission (CVC) report is a mix and exhaustive, Chief Justice of India Ranjan Gogoi told the CBI chief. The Supreme Court on November 16 said CBI director Alok Verma would get a copy of the Central Vigilance Commission's report on corruption allegations against him.
Verma can file a reply in a sealed cover before 1 pm on Monday, November 19, 2018.
In the hearing on November 20, 2018 the Court expressed strong displeasure over the alleged leak of Alok Verma's reply, portions of which were leaked to the media. Chief Justice Gogoi also voiced his dissatisfaction with the mention made by the counsel for Alok Verma, seeking time beyond the stipulated deadline for filing his response, praying that the hearing be adjourned. However, the Court allowed Verma's counsels to make a mention of the matter subsequently in the day.
In the hearing on 29 November 2018, the counsels for the petitioners submitted before the court that transfer or removal of the CBI Director cannot be done without the consent of the Selection Committee. The counsel for Common Cause, Dushyant Dave, further argued that the appointment of Interim Director, CBI should also be set aside, and invoked provisions from the Delhi Special Police Establishment Act, 1946 and the ratio from the Vineet Narain vs Union of India 1997 judgement.
Attorney General KK Venugopal, appearing on behalf of the Centre, refuted the arguments put forth by the petitioners and contended that the central government is the final appointing authority, and that the decision of removal of the CBI director was taken in larger public interest.
The Court had said it would first consider whether the government has the power to divest the CBI director of his duties under whatever circumstances or whether the selection committee headed by the prime minister should have been approached before moving against Verma on corruption allegations against him.
The court has clarified that for now, no allegations and counter-allegations involving Verma and Asthana shall be entertained, both of whom have been stripped of their powers and sent on leave following their bitter feud.
On December 5, 2018, the Attorney General K K Venugopal claimed that centre’s action was necessary to restore the confidence of public in the institution of the CBI as the top CBI officers were "fighting like Kilkenny cats" and they created an unprecedented and extraordinary situation that the government of India was watching with “amazement”.
On December 6, 2018, the court questioned the haste to take the step without consulting a selection committee, as is the rule and is fair for initiating any action against the CBI chief.
Chief Justice Ranjan Gogoi asked "The fight between the two senior most CBI officers did not emerge overnight, so why did government take immediate steps to divest the CBI Director Alok Verma of his powers without consulting the Selection Committee?"
The Court also questioned "What prompted Government to take an overnight decision on October 23 to divest CBI director Alok Verma of his powers? When Verma was retiring in few months, why not wait for few more months and consult selection committee?"
SG Tushar Mehta told the Supreme Court that since the situation was extraordinary, CVC had to resort to extraordinary remedies.
The bench comprising of Ranjan Gogoi CJ, S K Kaul J. and K M Joseph J. has reserved its verdict after the conclusion of the hearing.
On January 8, 2019, Supreme Court has reinstated Alok Verma as the Director of CBI and set aside the government's order that divested him of his powers.The Supreme Court has also set aside the appointment of M Nageswara Rao as interim chief of CBI.
Further, the court has asked a High-powered Committee under Delhi Special Police Establishment (DSPE) Act, 1946, consisting of the Prime Minister, the Chief Justice and the Leader of the Opposition, to meet within a week and look into the matter against CBI Director afresh. Supreme Court has observed that ideally, the government should have referred the matter to this committee before taking any action.
The Court held that it cannot be oblivious to the directions contained in Vineet Narain & Ors. v. Union of India (1997):
"...necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results."
"In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law."
Looking at all the facts in hand, the judgment of Vineet Narain Case and the provisions of the DPSE Act, the Court said:
“An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office of the Director, CBI from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.”
The judgment was pronounced by the bench consisting Justice SK Kaul and Justice KM Joseph while the CJI Justice Ranjan Gogoi, who was heading the bench and has authored the judgment, was on leave.
Until any further action of the committee, Alok Verma cannot undertake any major policy decisions.