The Supreme Court leaves open the problem of disciplinary action.
The Supreme Court’s order reinstating Central Bureau of Investigation (CBI) director Alok Verma is a decision of major political significance. It could have serious long-term implications for the functioning of the CBI. The facts involved in the ongoing saga are somewhat familiar but worth recalling.
On 23 October, 2018, the Central Vigilance Commission (CVC) issued an order divesting the Verma of his powers and functions with regard to cases registered under the Prevention of Corruption Act, 1988. This order was issued pursuant to a complaint sent to the CVC by the cabinet secretary regarding the corruption allegations, and was an interim measure until they could be addressed. Subsequently, the government issued an order divesting the director of his powers and functions in entirety.
Ever since the CVC was given a statutory footing in 2003, it has been responsible for the functioning of the CBI, and its order was sought to be justified on the considerable powers that it has. The 2003 changes also led to changes in the Delhi Special Police Establishment Act, 1946, which is the relevant law governing the premier investigation agency. It was specified that the CBI director would be appointed by a committee consisting of the prime minister, Leader of Opposition, and chief justice; that the director would hold office for a period of two years; and that the director could not be transferred except with the approval of the committee that appointed him.
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The core question before the court was: Should the transfer provision in the Delhi Special Police Establishment Act be understood in its ordinary usage to refer to a shift in post, or be read broadly to include divesting the CBI director of his/her powers and functions?
The petitioners argued in favour of this broad reading, contending that it would otherwise be possible to fully rob the CBI director of his role without a formal transfer. Preventing such a situation was, the petitioners argued, crucial to preserving the independence of the investigation agency and maintaining the spirit of the legal architecture upon which it rests.
The court agreed with this reasoning. There is doubtless some merit to the claim that there might be ways to circumvent the formal transfer process and yet effectively remove the CBI director from his post. By taking away all of his powers and functions, the state could transfer the CBI director in substance while allowing him to keep his post in form, and thereby avoid seeking the approval of the very committee that had appointed him.
As the court noted, the state could ‘effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post’.
Given that the Delhi Special Police Establishment Act explicitly states that the director’s transfer requires approval from the committee that appoints him, the submission by Attorney General KK Venugopal, who appeared for the government, that the appointment committee becomes functus officio once the appointment is made, is clearly off the mark.
Yet, it does raise one important question, and it is one that remains unanswered in the Supreme Court’s verdict. The court holds that a ‘transfer’ must include cases where the director is deprived of all his powers and functions, and is thereby all but transferred.
This is not unreasonable, but it raises the following question: What happens in all other disciplinary situations involving the CBI director? Who has the power to discipline the CBI director? What happens when there are forms of disciplinary action that do not involve either a transfer or an effective transfer (such as the deprivation of all powers and functions)?
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The lack of legal clarity here can have major implications for the functioning of the CBI. To be sure, the problem is not entirely of the court’s making. It is partly brought about by the Delhi Special Police Establishment Act, which says far less than it should on suspensions and other instruments of discipline. But it is also partly brought about by the present decision, which regards actions that are effectively transfers as real transfers, but says nothing about the state’s power to discipline the CBI director in other situations and through other means.
By moving beyond a strict reading of the transfer provision, the court has opened up the question of whether the appointment committee must now become the disciplinary committee in every instance involving the power and functions of the CBI director.
This can hardly be meaningful institutional design, and it is certainly not what is demanded by the Delhi Special Police Establishment Act.
In this respect, the submission by Additional Solicitor General Tushar Mehta that the Act does not alter the fact that the CBI director is still a public servant and is subject to disciplinary control by the state barring the specific exceptional circumstance of his tenure and removal, captures something important.
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In its judgment, the court was left with ‘no doubt that the clear legislative intent … [was] 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’.
Though the court’s decision does appeal to a reasonable argument, its silence on the disciplinary implications of its verdict opens up a major grey zone.
As we have often seen, not least of all with regard to the judiciary, the balance between accountability and independence has left us with more questions than answers.
Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows.