Sunday, 27 November, 2022
HomeOpinionMallikarjun Kharge's dissents have given political colour to CBI head appointment: Jaitley

Mallikarjun Kharge’s dissents have given political colour to CBI head appointment: Jaitley

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The only thing constant in the high powered committee, which deals with the CBI director’s appointment and transfer, is the Kharge dissent.

The leader of the largest party in Opposition in the Lok Sabha Shri Mallikarjun Kharge dissented once again in the appointment of the new CBI Director. Shri Kharge dissents regularly. He dissented when Shri Alok Verma was appointed, dissented when Shri Alok Verma was transferred and has now dissented when Shri R. K. Shukla has been appointed. The only thing constant in the High Powered Committee comprising of the Prime Minister, the Chief Justice of India and the Leader of the Opposition which deals with the CBI Director’s appointment and transfer, is the Kharge dissent. Appointment of the CBI Director was a sole prerogative of the Government. The Government, i.e., the Council of Ministers is accountable to the House of the People. Appointments are made by the Cabinet either directly or by the ACC. It was felt that since investigation is an independent function, India’s primary investigating agency the CBI must maintain an arm’s-length distance from the Government. Hence the alternative opinion was voiced that the appointment should not be made by the Government alone but by a Collegium. The first institution to flag this concern was the judiciary. At the time of the drafting of the Lok Pal Law, the present Collegium was conceived. Since the Congress, in 2014, was not a recognized opposition falling below 10% of the seats in the last General Elections, the Government, maintaining the highest standards of fairness brought in an amendment wherein in the absence of a Leader of Opposition, the leader of the largest party in the Opposition was made a part of the appointment Collegium.

Also read: Mallikarjun Kharge objects to new CBI chief’s appointment, says selection criterion diluted

When the Leader of Opposition sits as a Member of the Collegium, he sheds off the political colour of his office as much as the Prime Minister and the Chief Justice of India shall both leave the authority of their respective domains and work exclusively towards appointing or transferring the Director on the criterion of merit or fairness. The position of Shri Kharge as the Leader of Opposition in the Lok Sabha, entitles him to sit in the Committee but the political colour of that office has to be left outside. Shri Kharge then is a part of a Collegium, which discharges a governance function. Unfortunately, that does not seem to have happened.

Dissents are a powerful instrument in democracy. They are more commonly prevalent in judicial pronouncements. Dissents are also a part of the parliamentary system particularly in the Legislative Committees. The dissenter places an alternative view point. Where Monetary policy Committees exists, dissents are occasionally given by Members. Dissent in appointment Collegium are rare but not unknown. I concede to Shri Kharge the right to dissent. The dissenter is an assertor. He values his views. He represents an alternative view point. A dissenter challenges the majority. He does it on the basis of a call of conscience dictated by his fair mind. He puts his dissent on record so that it can be of value to the wisdom of the future generations. A dissent should never be a political tool. The right to dissent is sacrosanct and has to be sparingly used. If a dissenter dissents on every conceivable occasion he comes out as a person either motivated by collateral reasons or as a person lacking objectivity.

Also read: This is how Mallikarjun Kharge defended CBI director Alok Verma at selection panel meet

There is a difference between the dissents as a part of a judicial body and dissents in ordinary matters of administrative appointments. The first may involve sacrosanct principles and the latter involves a preference or a dislike for a particular individual. When Lord Atkins dissented in 1942 in the Habeas Corpus in England case during the Second World War or when Justice H. R. Khanna in the Habeas Corpus case during the Emergency in 1976 and more recently when Justice Indu Malhotra dissented in the Sabarimala case, these were powerful dissents of a strong opinion. The dissenters believed that the dissent may help future generations in correcting what the dissenting Judges felt was an erroneous view of the majority. However in an administrative matter of appointment or transfer, if Shri Kharge dissents on every conceivable opportunity, namely on the appointment of Alok Verma, transfer of Alok Verma and the appointment of R. K. Shukla in relation to the CBI Directorship it clearly established a pattern of his frame of mind. He uses the weapon of dissent excessively and not objectively. Using the instrument of dissent recklessly neutralizes its value. Dissents frequently used in administrative bodies like Collegiums compels independent observers not to take the dissent too seriously. The perpetual dissenter in a Collegium meant for appointments sends a message that he was included as a Member because of his capacity of Leader of the Opposition but he hasn’t been able to shed his role as an Opposition Member, even though now he is a part of a Government Committee. His dissent has diminished it value and credibility.

Mr. Kharge’s dissent in the matter of the transfer of Alok Verma was coloured by his political views. He was a petitioner in the Supreme Court himself in support of Alok Verma. He should have recused himself from the Committee since his views were known. He suffered from a bias and conflict of interest. Yet he did not recuse himself. The only task before the Committee was whether the CVC report contains the adequate material for transfer of the Director or not. He wanted the Committee to either ignore the CVC report or sit in appeal against the finding of the CVC – something which was beyond the jurisdiction of the Committee.

Also read: When a Facebook post almost got Arun Jaitley tried for sedition

Shri Kharge has dissented a bit too frequently. Many may wonder if Collegium’s are workable. The appointment of a CBI Director was never envisaged to be a political battle. Shri Kharge has made it look like one.

This article is taken from Arun Jaitley’s Facebook notes, you can read the original article here.

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  1. Mr Jaitley is in the position he is in, simply because his party gave a political color to India as a country – leave alone CBI appointments. Most likely his and many other lawyers careers and money have been made on dissent be it frivolous – obfuscative – political – monetary – collusion delay . Quite likely Mr Jaitley understands all this . This is nothing but a political exercise which involves political patronage and political benefits. The common man should not even bother trying to make sense of it.

  2. 1. I agree with Arun Jaitley. A few days ago, we were told that the three member panel comprising (a) PM Narendra Modi, (b) Chief Justice of India, and (c) leader of Opposition in the Lok Sabha (Mallikarjun Kharge) has selected Rishi Kumar Shukla as Director of CBI. It was a majority and not unanimous decision of the panel, since Khargeji, as expected, dissented. 2. Hopefully, with this appointment, avoidable controversy regarding appointment to a very sensitive and highly politicized post would come to an end. 3. It is interesting to note that Khargeji thinks that R K Shukla has not worked in anti-corruption agency and hence he (Shukla) does not possess adequate experience of investigation of anti-corruption cases. 3. Citizen-voters like me wish that the Congress leader Mallikarjun Kharge is as serious about curbing corruption as he is about appointment of right person (as perceived by him) as CBI Director. In this context my query is this: is the Congress party against curbing political corruption? I am reminded of fact that just a few months ago Ghulam Nabi Azad, Congress leader in the Rajya Sabha, had opposed setting-up of Fast Track Courts, when a bill for setting-up of these Fast Track Courts, was being discussed in the Rajya Sabha. As we all know these Courts, which are being set-up as suggested by the Supreme Court, are expected to expedite trials of corruption & other cases filed against lawmakers. But then who is wishes to protect the corrupt? This is my simple question to Khargeji!

  3. Will Mr Jaitley please explain why Asthana, the root cause of all the evil that now plagues the CBI, was parachuted into the CBI in the first place?

  4. The hallucinations have a twisted logic which implies that the Chief Justice of India colluded with Modi to avert possibility of launching investigations in Rafale matter. The answers to his two questions are simple : (1) Modi never chose Ambani. As of now, there is just a JV between Dassault and a ADAG company. Whether it will get any share in the total offset amount of Rs30000 crore is not officially known, though the CEO of Dassault has confirmed in an interview that it will be just around 3% of the total offset amount. The production in the JV will be not of Rafale jets but of component of Falcon planes. (2) He reduced figure from 126 to 36 as Dassault refused to guarantee the quality of production proposed to be made at HAL. Even if Modi gets defeated in 2019, which not an unlikely scenario, the Rafale investigations will not achieve anything tangible. To link this issue with appointment of CBI chief is madness, to put it mildly. However, I also have a disagreement with Mr. Jaitley. The method of selecting CBI chief is inappropriate. Whichever party may rule, the leader of opposition , on some pretex or the other, is bound to dissent and the casting vote will always be with the CJI. Just remove the two politicians form the committee and induct professionals of proven merit and integrity.

    • It is double madness to say Dassault vetoes how many planes India should have for its defence, HAL or no HAL. By that time EUROFIGHTER too had flown into contention and was said to be 20% cheaper.

      President Hollande was the man who discussed the stuff with Mr Modi, and he said that they were given no choice other than Anil Ambani; Dassault itself spoke approvingly of HAL barely a few weeks before AA dropped down out of the blue; foreign Secretary Shiv Shankar mentioned HAL barely a few weeks before AA arrival; AA company’s balance sheet mentions something about 30 or 36000 crores; offset partners with reference to Rafale were mentioned in the context of RAFALE manufacturing in India and not Falcon; if AA was not to be given the plum job of manufacturing Rafale, then who was to do it? L&T? TATA? MAHINDRAS? Who are the other 29 names in the list of 30 for RAFALE OFFSET PARTNERS? Can the government release the complete list of 30? Is any of them capable of taking on this herculean task?

      Why was this businessman with dubious business credentials flying around WITH THE PRIME MINISTER OF INDIA on top confidential defense related visits when EVEN THE DEFENCE MINISTER of the country was not on board. Some reports say he was inaugurating a new fish market in Goa when he heard the news!!!! And his coy response was, “no I was not a part of the deal but I endorse Modi ji’s decision”. The legal question is, do you endorse official decisions on legal soundness or feudal friendship?

  5. It is surprising how calmly Mr Jaitley accuses somebody else for giving “political color” to something which should be above politics. I fully agree with him; but doesn’t he know that Mr Rishi Shukla had already been “politically tainted”, so using “political color” in matters concerning him can only be expected? Mr Shukla was the DGP of Madhya Pradesh during the BJP rule there, but during the recently conducted state elections he was “on leave”, or was perhaps asked to go on leave. Why? I have offered the following comment to another of THE PRINT’s articles on the same subject of CBI director’s selection, so I don’t know if they will allow me to repeat it here. But I’m copying it below all the same, just in case they do:

    Today’s THE FREE PRESS JOURNAL on its page 5 (flowing on from page 1) gives interesting data presented by Mr Kharge about 5 contenders for the CBI chief’s post.
    Of all the five, Rajiv Rai Bhatnagar has 170 months of experience in investigation, 25 months in anti-corruption. If for brevity I write it as 170/25, then other contenders figures are:
    Sudeep Lakhtakia: 155/14
    A.P. Maheshwari: 147/14
    Rishi Kumar Shukla: 117/0.
    Today’s THE INDIAN EXPRESS mentions that the fifth contender, S. Javed Ahmad has a total experience of 303 months (his anti-corruption experience is not mentioned separately, but should be substantial looking at his overall figure which is a good 130 months more than the next senior most contender, R.R. Bhatnagar).
    It is clear from the above that Rishi Shukla has minimum overall experience, and ZERO in anti-corruption. (A Supreme Court verdict had stated that a CBI director should have high experience in anti-corruption.) His appointment is “political” is clear from the fact that he was removed from the post of DGP of Madhya Pradesh within days of the Congress forming a government there. So, perhaps he was seen as a “BJP man”, a fact that is confirmed by his winning favour with Mr Modi.
    This appointment will assure that CBI will not open the Rafale investigation for at least another 2 years, which will be the tenure of Rushi Shukla.

    This is very interesting. If the BJP loses in 2019 general election, then the Rafale investigation will begin sometime in 2021. It will near completion in 2-3 years after that, around 2023-24. Haha, just about the time of NEXT general election in 2024! So what are the implications of this — are we going to have a BJP-mukt government for 10 straight years??!! My God, am I hallucinating or what?

    (My euphoria is based on my belief that Mr Modi will never, NEVER be able to defend 1) why he chose Anil Ambani, and 2) why he reduced the figure from 126 to 36).

  6. The rationale for associating the LoP with the exercise is to ensure impartiality and the selection of someone who is completely apolitical, given the nature of the cases he will be dealing with. The effort should be to secure unanimity in the decision making process.

  7. Yes, but this article would be more credible if the removal of the CBI post holder had been done in a clear and transparent manner. Positions of high responsibility must be filled by people of integrity and beyond suspicion. But what emerges from the boondoggles that have taken place in various structures these days is a hint of partiality. It is a pity because the governors pass and change, but the officials remain because it is they who assume the continuity of the state. This aspect seems to be ignored.

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