Tuesday’s SC order can be read as a sharp rebuff to the Modi government, but it leaves several questions unanswered. ThePrint looks to clarify some.
New Delhi: A three-judge bench of the Supreme Court Tuesday set aside the Narendra Modi government’s October decision, based on the recommendation of the Central Vigilance Commission (CVC), to divest Central Bureau of Investigation (CBI) director Alok Kumar Verma of his charge and send him on leave.
However, while doing so, the bench, headed by Chief Justice of India (CJI) Ranjan Gogoi, restrained Verma from “taking any major policy decisions” till the high-level committee (HLC) decides the issue of “divestment of power and authority of the Director” in the next seven days.
The “high-level committee” referred to is the one headed by the prime minister comprising the leader of opposition in the Lok Sabha and the CJI which selects the CBI director.
The judgment can be read as a sharp rebuff to the Modi government, but not as a major victory for the reinstated CBI chief, who retires on 31 January.
It also leaves several questions unanswered. ThePrint looks to clarify some of the issues raised by the judgment.
Does Alok Verma regain his post till retirement?
No. The Supreme Court has only said that the orders passed by the CVC and the Centre were not as per the relevant rules of the Delhi Special Police Establishment Act, 1946.
It adds that the HLC which chooses the director as per Section 4A(1) of Delhi Special Police Establishment Act should meet in the next seven days to consider the issue of “divestment of power and authority of the Director, CBI”.
If this committee finds the charges against Verma grave enough to merit sending him on leave or even his suspension, it can so decide. Alternatively, the committee can decide to be allow Verma to continue in his post till he completes his term on 31 January.
Also read: In Supreme Court’s Alok Verma judgment, a resounding call for CBI’s freedom
What does the order mean about ‘major policy decisions’?
The Supreme Court has told Verma to “cease and desist” from taking any major policy decisions till the PM-led committee decides his case.
While the court hasn’t clarified what it means by “major policy decisions”, it has said that Verma’s role “will be confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications”.
The judgment doesn’t bar him from supervising ongoing probes. But he can’t take major decisions that could impact the functioning of the probe agency.
Has the Modi government lost face?
Yes and no. Whenever a court, especially the Supreme Court of India, sets aside a government decision in such a sensitive matter, it is a blow to the government.
However, two aspects of the judgment help the government: First, the judgment has not categorically questioned the basis for the government’s order — it has only found the process by which Verma was sent on leave arbitrary and illegal.
Second, the HLC could send him on leave, again, within a week, and thereby justify the government’s earlier action.
The first response by activist lawyer Prashant Bhushan, who had questioned the action against Verma, on Twitter said a lot.
SC quashes Govt decision to remove Alok Verma as CBI Director. But does not restore the time that he was illegally kept away & further restrains him from taking policy decisions! Still, that will not prevent him from ordering registration of FIRs & dealing with investigations
— Prashant Bhushan (@pbhushan1) January 8, 2019
What about selection of Verma’s replacement?
The HLC is responsible for the selection of the next CBI director from among the names sent by the CVC. At its meeting, it may discuss the names of the eligible candidates and choose Verma’s successor.
Also read: Cong, other opposition parties call SC order reinstating CBI chief a big blow to Modi govt
What about the charges against Verma?
The judgment is silent on this point.
On 31 August, 2018, the CVC was sent a complaint dated 24 August, 2018, by Cabinet Secretary Pradeep Kumar Sinha, which accused the CBI director of corruption. The CVC sought the explanation/comments of the director along with relevant records.
However, according to the CVC’s version, instead of cooperating, Verma sought information regarding the identity of the complainant and also leveled specific allegations against CBI special director Rakesh Asthana.
The CVC was asked to submit a report to the Supreme Court, and it submitted two on the issue, in a sealed envelope.
The court order is silent on what the reports say or what, if any, action it intends to take on the basis of the reports. There is no bar on either the CVC or the CBI, if they want to further probe the complaints.
Could the Supreme Court have done more?
The top court has missed a big opportunity here. Ideally, it should have used the case and the confusion surrounding the action against Verma and others to lay down the law on how to deal with such situations in the future.
It could have settled the issue of how complaints against future CBI directors should be handled and whether the CBI director can or should be sent on leave/suspended pending inquiry into complaints of serious nature.
It could have also addressed the issue of whether the CVC should be bound by the director’s opinion when finalising senior level appointments in the CBI, given that Verma had opposed the appointment of Asthana as his deputy on the grounds that there were serious allegations against him.
Unfortunately, the Supreme Court didn’t delve into these crucial issues related to the independence of the CBI. It has left dangling too many loose ends.
There is one more aspect to this case. CJI Ranjan Gogoi is dealing with the same issue in two different capacities, one as an SC judge hearing the case and second, as member of the HLC. Decisions of the HLC are liable to judicial review. In that case, either he sits in judgment over his own administrative decision or allows a junior colleague to hear the matter and – potentially – strike down the decision. 2. In theory, making the CJI a member of a body like the HLC adds impartiality and gravitas. In practice, it can lead to an awkward conflict of interest. There is a case for the CJI to not assume any role other than the head of Court no 1 and, of course, the Collegium. 3. One can think of at least three decisions from this learned Bench that feel incomplete and unsatisfactory. The proceedings in respect of the NRC, which have created a very difficult situation on the ground; Rafale; and now this.
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