The Leaflet

| @theleaflet_in | February 1,2019

ATTORNEY General for India appearing for the Central Government today, February 1, 2019, submitted before a two-judge bench comprising Justices Arun Mishra and Navin Sinha of the Supreme Court that High Powered Committee comprising Prime Minister Narendra Modi, Leader of single largest Opposition party in Lok Sabha, Mallikarjun Kharge and Justice A K Sikri had also consented on January 10, 2019, to the appointment of M Nageswara Rao as interim director CBI.

To substantiate his submission, Attorney General placed before the bench minutes of High Powered Committee’s meeting held on January 10, 2019, in a sealed envelope wherein appointment of Rao as interim Director CBI was approved.

However, Attorney General did not make it clear whether it was also decision by a majority as was the case with the decision to transfer erstwhile CBI Director Alok Verma.

This disclosure has come to the light during a course of hearing of Public Interest Litigation (PIL) filed by the NGO Common Cause and noted RTI activist Anjali Bharadwaj who have approached the Supreme Court of India seeking quashing of the appointment of IPS officer M Nageswara Rao as the interim Director CBI. Rao was given charge of the office of the Director CBI by an order dated January 10, 2019 issued by the Appointment Committee of the Cabinet.

The said order came to be issued after transfer of Alok Kumar Verma from the office of the Director by the High Powered Committee (HPC) comprising the Prime Minister Narendra Modi, the Leader of single largest opposition party in Lok Sabha Mallikarjuna Kharge and Justice A K Sikri. The HPC, by a vote of 2:1, decided to transfer Alok Verma, out of the CBI. Mallikarjuna Kharge had dissented with the majority decision.

Matter was listed before a bench presided over by Justice Arun Mishra after a series of recusals of three-judges from this case namely CJI Ranjan Gogoi, Justices A K Sikri and N V Ramana.

 

Also read: Third in row: Now Justice N V Ramana too recuses himself from hearing plea challenging appointment of M Nageswara Rao as interim director CBI

 

Justice Arun Mishra at the outset of the hearing inquired from the Attorney General as to why has not the appointment of regular Director been made so far? Justice Mishra also said an interim director cannot continue for a longtime. To this, Attorney General submitted that one of the members of the High Powered Committee, Mallikarjuna Kharge had sought more details about the candidates being considered for the post of the CBI Director. It was for this reason, HPC could not take decision on January 24, 2019.

Attorney General submitted that High Powered Committee is meeting today, and all the material have been made available to Leader of single largest opposition party in Lok Sabha Mallikarjuna Kharge and decision to appoint CBI Director likely to happen today. Supreme Court after taking note of this submission of the AG, posted the matter for hearing on February 6, 2019. Court has made it clear that it would not look into the transparency aspect of the Selection process at this stage.

 

Background of the Case

 

The Petitioners, through advocate Prashant Bhushan, have alleged that the appointment of Rao as interim Director is illegal, arbitrary,​ mala fide and in violation of the provisions of the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the judgment dated January 8, 2019 of the Supreme Court in Alok Kumar Verma v. Union of India wherein the court had quashed the appointment of M Nageswara Rao as the interim Director CBI, along with the orders of the DoPT and CVC divesting Alok Verma of his powers and functions as CBI Director.

The Petitioners have contended that the order dated January 10, 2019 states that the Appointment Committee of the Cabinet has approved the appointment of M Nageswara Rao “as per the earlier arrangement”. However, this earlier arrangement i.e. Order dated October 23, 2018 making Nageswara Rao interim CBI Director, had been quashed by the Supreme Court vide order dated January 8, 2019 as it was made in violation of the procedure for appointment of CBI Director as defined in the DSPE Act.

However, the government still invoked its earlier order which had been quashed, to once again make Nageswara Rao Interim Director of the CBI even though it is not the competent authority and does not have any powers to make the appointment, without following the due process laid down in the DSPE Act i.e. appointment based on recommendations made by the high powered selection committee.

 

Also read: [Read Petition] Appointment of M Nageswara Rao as interim Director CBI challenged in the Supreme Court

 

Lack of transparency in the appointment process

 

The Petitioners have also sought direction from the Court to ensure transparency in the process of short-listing, selection and appointment of the Director of the CBI. The lack of transparency in the appointment of the Director, CBI, prevents any public scrutiny of the appointment process and allows the government to exercise undue influence in the appointment process especially at the stage of short-listing of candidates, says petition.

One of the Petitioners, Anjali Bhardwaj, has also drawn the attention of the Court to her RTI applications seeking information about meetings of the selection committee, including the date of meetings, copy of agenda of meetings, copy of minutes of meetings and details of persons who attended each meeting; details of any process adopted by the government to short-list candidates for consideration by the selection committee and a copy of any short-list prepared; and details of any committee set up to prepare such a short-list, since no such information had been proactively disclosed anywhere by the government.

However, the Government has failed to provide any relevant information in response to these applications for information. No details about the minutes of the selection committee meetings or search committee meetings (if any) or the copy of short-listed candidates were provided.

Also read: Would have opted out yesterday itself, had CJI passed order allotting the case to me: Justice A K Sikri says while recusing himself from PIL challenging appointment of Nageswara Rao as interim director CBI

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