[dropcap]A[/dropcap] three-judge bench of the Supreme Court comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices Sanjay Kishan Kaul and K M Joseph on Tuesday, January 8, 2019, restored all the powers and functions of Alok Kumar Verma which he had held by virtue of being the CBI Director. The Court has, at the same time, restrained him from taking any major policy decisions till the time High Powered Committee (HPC) decides his fate on the allegations against him as levelled by the CBI Special Director Rakesh Asthana.

The Supreme Court has also quashed both the orders dated October 23, 2018 issued by the Central Vigilance Commission (CVC) and Department of Personnel & Training (DoPT), whereby Verma was divested of all his powers and functions as the CBI director. Appointment of M Nageshwar Rao as an interim Director of the CBI has also been quashed. But the Court has said nothing explicit about the validity of the decisions/consequential orders of transfers of CBI officials, including one Investigative Officer (IO) A K Bassi — who was probing CBI Special Director Rakesh Asthana — and shunted out to Port Blair. Those transfers orders were signed by the CBI interim Director Rao. The Court has, however, granted liberty to challenge the correctness of the orders issued by Rao before the appropriate forum.

Verma had challenged the decision of the CVC and DoPT divesting him of his powers and functions primarily on the ground that Section 4B of the Delhi Special Police Establishment Act (DSPE), 1946 provides the two-year period of the Director's tenure notwithstanding anything to the contrary. This is precisely to secure the independence of the CBI, but the same has been violated by the Central Government and CVC.

Further, Section 4B of the DSPE Act, 1946 fixes a tenure of not less than two years of the CBI Director. It says: "The Director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office." In addition, Section 4B(2) puts bar on the transfer of the CBI Director without the previous consent of the committee that initially recommends the names for the appointment of the CBI Director.

Thus, the issue since the very inception of this case before the Court was purely on the question of law, i.e. competence of the CVC and the Government of India to divest the Director, CBI of all his powers, functions, duties, supervisory role, etc. without obtaining the prior consent of the Committee constituted under Section 4A(1) of the DSPE Act to make recommendations for appointment of the Director, CBI.

However, for the reasons best known to the Court, it went into the realm of sealed envelopes and spent at least a month in that exercise, which later turned out to a futile exercise in view of the Court deciding the pure question of law. And now the Court says that exercise of asking CVC to probe the allegations under the supervision of retired Supreme Court judge A K Patnaik,  has now become wholly unnecessary in view of the decision on the jurisdictional issue.

On the issue of interpretation of DSPE Act

Supreme Court's order first gathers the legislative intent behind having the provisions 4A and 4B in the DSPE Act. The purpose behind these provisions as found by the Court is to ensure 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. For arriving at this conclusion, the Court has heavily relied upon its judgment in Vineet Narain case. At para 32 to the judgment in Alok Verma's case, Court has noted:

"32           There is no manner of doubt that the enactment of the CVC Act, 2003 and the amendments made by the said enactment, inter alia, in the DSPE Act (by Section 26 of the CVC Act, 2003) are a sequel to the operative directions of this Court in paragraph 58 of Vineet Narain (supra). The legislature in its wisdom had not considered the necessity of tempering down the directions of this Court in Vineet Narain (supra) in any manner whatsoever. The mode and manner of appointment of Central Vigilance Commissioner and Vigilance Commissioners as well as that of the Director, CBI as spelt out by this Court in Vineet Narain (supra) has been scrupulously followed by Parliament. In fact, at this stage, we may even take note of the fact that Parliament on its own in amending Section 4A of the DSPE Act by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) has gone a step further to give effect to the directions of this Court made in Vineet Narain (supra) inasmuch as the object for change of the Committee for making recommendations for appointment of the Director, CBI has been stated to be the necessity "to provide a High Power Selection Committee for selection of Director of the Delhi Special Police Establishment". 

On the above plinth, it must be understood as to why the Court has held at para 36 of the judgment that  "…..transferred except with the previous consent of the Committee", mentioned in Section 4B(2) of the DSPE Act. If the word "transferred" has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of "previous consent of the Committee" is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be self-defeating and would clearly negate the legislative intent. In such an event it will be free for the State Authority to 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. This is clearly not what the legislature could have intended…."

On the issue of the applicability of Sections 14, 15 and 16 of the General Clauses Act, 1897, so as to confer  power in the Central Government to pass orders which were challenged by Verma, including the order of appointment of an acting Director of the CBI, the Court held that in view of the explicit meaning of Sections 4A & 4B of the DSPE Act, the General Clauses Act will have no application in the matter. The Attorney General, on behalf of the Union Government, had tried to persuade the Court to rely on sections of the General Clauses Act, stressing — as recorded in the judgement — that: "Reliance has also been placed on the provisions of Section 16 of the General Clauses Act, 1897 to persuade the Court to recognise in the Central Government a power to divest the Director, CBI of his powers, functions, duties, etc. According to the learned Attorney the power to divest must be acknowledged to be the logical corollary of the power of appointment of the Director, CBI which is vested in the Central Government."

To negate this point, the Court observed: "This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisions contained in Sections 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act."

Hence, the Court has laid down a purposive interpretation of Section 4A(1) read with 4(B) of the DSPE Act to the effect that any tinkering with the tenure of the CBI Director will require approval of the High Powered Committee, as mentioned in Section 4A(1) of the DSPE.

This approach of the Court is exactly the same which I argued in my previous article on this issue, wherein I said: "The argument — that Alok Verma has been sent on leave, and not transferred and therefore, law has not been violated — does not hold water. It is a settled proposition of law that what cannot be done directly, is not permissible to be done indirectly. In the present case, shunting out of Alok Verma on forced leave for an indefinite period of time has in effect amounted to his removal from the post before the expiry of fixed tenure of two years. Fixed tenure signifies functional tenure, and if the argument of distinguishing 'forced leave' and 'transfer' is accepted in the present case, then every government will find it easy to send the CBI director on leave instead of transferring the office bearer and the very purpose of having fixed tenure of two years will become redundant."

Also read: By divesting Alok Verma of his post as CBI director, Modi government has mocked the law; 'fixed tenure' means functional tenure

Reinstatement of  Alok Verma

Though the Supreme Court has restored all his powers and functions as CBI Director, it has, on its own, held: "Alok Kumar Verma, Director, CBI, upon reinstatement, will cease and desist from taking any major policy decisions till the decision of the Committee permitting such actions and decisions becomes available within the time frame indicated. We further make it explicit that the role of the Petitioner Shri Alok Kumar Verma as the Director, CBI during the interregnum and in terms of this order will be confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications."

For this purpose, the Court has issued direction to the competent authority to convene the meeting of the High Powered Committee (HPC) within a week from today, January 8, 2019. Pertinently, the Court has not clarified as to what do "fresh initiative", "major policy" or "institutional implications" mean.

The term "fresh initiative" is very ambiguous a term in the context of the CBI Director. The question that arises is whether ordering a preliminary enquiry into cases of corruption be construed as "fresh initiative". It may be noted that doing investigation and registering preliminary enquiry into corruption cases or otherwise is a routine matter for the CBI and for that any other investigating agency. It is neither a fresh initiative, nor a policy decision that may or may not have institutional implications. Further, the policy decision with regard to CBI is taken with the consultation of Department of Personnel & Training (DoPT) which is the nodal ministry for the CBI.

At this juncture, it may be noted that Supreme Court had restrained interim Director of the CBI M Nageshwar from taking any policy decision until further orders by the Court. However, Rao ordered quite a number of preliminary inquiries, and lodging of FIRs during his tenure that includes FIR in UP mining scam that contained allegations against then Chief Minister of Uttar Pradesh Akhilesh Yadav, for a simple reason that preliminary inquires are not considered as part of policy matters.

With regard to routine transfer and posting of CBI officials for whom transferring authority is CBI Director, it can prudently be construed that Alok Verma can exercise that power as a matter of routine affairs.

It can, therefore, be inferred that today's order does not put any embargo on the CBI Director to register any preliminary enquiry, and carry forward the investigation of the cases, even including the filing of chargesheet.

Read the Supreme Court order in the Alok Verma case.

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2019/01/08083806/40089_2018_Judgement_08-Jan-2019.pdf[/pdfviewer]