The Supreme Court verdict in Alok Verma vs Government case is being hailed as the vindication of the autonomy of the CBI, more especially as the vindication of Director Alok Verma’s stand against the government. While that may be true, the apex Court has erred in placing procedure above substance. While setting aside the government order sending Alok Verma on leave, the Court said:
- The government has no authority to send Director Alok Verma on leave. The power to take any action against a CBI Director rests only with the high-powered committee (comprising Prime Minister, Chief Justice, and Leader of the Opposition in the Lok Sabha) that is responsible for his appointment for a fixed tenure.
- The high-powered select committee should meet within a week in order to decide on whether any action must or needs to be taken against Alok Verma.
The Court also set aside the Centre’s decision to appoint Joint Director M Nageswara Rao, as the agency’s interim chief. The Court observed that “If there was intent to specify interim measures for Director CBI then the legislation would have contained the provision.”
The order of the final interpreter of the Constitution and law should be read along with its observations during the proceedings in the case.
October 24, 2018: While admitting Alok Verma’s petition, the court asked the Central Vigilance Commission (CVC) to complete the enquiry (under the supervision of a retired Supreme Court judge) into allegations against him within 10 days.
October 27, 2018: The Court extended the time limit to 14 days.
November 16, 2018: After perusal of the CVC report Chief Justice Ranjan Gogoi observed that “the report on Verma was very complimentary on some charges and very uncomplimentary on others. Some other charges require further inquiry.”
November 30, 2018: Chief Justice Gogoi asked a hypothetical question, “If a CBI director is caught red-handed, can he remain in the post for a second?”
The Court further observed that it would discuss the CVC report on the charges against Alok Verma only if it concluded that he had been legally divested of his powers in view of the contention that a high-powered committee should have cleared the decision.
By its order dated January 8, 2018, the Court has answered the hypothetical question it had raised, contradicted its own stand during proceedings and refused to fill the gap left by the legislation.
- The government will remain a mute spectator even if the CBI Director is found indulging in a serious crime. Govt cannot do anything even if he is caught red-handed taking bribe or committing murder. The government will have to call the meeting of the high-powered committee to decide what to do.
- The Court was in a great hurry to get a report from the CVC. The COurt saw noted that the report containing some “very uncomplimentary” findings. However in the order, the Court remains unperturbed and refers the report to the select committee to decide whether any action was called for.
- In the 1997 order in the Vineet Narain case, the Court filled a lacuna left by the legislation and fixed CBI director’s tenure as two years. However, the Court does not use the present opportunity to fill the lacuna left by the legislation about interim measures.
Such an order coming from the highest court of the land does not augur well for the smooth functioning of the government. Okay, the high-powered select committee that appoints CBI director should also decide whether he should be allowed to continue in the post in the light of serious charges against him. But what will happen if the Leader of the Opposition (or, the leader of the largest party in the Lok Sabha, as is the situation today) refuses to attend the meeting and the committee is unable to meet? Should the committee wait indefinitely for the pleasure of the Leader of the Opposition or go ahead without him? The Supreme Court has made an important administrative issue a political issue.
The curtain on the drama, CBI Director vs Government, has not fallen. Let us see how Mapanna Mallikarjun Kharge responds to the call for the meeting. Since the Congress party has been supporting Alok Verma, it is quite possible that he will not find any substance in even “very uncomplimentary” findings. In that case, the role of the Chief Justice of the Supreme Court will be the deciding factor. The Chief Justice has already given his views on November 30. In other words, the decision of the majority of the high-powered committee will decide Alok Verma’s fate. That decision may not be favourable to Verma.
Is this the reason the Chief Justice is on leave today?
Ideally, the Supreme Court should have sent the CVC report to the select committee for consideration and action immediately after it discovered “very uncomplimentary” charges.
The bottom line is that for the Indian judiciary procedure is more important than substance. Even if a CBI Director is caught red-handed taking bribe or favouring a person who is facing an enquiry, the government cannot take any action. The Director can happily go back to his office, destroy the evidence and complete the work for which he has taken the bribe. The Leader of the opposition can keep the government waiting.
January 08, 2019
A reader, Radha Krishna Murthy Mukkamala (firstname.lastname@example.org), has commented as follows:
“In this episode, it is crystal clear that bribe was received by a CBI Top Officer. The TDP MP CM. Ramesh was involved in the bribe through a proxy/middleman. If this is correct, the hue and cry being chorused by all the TDP men right from AP CM. It means that they used their tenure of office in the past used to influence important circle of the Central Government and now using them against the Govt. with allegations to coerce it towards their advantage. It looks that this aspect is not noticed by any.
Another aspect is as rightly pointed out by this author, what should be fate of administration and administrative norms if they are breached in any way. This aspect could have been examined and clear directions given. Absence of the above and absence of the CJI is mysterious and not understandable. I hope this issue will end in a fair manner without detriment to the interests of the Country and public.”
I am suprised that the Court took more than two months to pass an order that the government decision to send him on leave was wrong. If the govt has no authority, the Court should have said so soon after Alok Verma’s petition was admitted. Did the Court require more than two months to realise this?
As I have written, the Supreme Court should have referred the CVC report to the Select Committee much earlier. Now the Court has allowed Alok Verma to rejoin the office. The restrictions on his functions do not mean much. Does the Court order debar him from filing any FIR against anyone or from looking into the progress in any investigation? No.
What will happen if the Committee comes to the conclusion that some of the charges against Verma warrant legal action? Will it not mean that the Court erred in allowing such an officer to remain in office, especially when the Court had read the CVC report and found something “very uncomplimentary”?
In the absence of legislative provisions to deal with such a situation, the Supreme Court should have ruled that when serious charges are found against CBI Director, he should be immediately ordered to proceed on leave pending complete investigation. Such an officer cannot be allowed to function as CBI Director even for a minute. On several occasions, the Supreme Court has given ‘judge made’ law. The Court has even ‘amended’ the Constitution. The Collegium system amounts to ‘amendment’ of the Constitution.