The 5 questions that should have been answered today but weren’t

Nov 12, 2018

My take on the CBI issue after SC takes evasive action again and refuses to answer a straight question: Was it legal for the government to send Verma on leave? 

The first and most critical question was for the Supreme Court to answer: Legality of the central government’s order sending CBI director Alok Verma on leave in the mid-night coup. The government cut short his two-year tenure guaranteed by the Supreme Court’s Hawala judgement of 1997, which was later incorporated into the Delhi Police Special Establishment Act of 1946 (DPSE Act). Verma’s two-year tenure was to run till January, 2019. This was also the first question Verma’s petition raised in the apex court, but was not considered during the October 26 hearing or find any mention in the court’s interim order.

Back in the time of the Hawala scam in 1990s, the apex court was so serious about protecting the two-year tenure of a CBI director (as a part of arrangements to grant the agency autonomy and insulate it from government interference) that it only provided for his/her transfer within the tenure only “in an extraordinary situation” with the “approval of the selection committee”. No other way of cutting short the director’s tenure was mentioned, not even in the DPSE Act.

The second critical question is the legality of M Nageshwar Rao’s appointment as interim director: Was the due process mandated by the Hawala judgement and DPSE Act followed? The apex court’s interim order is silent on this too. The established process, as per the Hawala judgement and DPSE Act, is that a selection committee led by the Central Vigilance Commissioner – with Vigilance Commissioners, Union Home Secretary and Union Secretary (Personnel as members – draws up “a panel” of IPS officers on the “basis of their seniority, integrity, experience in investigation and anti-corruption work” and then recommend names to the central government. Was this process followed and if so, who were the officers shortlisted? How a relatively junior officer – Naheshwar Rao is a 1986 batch officer holding the post of a joint director in the CBI then – with corruption cases against him being probed by the CBI itself was selected?

It may be pointed out here that after the Lokpal and Lokayuktas Act of 2013 came into being the composition of the selection committee has changed. It now comprises of the Prime Minister, Leader of Opposition and Chief Justice of India. It is a different matter that appropriate amendment has not been made in the DPSE Act yet. Other elements of the due process remain the same. It is this new selection committee which approved Verma as the director in 2017. An associated question then is: Did this committee meet to approve Rao’s appointment? There is neither an alternate method of appointment nor any mechanism for an “interim” director in the relevant law or the Hawala judgement.

Intrinsically associated with the above questions is the third critical question: Why has the Lopal not been instituted yet? The law was notified in January 2014 – more than four-and-half years ago. The Lokpal was conceived as the apex anti-corruption watchdog after a long and nation-wide political battle led by Anna Hazare and Arvind Kejriwal, in which the BJP, now in power at the centre, and its associate organisations played active and critical role. In fact, a great deal of credit for the BJP’s massive mandate in 2014 goes to this anti-corruption movement. In spite of the repeated prodding and rebuke from the apex court, the Lokpal is nowhere to be seen. The question is why? Is the government not serious about fighting corruption?

The Hawala judgement led to the Central Vigilance Commission (CVC) Act of 2003 and the “responsibility of superintendence over the CBI’s functioning” was entrusted to it to free the CBI from government interference. But the CVC has failed spectacularly – as is evident from the mess the CBI is now in. There are corruption charges against the three main players in the agency by the agency itself – Verma, Rao and Rakesh Asthan, special director who was sent on leave along with Verma. The two top officers, Verma and Asthana, are now fighting each other openly through the courts (the matter is before the Supreme Court and Delhi High Court) and outside.

The CVC’s failures were evident after the first man to head it in the aftermath of the Hawala judgement, N Vittal, retired in 2002. The Lokpal was conceived to fill this gap. Section 25 of the Lokpal and Lokayuktas Act gives it the power of superintendence over the CBI. Though this power extends only to the cases entrusted to the CBI by the Lokpal, the existing law can be treated as work-in-progress and suitably amended to remove legal ambiguities around the CBI’s functioning.

Other administrative and legal mechanisms may also be explored to insulate CBI from political interference, but this issue has to be settled now if the mess around it has to be cleared for once and all.

The fourth critical question is: How did Verma with no experience in CBI or anti-corruption experience, as alleged in the dissenting note of the selection committee member Mallikarjun Kharge, was selected? Who drew up the list and who were the other officers in the list? The case of Asthana is even more curious. His promotion as special director was not only opposed by Verma in writing but also challenged in the apex court. This was an unusual case as he was being probed in a corruption case by the agency itself while being promoted. Though it was dismissed by the court then, the situation is different now that the CBI has filed an FIR against him in a corruption case – which was apparently the provocation for the mid-night coup. While the CVC is probing the corruption charges alleged against Verma, at the apex court’s prompting (interim order), what is the status of the corruption case against Asthana? Surely, the FIR can’t be brushed aside just yet.

The fifth and final question is: Why the legal and administrative arrangements around the CBI’s functioning continue to be anomalous?

There are three laws governing the CBI’s functioning – the CVC Act of 2003, DPSE Act of 1946 and Lokpal and Lokayuktas Act of 2013. These laws set out two different selection committees for appointing CBI director. There are different arrangements for superintending and administrative powers over the CBI. As per the existing DPSE Act, it is the CVC which is supposed to have the “superintendence and administrative” power over it. The Lokpal law also provides superintendence over the CBI to the extent of cases entrusted to it by the Lokpal. Real life experience shows that the department of personnel of the Government of India too has administrative control over it.

It is no longer clear who runs the CBI.

So long as these issues are not addressed are answered satisfactorily, there is no way the CBI can uphold its credo or get out the mess it finds itself in.