IN A ROLLER COASTER series of decisions, a committee comprising Prime Minister Narendra Modi, the leader of the single largest party in the Lok Sabha Mallikarjun Kharge and the Chief Justice of India’s (CJI’s) representative Justice AK Sikri has removed the director of the Central Bureau of Investigation (CBI), Alok Verma. Verma was removed two days after he was reinstated by the Supreme Court. The court had, however, asked the high-powered committee to take a final call on the matter.
The Union Government had sent Verma and Special Director Rakesh Asthana on ‘leave’ two-and-a-half months ago. When Verma was reinstated, the Court had restrained him from taking any policy decisions until the committee took a final decision. The apex court’s January 8th judgment and the committee decision raises plenty of questions and brings back one that has been evaded for a long time: who exercises control over the CBI?
One answer was provided by the Supreme Court in the 1997 Vineet Narain case that sought to shield the CBI from political interference and make it ‘independent’. In the mid- 1990s, the investigative agency was widely believed to have come under political pressure while taking decisions on whether to probe or not pursue some cases. Originally, control of the CBI lay with the Government. After the exhaustive instructions issued by the apex court in 1997, its superintendence was handed to the Central Vigilance Commission (CVC). Later, in 2003, this was codified in the CVC Act; and Delhi Special Police Establishment (DSPE) Act, 1946—which governed the CBI—was amended as well. Clearly, this answer proved to be inadequate in the 21st century.
That arrangement had worked well for two decades. But in one important respect, this was purely due to luck. The implicit assumption of the 1997 judgment was that the bigger danger to the CBI was political interference, and that other issues, if they arose, could be handled by the CVC. Back then, no one could imagine that infighting among top CBI officers would become a problem one day. But that is exactly what happened last year when reports surfaced about allegations and counter-allegations of corruption on the part of Verma and Asthana. These charges were one issue, but the bad blood between the two senior-most officers of the agency was obvious by early October. Late that month, the CVC, acting under Sections 8(1)(a) and 8(1)(b) of the CVC Act, 2003 along with Section 4(1) of the DSPE Act, 1946, divested Verma of his powers as CBI chief. This was followed by two orders by the Union Ministry of Personnel confirming the divestment and appointment of another officer M Nageshwar Rao as acting CBI director. Both were conceived as interim measures.
The court went into these questions of control and supervision under the law, and ruled that under Section 4B(2) of the DSPE Act, the power to transfer the CBI director lay with the committee. That, however, did not solve the basic problem. The Court did not rule on the allegations of corruption among the CBI brass. It also did not take into account the infighting among senior officers of the agency. Finally, as a proper judicial forum should, it did not take into account the politics that swirl around these issues in any way. This became obvious the day after the judgment when the committee met and its proceedings remained inconclusive. Its decision a day later, on January 10th, was criticised by activists and lawyers as soon as it became known that Verma had been ousted. Much of this has to do with the bitter polarisation in the Indian polity (of a kind that has not been seen since the 70s). A number of political and legal activists had sought the Supreme Court’s intervention to launch a probe into the acquisition of Rafale fighter jets by the BJP-led Government. The Court had rejected this demand in a judgment late last year. For the most part, the quick comments after the ouster of Verma came against the background of these dashed hopes. Technically, the committee was bound to arrive at a decision sooner or later, given that its numerical composition was rather unlikely to result in a deadlock. Administratively, of course, it is unwise to leave the CBI director’s position unfilled.
Another issue was pointed out by Solicitor General Tushar Mehta: the director of the CBI is also a member of the Indian Police Service and is thus subject to the rules and regulations of that service. The fact that a person has been appointed CBI director does not mean that he ceases to be a public servant. Mehta said the only exception in this regard is the fixed tenure of the director, but he continues to function under the rules and regulations of his service. The court did not accept this contention and considered the insulation of the CBI chief to be absolute. It said that had there been an exception, the law would have mentioned it.
The situation, to an extent, is one produced by judicial overreach. In 1997, the court could not have foreseen the events of 2018. But yet it laid down an exhaustive set of guidelines thinking that these would serve the country well. Twenty years later, it is clear that the Vineet Narain guidelines could not have foreseen the Verma-Asthana infighting or the alleged corruption within the agency. If anything, the former manifested itself within hours of Verma’s reinstatement: the transfer orders of all the officers who had been posted away from Delhi were cancelled by Verma. An investigative agency is involved in probing cases and that involves assigning officers for the task. If that does not involve policy decisions, it is not clear what not taking any major policy decisions entails.
Ideally, the crafting of laws to control an investigative agency while giving it sufficient insulation against political interference is the job of Parliament. In that role, however, Parliament was found wanting until the court stepped in (in 1997). Even then, the legislature scrupulously adhered to the injunctions of the court in designing the law. It did not think it necessary to include provisions to handle human failures. Like in other similar situations, it is the acts of humans at the helm that defeats the best laid judgments and laws. The CBI is not an exception to this rule.
For now, the situation has been salvaged. This, however, is a smaller challenge than ensuring such events don’t occur again. A mere replacement of personnel or their careful selection in the first place—the original task of the committee under the CVC Act—cannot completely solve the problem. The solution probably lies in a careful rethink of the control-versus- independence problem in the law. That is not an insurmountable technical hurdle. The issue lies elsewhere. On one hand, India has seen fractured electoral verdicts for a long time now; and on the other, the political class would not like to let go of control of powerful agencies. That makes enacting such laws very hard. Until then, India has to depend on an imperfect mix of judicial verdicts and laws. Guarding the guardians, as always, is a difficult task.