A three-judge Bench led by Chief Justice of India Ranjan Gogoi on Tuesday set aside the "overnight" divestment of Alok Verma as CBI Director on the intervening night of October 23-24, saying statute empowers neither the State nor the Central Vigilance Commission to hamper with the tenure of the CBI chief.
The judgment was written by Chief Justice Gogoi, who was however on leave. The puisne judges on the Bench, Justices S.K. Kaul and K.M. Joseph, pronounced the verdict in open court. Justice Kaul read out excerpts of the judgment.
The judgment upheld Mr. Verma's contention that he should not have been divested from the CBI directorship without the prior approval of the high-powered committee of the Prime Minister, Chief Justice of India and the Opposition Leader, which has, in the first place, the statutory authority to recommend the appointment of CBI Director under the DSPE Act.
The statute gave neither the CVC nor the government the power to disengage him from his functions and duties. These authorities cannot assume superintendence over the CBI Director when there is no legislative intent to back their assumption.
'No policy decision till the CVC probe is over'
The judgment ordered the "reinstatement" of Mr. Verma to the top post in the country's premier investigative agency. He shall however take no "major policy decision" till the high-powered panel takes a call on his fate. This committee has to meet within a week. Mr. Verma is retiring by the end of this month.
The court held that the very legislative intent behind amending the DSPE Act and empowering the PM panel to recommend the appointment of a CBI Director was to insulate the functioning of the CBI from the State and political higher-ups, the court said.
The judgment meanwhile extended the interpretation of 'transfer' of the CBI Director to also mean his divestment. The Section 4 of the Act requires the prior approval of the PM panel before transferring the CBI chief before his statutory two-year tenure is over. Henceforth, any change in the tenure — whether transfer or divestment — of the CBI Director would be done with the prior approval of the PM panel.
The Bench had reserved the Mr. Verma’s petition and another filed by NGO Common Cause on December 6, 2018.
On the last day of hearing, Chief Justice Gogoi had quizzed Solicitor General Tushar Mehta, appearing for the Central Vigilance Commission (CVC), about its tearing hurry to divest Mr. Verma "overnight" on October 23.
The enquiry against Mr. Verma was based on a complaint of misconduct filed by CBI Special Director R.K. Asthana with the Cabinet Secretary on August 24 in the background of a bitter feud between the two top CBI officers. Mr. Asthana's complaint had ultimately led to Mr. Verma’s divestment on the intervening night of October 23-24. Mr. Asthana was also exiled on the same day.
Mr. Mehta had countered by terming the sudden action as a result of an extraordinary situation. “Two senior most CBI officers (Verma and Asthana) had turned against each other. Instead of probing cases, they were raiding each other, registering FIRs against each other. They may tamper evidence. This was a surprise situation!" Mr. Mehta had responded to the CJI.
'Why no prior approval from PM panel?'
The court had repeatedly asked why neither the CVC nor the government chose to take prior approval from the high-powered committee led by the Prime Minister before divesting Mr.Verma before the end of his statutory two-year tenure.
The government and the CVC have vehemently argued that there was no need to consult the PM panel.
The court had indicated that the government and CVC had not come out with a reason for not consulting the PM panel before removing Mr. Verma.
The Chief Justice had questioned the ambit of Section 4 of DSPE Act, which controls the CBI’s functioning. It said that CVC’s superintendence over CBI was restricted to only probes in corruption cases.
Can the CVC go beyond Section 4 of DSPE Act? the Chief Justice had asked on the last day of hearing.
Mr. Mehta had argued that Mr. Verma’s divestment did not amount to a ‘transfer’. “The word 'transfer' would mean a person is divested permanently from one place and invested permanently in an equivalent position in another place... On October 23, considering the seriousness of the allegations, we decided to do something (divestment) which was less than a transfer," Mr. Mehta had submitted.