In the court of last resort

By Avi Singh

The Supreme Court, on Friday, stepped into the institutional crisis engineered by the “forcible transfer” of the Director of the Central Bureau of Investigation (CBI) earlier in the week. Given the patent illegality of the “forcible leave” of CBI Director Alok Verma, and the need to maintain the Bureau’s legal independence guaranteed by law, the Supreme Court has chosen to attempt to sort out this mess. That it needs sorting out is hardly news.

Legally, the straightforward thing to do would have been for the Supreme Court to act according to the black and white law, and reinstate Mr. Verma, the CBI Director, and leave it there. Section 4B of the Delhi Special Police Establishment Act doesn’t allow the government to transfer the CBI Director during the two-year fixed tenure without the previous consent of the high powered committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition (or a member of the largest Opposition party in the Lok Sabha). This was introduced in 2013 by the Act constituting the Lokpal. Till then, the Central Vigilance Commission (CVC) was a part of the committee mentioned in Section 4B. It isn’t any longer, and thus has no role in asking the government to divest the CBI Director of his powers.

The Supreme Court has tread more cautiously — but given the administrative breakdown, prudently. It has not immediately reinstated the CBI Director and instead has clipped the wings of the “interim” Director, restraining him from making any policy or major decisions, except those that are routine and essential for the CBI to function. The interim order also said that his decisions thus far will be reviewed by the Supreme Court, and must be submitted to it. All transfers, including of one officer to Port Blair, will be reviewed by the Supreme Court.

The CBI, in essence, is now under the Supreme Court’s administration. The investigations being undertaken by the Director, Special Director, and all the transferred officers will likely stand frozen. Important decisions by investigating officers or decisions to be taken in critical cases will not be taken. It is unclear what the ‘routine’ decisions essential to the CBI functioning are, but the “interim” Director should be loath to act with the alacrity and brutality he deployed in the first hours when he took office. His authority stands severely diminished, and were he to take any major action, one can expect a challenge to it in court.

While taking pains to point out that it is not commenting on the functioning of the government, the Supreme Court has also taken over the powers of the CVC in this case. It is the CVC’s note to the government that was the ostensible provocation for the government to wield its axe at midnight. The CVC’s reasoning in that note to the government, which is challenged in the Supreme Court, were obviously not accepted by the court, and retired Supreme Court judge Justice A.K. Patnaik has been appointed, pending his formal consent, to supervise the investigation into the complaints against Mr. Verma. That the CVC requires supervision by the Supreme Court reveals the shocking state of disrepair in the system.

Although the court did not mention the causes of its anxiety, the CVC’s note makes apparent the Supreme Court’s disquiet. It labours to explain why the complaint forwarded to it by the Cabinet Secretary must remain anonymous, but must be answered, though its allegations have not been independently verified, or prima facie established. It repeatedly points out that there is no wrongdoing found in the investigation of Rakesh Asthana, the CBI Special Director, by the CBI, but reminds the CBI that it must conduct the investigation fairly, and questions whether there should be an investigation at all without sanction from the competent authority. Other notes from the CVC are also seemingly in order to remind the CBI of Mr. Asthana’s rights. Another refers to allegations found in a secret note submitted by Mr. Asthana which in itself is derived from a secret, apparently undivulged, source. Any defence lawyer worth her salt will tell you that a ‘counter blast’ against the other side is not an effective strategy, especially when made after you have been accused first. The nature of the CVC’s demands reveals a bias. The CBI has dithered in providing records to the CVC, no doubt, but there is no matter of such great concern or exigency mentioned in the note that required immediate interim measures or a midnight cabinet meeting to wield the axe.

The CVC’s past history is also revealing. It usually acts as a postbox for forwarding complaints to the requisite government departments, without even bothering to ask for a reply from the department concerned. In this case, it hadn’t even received the CBI’s report on Mr. Asthana, which it had requested, when it voted in favour of the selection committee recommending him as CBI Special Director. Its explanation that Mr. Verma thumbed his nose at its supervisory role, leading to his removal, doesn’t hold water. And if that was the extent of the problem, far less egregious measures, consistent with its powers, were possible — including actually summoning the CBI Director instead of the records, and registering a case against him, which has still not been done. The sanction to investigate, required under Section 17A of the Prevention of Corruption Act, as amended in 2018 by the government, was designed to protect officials from perceived investigative harassment, but it is hardly the CVC’s job to tell the CBI that its investigation is without the sanction of the law.

This case continues the trend of the Supreme Court stepping into the executive’s domain. It has, never, however, done so to this extent. Two principal agencies in the fight against corruption, the CBI and the CVC, will function under its scrutiny.

The Supreme Court, thus, has chosen to act according to its ideas of fairness, or equity, rather than the strict confines of the law. It has waded into the administrative crises trying to fashion a solution, but as an interim measure it has indicated that it will have to consider each decision of the “interim” CBI Director, and thus each decision of the officer transferred in every investigation. Justice Patnaik will have to supervise an investigation, within two weeks, into the vague and secret allegations against Mr. Verma. Both are woefully under-equipped for a task that requires fact-finding of such magnitude. However, as an interim measure, it is hard to think what else would have sufficed. When the executive and independent institutions act with such brazenness against the constitutional ethos, can the Supreme Court bear the entire burden of course correction? Are the sinews of the Constitution strong enough to withstand such vicious jabs?