CBI Director Alok Verma’s Ouster: Modi Government’s Action is of Dubious Legality

If one goes beyond the Modi Government’s October 24 midnight decision – to strip CBI Director Alok Verma of his powers, and what is being touted by some as a feud with Special Director Rakesh Asthana – and looks closely at certain legal provisions, it raises the question: is the government’s action beyond the pale of the law?

At the very outset, one must be cautioned not to act out of naiveté, and hail Verma as the victim of government’s persecution and alleged skullduggery. Because, as per a a press note released yesterday and reports in the media, the Central Vigilance Commissioner has said that there was a complaint – a “secret note” filed by Asthana against Verma, alleging that the latter had accepted a bribe of Rs two crore from Sana Sathish Babu, a Hyderabad-based businessman whom Verma was probing.

Arun Jaitley, in a press conference, said that there is an “extraordinary and unprecedented” situation due to which, in order to ensure “complete fairness”, the government has acted on the Central Vigilance Commission’s recommendation to send Verma on leave.

But, how does this assertion, which has been repeated by many BJP spokespersons on many news channels yesterday night stand with the law – the provisions governing the tenure of the CBI director, the powers of the CVC, and a pathbreaking Supreme Court judgement which is binding precedent?

Tenure means “Functional Tenure”

According to the law laid down by the Supreme Court in the Vineet Narain case , provisions of the Lokayukta and Lokpal Acts of 2013 and provisions of the Delhi Special Police Establishment Act (DSPE Act), 1946 (the law which governs the CBI) the CBI director is to be appointed by a committee of three comprising the CJI, the PM, and the leader of the single largest party in the Opposition.

The tenure of the director as per Section 4B is a minimum of two years. The provision that follows is extremely relevant to the events currently taking place in the CBI. Section 4B (2) says that the transfer of a director could only be done by the appointment committee mentioned above. Even for removal, as per Section 4A(1) of the Act, the consent of the appointing committee is mandatory.

Now, in service law matters, “tenure” means functional tenure, and not one where one is forced to go on leave, or transferred without rigorously following the established procedure. This has been held by the Supreme Court in a catena of cases, the latest being the T.P. Senkumar case of 2017 (see paragraph 71).

What the government has done in Verma’s case is to effectively remove him by divesting him of all his powers, and appointing Nageshwar Rao as the director, and this is in teeth of the law because the appointing committee’s consent was not sought, as the law mandatorily requires. That the government has termed this only as an interim measure does not wash because for all practical purposes, Verma’s tenure has been curtailed.

Can the CVC recommend Transfer?

The government has asserted that the CVC exercising its power of superintendence over the CBI has recommended the action against Verma. But, this is also questionable, for one needs to see whether such powers include that of recommending that the CBI director be sent on leave.

Section 4 of the DSPE Act and Section 8(1)(a) of the CVC Act governs the CVC’s power of superintendence relating to investigation of offences under the Prevention of Corruption Act. Such powers include the power to recommend transfers. But, it must be noted that Verma was not being probed for any “offence”. There was only a complaint filed against him (and even that complaint is of dubious provenance because a CBI officer Devender Sharma has been arrested for faking evidence to lodge this complaint). This distinction is crucial, especially in light of the fact that Asthana has an FIR registered against him.

On its part, the CVC has invoked Sections 8(1)(d) and 11 of the CVC Act which gives it the power of acting as a civil court, summoning the production of persons, documents, and conducting an enquiry. But, these provisions are silent on whether such powers include that of recommending that the CBI director be stripped of his powers, and sent on leave.

Should the Supreme Court Entertain Verma’s Petition?

In his petition, which is listed for hearing on Friday, Verma has invoked the provisions of Section __ to contend that his ouster is illegal. He has also contended that because some of his investigations of high government functionaries had put the government of the day in an uncomfortable position, it has taken this vindictive action against him.

Some lawyers commenting on social media have said that Verma’s case is a regular service matter regarding his tenure being cut short, and that he should have approached the Central Administrative Tribunal first before knocking on the doors of the apex court. This, according to them, is the law laid down by a seven-judge bench of the top court in the L. Chandrakumar case, in which it was held that a person must approach the tribunal first.

But, Senior Advocate Sanjay Hegde and activist lawyer Prashant Bhushan, while speaking to Newsclick, have differed with this view. It will be myopic to see whether this is only a usual service matter, they said, for the very independence of the CBI –which has been granted legal sanctity by the Supreme Court itself – is in peril. This is borne out by the further developments in the case – of arising suspicion that Verma might have been ousted because he was about to probe the much controversial Rafale deal, and because all the investigating teams he was heading have been summarily disbanded, and officers he trusted have been shunted off to insignificant postings.

This, the lawyers say, makes it imperative for the apex court to intervene, and stem the rot before it spreads further.

Saurav is an independent journalist based out of Delhi, and specialises in reporting on legal, human rights and gender issues. He earlier used to teach media law and jurisprudence in Bombay and Pune. He tweets @SauravDatta29.