Day 5 Arguments: 29th November 2018

In the previous hearing on 20th November, CJI Gogoi expressed his dissatisfaction with the fact that CBI Director Alok Verma's response to the Central Vigilance Committee (CVC) report was released to the press prior to the hearing. The CVC's report contains a summary of its on-going investigation into Director Verma, submitted on 12th November.

 

The Court is hearing two petitions -- one by Alok Verma and the other by a non-profit organization Common Cause -- on whether the Centre violated the law when it divested CBI Director Alok Verma of his responsibilities and powers. The matter is before a 3-judge Bench comprising CJI Rangan Gogoi, Justices SK Kaul and KM Joseph.

 

In today's hearing, the Court stated that it would look at the CVC report only if it finds that Director Verma has been legally divested of his responsibilities. In other words, the Court will first evaluate the validity of the petitioners' contention that the Selection Committee should have cleared the Centre's decision to divest Director Verma of his responsibilities.

 

During today's hearing the Bench first heard arguments in favor of Director Verma from the following counsels:

  • Director Verma's lawyer Fali Nariman
  • Common Cause's lawyer Dushyant Dave
  • Mallikargun Kharge's lawyer Kapil Sibal
  • AK Bassi's lawyer Rajeev Dhavan

At the end of the hearing, the Court heard Attorney General K.K. Venugopal, who defended the Centre's actions.

 

Petitioners' and Intervenors' Arguments

Mr. Fali Nariman, counsel for Director Verma, opened arguments, addressing the publication of the leaked response. He asked whether a publication can be halted, if a report has been filed but not taken up by the Court. He relied on the 2012 Sahara India Real Estate case to establish that postponing a publication is only covered under Article 19(2) if it relates to contempt of court. He urged the Bench to give weight to the 2012 judgment and to clarify how it would view the publication of the leaked report.

 

Next, Mr. Nariman focused on the legality of the Centre's decision to divest Dir. Verma of his responsibilities. He argued that the Centre acted in violation of past Supreme Court judgments and statutory law. In particular, he stated that in divesting Director Verma of his powers before 2 years and transferring him without consultation with the Selection Committee, the Centre acted in violation of Vineet Narain, 1997 and the Delhi Special Police Establishment (DPSE) Act. First, he pointed out that under the guidelines issued in Vineet Narain in 1997, a CBI Director will have a minimum tenure of 2 years regardless of the date of superannuation. Next, he argued the Centre's move is not legal because it was taken without first consulting the Selection Committee. In 2014, Section 4A was added to the DPSE Act, which states that CBI Directors must be selected by the Selection Committee. The Selection Committee consists of the Prime Minister, the Chief Justice of India and the Leader of the Opposition. Mr. Nariman argued that the guidelines issued in Vineet Narain establish that the transfer of an incumbent Director in extraordinary circumstances, must have the approval of the Selection Committee.

 

Justice KM Joseph posed a hypothetical question:  "if a Director is caught red handed, can he remain on the post for a second?" Mr. Nariman responded that the government could possibly take action, but it must seek post-facto concurrence of the selection committee even in such a grave situation.

 

Next, Mr. Dushyant Dave appearing for the NGO Common Cause began arguments. CJI Gogoi asked him to suggest to the Court what the proper procedure might be for transferring CBI Director. Mr. Dave replied that past judicial verdicts and statutory law put in place safeguards to ensure both continuity of tenure and insulation from extraneous influence on CBI Directors. He argued that by divesting Director Verma of his powers, the Centre has tried to do indirectly what it cannot do directly.

 

Next, Mr. Dave questioned the validity of the CVC enquiry into Director Verma's conduct. Relying on guidelines issued in Vineet Narain, he said that the powers of the CVC are restricted to supervising the functioning of the CBI and not the functionaries/Officers themselves.

 

The Bench rose for lunch.

 

After lunch, Mr. Dave continued his arguments. He cited Section 4B of the DSPE Act, which states that the "The Director shall, notwithstanding anything to the contrary contained in the rules.....continue to hold office for a period not less than two years from the date on which he assumes office."  Mr. Dave concluded by stating that the manner in which Alok Verma was divested of his powers ran contrary to the DSPE Act. 

 

Next, Mr. Kapil Sibal started his arguments for intervenor Mr. Mallikarjun Kharge. The Court allowed Mr. Kharge's intervention on the grounds that he is the leader of the largest opposition party and hence is a member of the Selection Committee. Mr. Sibal argued that the CVC has exceeded its authority by initiating an enquiry into Alok Verma's actions. He said that the power of the CVC is restricted to the supervision of cases and cannot investigate functionaries. He argued that the CVC's investigation violates the provisions of the DSPE Act. 

 

Relying on Section 4A of DSPE Act, Mr. Sibal argued that the Selection Committee's power to Appointment includes the powers to suspend and remove. He argued that the Centre violated Section 4A by not consulting Mr. Kharge in divesting Alok Verma of his powers.

 

CJI Gogoi enquired whether under no circumstances can the government act against the CBI Director without prior approval of the Selection Committee. Like Mr. Nariman, Mr. Sibal replied that there are no exceptional circumstances where the requirement of approaching the Committee can be dispensed with. He termed consultation as "an absolute requirement". 

 

Next, the Bench heard Mr. Rajeev Dhavan, who is appearing for Mr. AK Bassi. Mr. AK Bassi was investigating the charges against Rakesh Asthana before he was transferred to Port Blair on Centre's order.  Mr. Dhavan submitted that CVC's power of superintendence cannot override the specific scheme under the DSPE Act, which is in place to ensure the autonomy of the CBI Director. CJI Gogoi asked Mr. Dhavan why he is questioning the validity of Mr. Bassi's transer. Mr. Dhavan replied that Mr. Bassi's transfer is a direct consequence of Verma's transfer (which Mr. Dhavan argues was done illegally).

 

Respondent's Arguments

Attorney General K.K. Venugopal began by referring to provisions of the DSPE Act. He submitted that the Central Government is the final appointing authority of the CBI Director. Thus, he argued that it has power over all ancillary issues of appointment, such as for example transfers. He argued that though the Selection Committee selects the Director, the Committee does not have the power to oversee all matters related to appointments. Further, he referred to the provisions of the CVC Act to argue that the CVC has the power of complete supervision over the functioning of the CBI, including investigating individual officials. He submitted that the CVC's powers are not limited to corruption cases being investigated by CBI.

 

Arguing for restricted involvement of the Selection Committee, Mr. Venugopal submitted that the Committee's role is limited to recommending the names of 3 persons and that it is the Central Government which makes the final selection. He added that there is no requirement of seeking the Committee's approval in matters of transfer. Furthermore, Mr. Venugopal rejected Mr. Verma's claim that he has been transferred.

 

CJI Gogoi asked AG Venugopal to clarify what gave the Central Government the power to divesting Mr. Verma of his powers as CBI Director. In particular, CJI Gogoi asked Mr. Venugopal to clarify the Centre's actions with regards to Section 4(A) and (B) of the DSPE Act.

 

Mr. Venugopal responded by stating that the CVC and DoPT jointly exercised the power to divest Mr. Verma of his duties. He maintained that Mr. Verma has not been transferred and that the Central Government has acted within the scope of its powers. CJI Gogoi asked a counter question: If the Government is in charge of all matters other than investigation, then should the order of divestment not have come from the Government. Mr. Venugopal responded by stating that the Government intervened in the interest of the public.

 

The Court clarified that it would first decide if the Centre acted legally in divesting CBI Director of his responsibilities prior to assessing the CVC's report on its investigation into Director Verma. The Court rose for the day and listed the matter for 5th December.

(Court Reporting by Disha Chaudhry)