last updated at 15.06 on 06.12.18

Day 7 Arguments: 06.12.2018

The Court is evaluating whether the Centre violated the Delhi Special Police Establishment(DSPE) Act when it divested CBI Director Alok Verma of his responsibilities. The Centre divested Verma of his responsibilities via the Central Vigilance Commission.

 

In the previous hearing on 5th December 2018, the Court heard AG KK Venugopal present arguments on behalf of the Centre. AG KK Venugopal argued that the Centre had the power to divest Director Verma of his responsibilities without consulting the Central Vigilance Commission (CVC). Next, the Court heard ASG Tushar Mehta on behalf of the CVC. ASG Mehta took the Court through the CVC Act, 2003, emphasising the CVC's powers of superintendence. He sought to demonstrate that the CVC had the power to investigate and superintend Director Verma.

 

ASG Tushar Mehta on behalf of CVC

Today, ASG Tushar Mehta opened arguments. He continued to take the Court through the CVC Act. He submitted that the CVC has existed since 1968 as an administrative body. He submitted that the Supreme Court, in its judgment in Vineet Narain, directed the CVC to be granted statutory status.

 

ASG Mehta focused on sections 1(a), (b) and (c) of the CVC Act, which grant the CVC its power of superintendence. He also focused on Section 8(1)(b) of the Act to highlight that the CVC has powers of superintendence over members of the All India Service.

 

The Bench asked ASG Mehta whether a person appointed to the post of CBI Director ceases to be a member of the All India Service. Mehta referred the Bench to the Police Act and the DSPE Act. Under both Acts, persons elligible to the position of Director, remain Service officers.



Next, ASG Metha submitted that the Director is guaranteed a 2 year tenure regardless of superannuation, so as to ensure that eligible officers are not passed by owing to their date of superannuation. He referred the Bench to the NN Vohra Committeee Recommendations with respect to the CBI, CVC and ED, which directed the Central Government to take measures to ensure that the CBI functions as a non-partisan body.



CJI Gogoi stated that while the idea behind the 2 year tenure period is to give the Director some permanence, he emphasised that this is not the only reason for the tenure guarantee. ASG Mehta agreed and stated that the tenure ensures that the government cannot transfer Directors on "whims and fancy".

 

Next, CJI Gogoi re-stated the argument put forth by Nariman, counsel for Director Verma. Nariman's argument is that the act of divesting the Director of his powers amounts to transferring the Director. Hence, Nariman argued that divesting Verma of his powers required the approval of the Selection Committee. CJI Gogoi emphasised that in actions taken to ensure administrative efficiency, the government must not simply adhere to the law, but analyse which approach would be a better adherence to the law.

 

ASG Tushar Mehta responded by attempting to demonstrate the extra-ordinary circumstances which led the Governmen to divest Verma of his responsibilies. CJI Gogoi responded by saying that the tussle that happened within the CBI did not happen overnight, thereby suggesting that the Government had time to plan appropriate actions. ASG Mehta responded by stating that certain events in the tussle required emergency action by the Government. ASG Mehta stated that the chronology of events will demonstrate this to the Court.

 

At this point, ASG Mehta once again returned to demonstrating the superintendence powers of the CVC by taking the Court through the CVC Act. He submitted that a person continues to be a part of the Indian Police Service after they are appointed Director. Referring to Section 4(a)(3) of the DSPE Act, he establishedd that All India Service includes All India Police Service. Hence, since the CVC has superintendence over every All India Service members, the CVC has superintendence over the CVC Director. Further, he emphasised that the CBI Director is subject to the rules governing IPS officers, including: rules of conduct, disciplinary and appeal rules, rules of transfer, etc.

 

Focusing on Section 4(b) of the DSPE Act, ASG Mehta submitted that the 'non-obstante' (notwithstanding) clause serves two functions: (1) Director cannot be hit by superannuation provision; (2) Transfer provisions applicable to All India Service persons. Further, he emphasised that the only special rules are with regards to superannuation and transfers. In questions of discipllinary proceedings, the Central Government retains the power to manage such proceedings without consulting the Selection Committee.

 

He submitted in all areas left unidentified by legislation, the width and amplitude of the power of superintendence of the CVC stems from Article 324 of the Constitution. He submitted that while Section 8(1) and 4(1) may not stipulate several situations, the CVC has the power to authorise extraordinary steps in extraordinary situations in view of Article 324.

 

CJI Gogoi asked the ASG whether the power of superintendence needs to be understood as confined to Section 4(1)? Can Section 8 go beyond Section 4? ASG Mehta responded by stating that Section 4(1) cannot be read in isolation from Section 8. CJI Gogoi then stated, 'so your submission is that Section 4 is confined to acts of corruption under the PCA?' ASG Mehta responded by reading the order divesting Alok Verma of his powers: 'Verma was divested of his powers with respect to proceedings under the PCA Act'.

 

ASG Mehta submitted that extraordinary circumstances led the Centre to divest Verma of his powers. He submitted that in the tussle, two senior officers were investigating each other, who were both vested with the responsibility of investigation serious offences. Hence, he submitted that there existed a likelihood of evidence tampering, which waranted the Central Government to take the action it took. He submitted that had the CVC not taken the action it did, the CVC would have been guilty of dereliction of duty.

 

In response, CJI Gogoi stated: 'your submission is that the power of superintendence over cases under the PCA, as mentioned in Sections 4 and 8 [of the DSPE Act], also extends to taking disciplinary action?' ASG Mehta responded in the negative. He stated that in this instance the CVC took an interim measure and did not transfer the CBI Director. He submitted that both Director Verma and Special Director Asthana continue to hold their posts, referring to AG KK Venugopal's arguments in yesterday's hearing.

 

Justice KM Joseph asked ASG Mehta whether the action taken by the CVC was proportional. Mehta responded by stating that these questions will be addressed when the Court deals with the arguments on the facts. So far, Mehta had repeatedly stated that he would leave aside arguments on facts at this stage.

 

KK Venugopal on behalf of the Central Government

Next, KK Venugopal presented arguments on behalf of the Central Government. He began by referring to Article 367 of the Constitution, on the applicability of the General Clauses Act on interpretation. He submitted that the DSPE Act does not have any provisions with regards to suspension or removal. Therefore, as per the General Clauses Act (Section 16), the appointing authority has the power to remove and suspend. The appointing authority is the Central Government.

 

KK Venugopal concluded by imagining a hypothetical scenario. He wondered whether the CVC's proposal to divest Director Verma of his powers had been placed before the Selection Committee for approval, would the Selection Committee have asked, 'where is the transfer?'

 

Other respondents

Next, PS Narsimha presented arguments on behalf of the CBI. He submitted that the All India Service rules regulating service conditions of police officers (Rule 7) state that the transfer of an officer prior to the completion of his tenure must be in consultation with the Selection Committee. He emphasised that the rule applies only to transfers and that the present case does not constitute a transfer.

 

Mukul Rohatgi appearing for Special Director Rakesh Asthana presented arguments. The Court has added Special Director Asthana as a respondent. CJI Gogoi requested Rohatgi to make submissions as an officer of the Court. Rohatgi argued that the Central Government as the appointing authority has the powers to take disciplinary action. He submitted that the powers relating to minimum tenure and transfer governed by Section 4 of the DSPE Act (such as powers of suspension, departmental inquiry, dismissal) therefore rest with the government

 

Rejoinders

The Court began to hear Fali Nariman present his rejoinder arguments on behalf of CBI Director Alok Verma. On the question of the Act not being a transfer, he submitted that merely stating that Verma continues to be the Director after having divested him of all his power is not tenable. He argued that the post of Director is not a mere title, but also entails certain key functions, without which one is not Director.

 

Nariman continued, stating that the Government cannot send him on leave by an interim order and then make submissions that he continues to remain the Director of the CBI. He urged the Court to read the provisions of the DSPE Act together and recognize that a transfer is not a mere shift from one place to another.

 

Nariman then argued that CBI Director Verma has been replaced. He argued that the Government, by appointing an Acting Director, has in effect transferred Verma.

 

The Bench rose for lunch at 13.00. The Bench resumed hearings at 14.00

 

Fali Nariman resumed his rejoinder arguments, submitting that the government's action against Verma was pursuant to the filing of the First Information Report against Special Director Asthana.

 

Next, Dushyant Dave presented rejoinder arguments on behalf of the petitioner Common Cause. He argued that the powers of superintendence of the CVC are restricted to matter under the PCA and cannot extent to the removal of the CBI Director. He argued that the power of removal rests with the Selection Committee alone.

 

Dave argued that the Government had unjustifiably taken different approaches in removing Director Verma and Special Director Asthana. He argued that the, in the case of Verma, the Government ought to have waited for allegations to be proved before it took action against him.

 

Next, Dave rejected the arguments made by ASG Mehta regarding All India Service rules applying to the CBI Director. He referred to the fact that the Director enjoys security of tenure, irrespective of superannuation. He also referred to the SC's judgment in Dr. TP Senkumar IPS vs. UOI, regarding fixed tenures.

 

Subsequently, Kapil Sibal presented his rejoinder. He is counsel for Mallikarjun Kharge, who as head of the opposition sits on the Selection Committee. Sibal began by stating that the Supreme Court's ruling Vineet Narain sought to secure the efficient functioning of the CBI as an independent and non-partisan body. He argued that granting the Government the power to suspend and divest CBI functionaries of responsibilites woul render the Vineet Narrain judgment toothless.

 

Kapil Sibal requested the Court to not grant the Central Government the power to independently suspend and remove CBI functionaries. He stated that this would severely compromise the independence of the CBI. He concluded by stating that Section 4(2) of the DSPE Act is not a provision for repository powers.

 

The Bench reserved judgment on the matter.

(Court reporting by Disha Chaudhry)