Chief Justice of India Ranjan Gogoi on Thursday asked the Central Vigilance Commission (CVC), represented by Solicitor General Tushar Mehta, to explain the exigency that had prompted it to take an “overnight” decision to divest Alok Verma of his powers as CBI Director.
“The situation which prompted the CVC to take action against Alok Verma did not start overnight on October 23 [the day Mr. Verma was divested of his powers]... The Attorney General said all this started in July. That means you had tolerated him for two months,” Chief Justice Gogoi observed before asking, “So what was it that required you [CVC] to take a decision ‘overnight’ on October 23?”
At one point, the CJI asked senior advocate Fali Nariman whether the Supreme Court, if the need arose, had the power to appoint an interim CBI Director.
Mr. Nariman, who has been appearing for Mr. Verma, pondered the question for a moment before replying that the court could indeed do so in exercise of its “inherent powers” as the final interpreter of the Constitution.
'Complaint of misconduct'
The CVC action against Mr. Verma was triggered by a complaint of misconduct filed by CBI Special Director R.K. Asthana with the Cabinet Secretary on August 24 against the backdrop of a bitter feud between the two top CBI officers. Mr. Asthana’s complaint, alleging misconduct and abuse of authority against Mr. Verma, ultimately led to the divestment on the intervening night of October 23-24. Mr. Asthana was also exiled on the same day as his superior officer.
“Extraordinary situations do need extraordinary remedies,” Mr. Mehta said, responding to the CJI’s question. “CVC’s superintendence [over the CBI] encompasses “surprise, extraordinary situations”... Two senior-most CBI officers [Mr. Verma and Mr. Asthana] had turned against each other. Instead of probing cases, they were raiding each other, registering FIRs against each other. They may tamper with evidence. This was a surprise situation,” the Solicitor General elaborated.
Mr. Mehta added that unlike the CVC, the CBI Director has no special protection from removal but only a fixed tenure.
But the court persisted, asking 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 of his npowers before the end of his two-year tenure.
No need to consult PM-led panel: govt, CVC
The government and the CVC have vehemently argued in court that there was no need to consult the Prime Minister-led panel.
“The essence of every good government administration is to do what is acceptable,” Justice Gogoi said. “Now, if there are two options available before the government — one acceptable and the other more acceptable — what stopped you from taking the more acceptable option,” the Chief Justice asked.
The court indicated that the government and CVC were yet to provide a reason for not consulting the Prime Minister-led panel.
“Alok Verma had two years’ tenure and was recommended by this committee. So if you wanted to divest him of something, why did you not consult the committee?,” the CJI said.
Mr. Mehta responded by observing that the CVC had no option but to act to contain the turmoil within the CBI brass, as it would have been held accountable for “dereliction of its duty” of superintendence over the CBI if it had failed to do so.
“Section 4 of DSPE Act, which controls the CBI functioning, says CVC superintendence over CBI is restricted to probes in corruption cases. Can Section 8 of CVC Act go beyond Section 4 of DSPE Act?” the Chief Justice, in turn, sought to know.
Separately, responding to Mr. Nariman’s argument that ‘divestment’ of Mr. Verma's powers amounted to his ‘transfer’ and that this should not have been done without the prior approval of the Prime Minister-led panel, Mr. Mehta said: “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.”
Unlike a transfer, divestment had no finality, he said. “Here they [Mr. Verma and Mr. Asthana] have been asked to keep away from the office till CVC/government takes a call on them,” he submitted.
Mr. Mehta summed up his arguments by saying: “We are not like having taken an action and now trying to justify it”.
The court reserved orders on the separate petitions filed by Mr. Verma and NGO Common Cause challenging the divestment of the CBI Director’s powers after a day-long hearing.
