On October 26, 2018 , a three-judge Bench of the Supreme Court, headed by the Chief Justice of India, was confronted with a straightforward legal question: whether the decision taken by the Central Vigilance Commission (CVC) and the Central government to divest Central Bureau of Investigation (CBI) Director Alok Verma of his powers and functions was legally valid. The question was a straightforward one, because it required the court to interpret three legal instruments: the Delhi Special Police Establishment (DSPE) Act (that brought the CBI into existence), the CVC Act, and the Supreme Court’s own prior judgment in Vineet Narain .
The counsel for Mr. Verma argued that the DSPE Act made it clear that the CBI Director had a guaranteed, two-year tenure, and could not be transferred without the consent of a high-powered committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India. This interpretation of the Act was buttressed by the Supreme Court’s exhortation, in Vineet Narain , that the Director must be protected from political influence. The Attorney-General, on the other hand, argued that the committee’s role was purely recommendatory, that the power vested with the Central government, and that in any event Mr. Verma had not been “transferred”.
As the Supreme Court itself acknowledged, what was at stake was a “pure question of law”. Yet this pure question of law took six hearings and more than two-and-a-half months to resolve, and yielded an unclear decision where the court agreed with the principal legal contentions of Mr. Verma, but passed a judgment whose ambit left everyone scratching their heads.
Judicial evasion
The Alok Verma Case — or “CBI vs CBI”, as it has come to be popularly known — reveals some of the pathologies that have plagued the Supreme Court’s conduct in recent high-profile cases. As indicated above, when Mr. Verma approached the court, the legal question was straightforward: were the CVC and the Central government authorised to divest him of his functions as CBI Director? It was a question that, when the court finally got around to it, took it no more than eight pages to answer.
Why then did the case take six hearings and two-and-a-half months? A perusal of the Court’s orders reveals the following: on August 26, the court directed that the CVC finish its pending investigation against Mr Verma, under the supervision of a retired Supreme Court judge. On November 16, the court received the CVC report in a “sealed cover”, and allowed Mr. Verma to respond (also through a sealed cover). On November 20, the court passed a cryptic order stating that “for reasons that need not be recorded, we are not inclined to afford the parties a hearing today”, and adjourned the case to November 29. It was reported that the Chief Justice was “annoyed” that some of the contents of the “sealed cover” had been leaked. On November 29, the case was listed for hearing final arguments, which then took place on December 5 and 6. The court reserved its judgment on December 6, and finally delivered it January 8.
It should be clear from the record that there were two parallel proceedings taking place in the Supreme Court. The first was Mr. Verma’s original challenge to the process of his divestment — that came up before the court in October, and was heard in December. The second — which occupied the court through the month of November, and through the now familiar, depressing cycle of “sealed covers” — was the substance of the allegations against Mr. Verma, that the CVC and the government were claiming justified his divestment. However, if Mr. Verma was correct in his claim — and the Supreme Court finally held that he was — then the substance of the allegations against him was irrelevant to his legal challenge against his removal.
Effectively, therefore, by mixing up the two questions, the Supreme Court dragged on for months a case that could have been decided within days. And this was of crucial significance: Mr. Verma retires at the end of January. It is questionable what, precisely, does it really mean for the Supreme Court to “reinstate” him midway through January.
This is not the first time that an important, time-sensitive case has been dragged on in a manner that materially affects the situation of the parties. In the Aadhaar challenge, for example, the case was finally heard six years after it was filed, effectively allowing the government to present a fait accompli to the court. This is “judicial evasion”: the court avoids deciding a thorny and time-sensitive question, but its very refusal to decide is, effectively, a decision in favour of the government, because it is the government that benefits from the status quo being maintained.
Strange fetters
In the Alok Verma case, the Supreme Court finally returned a clear finding that the CVC and the Central government had acted outside their jurisdiction in divesting Mr. Verma. However, the court then went on to also hold that the correct authority — the high-powered committee — would have to consider the allegations against him, and decide on the case within a week. In the meantime, Mr. Verma was restrained from taking “any major policy decisions”.
As a matter of law, this is strange. Mr. Verma’s challenge, to recall, was that his divestment was procedurally flawed. The Supreme Court’s limited remit was to decide that question. It was not for the court to then direct the committee to consider the case against Mr. Verma. Still less was it for the court, after holding that Mr. Verma’s divestment was invalid in law, to place fetters on his powers as the Director, thus presumptively placing him under a cloud of suspicion. All this suggests an attempt to chalk out a “middle ground”, which would be appropriate for a durbaar engaging in informal dispute resolution. It is not appropriate, however, for a Constitutional Court that is tasked with providing clear answers to the legal questions before it.
In any event, what exactly is a “major policy decision”? What did the court mean when it said that Mr. Verma’s role would be “confined only to the exercise of the ongoing routine functions without any fresh initiative”? None of these is a legal term, and the lack of clarity only raises the spectre of fresh litigation, thus further hamstringing Mr. Verma for the remainder of his tenure.
This, once again, is familiar: in the Supreme Court’s Aadhaar judgment, although private parties were banned from accessing the Aadhaar database, the ambiguity in the court’s holding meant that different parties interpreted the judgment differently — leading to an amendment to the Aadhaar Act that attempts to circumvent the judgment by letting in private parties through the backdoor. This is, once again, a reminder that — much like judicial evasion — ambiguity is not neutral: it primarily benefits the party that has the power to exploit it, and that party is invariably the government.
Setting deadlines
During the Constituent Assembly debates, there was a proposal that all cases involving fundamental rights be decided within a month. The fear was that the more time the court took, the more the government would benefit from the status quo. Recent events have confirmed this fear. In high stakes cases, time-sensitive cases, the court must ensure two things: that the judgment is timely, and that the judgment is clear. The Alok Verma case demonstrates how, when the court fails to do so, it abdicates its role as the sentinel on the qui vive , and allows the government to get away with abuse of law.
Gautam Bhatia is a Delhi-based lawyer
