Power vs. Procedure: Alok Verma Case

Ishpreet Kaur Chhabda[1] & Komal Agrawal[2]

Topics Covered in this article

Abstract

The Central Bureau of Investigation (CBI) plays an important role in promoting justice in our society. With the wide powers endowed on this agency comes the responsibility of ensuring their independence and transparency to function in a fair and just manner. The recent controversy surrounding the removal of CBI Director Alok Verma has put a blemish on the credibility of the procedures adopted in the Agency. With the ongoing debate about power and procedures, this article analyses the legislation regarding the appointment and removal of the administrative head of the Bureau and its compliance while divesting the current Director.

Introduction

CBI is a premiere investigating agency born with the motto of “industry, impartiality and integrity”. The administrative head[3] of an institution with such repute and nature of work is to be selected and consequently removed in a manner which is transparent and untouched by any political prejudices.

The controversy and allegations stemming from the removal of the Director and the Special Director raised a big question on its institutional integrity. This paper attempts to analyse the removal of the current CBI Director, Alok Verma in light of the procedure of appointment and removal of the CBI Director as envisaged in the law.

Alok Verma was appointed as CBI Director on January 2017 by a committee consisting of Prime Minister Shri Narendra Modi; Leader of Opposition in Lok Sabha, Mallikarjun Kharge and Justice JS Khehar, the then Chief Justice of India.[4] Rakesh Asthana was appointed as the Special Director, CBI, in October 2017.

Taking into consideration the corruption allegations and ongoing investigations against the CBI Director and Special Director, the Central Vigilance Commission (“CVC”) passed orders to divest both the Directors of their functions, powers, duties and supervisory role in respect of cases already registered and/or required to be registered and/or being inquired/enquired/investigated under the provisions of Prevention of Corruption Act, 1988, until further orders.[5]

The Central Government exercised its powers under Section 4(2) of the Delhi Special Police Establishment Act, 1946 (DSPE Act) and passed an order for divesting them off their offices till the conclusion of CVC’s inquiry into the issues and allegations and till an appropriate decision could be reached with measures to be adopted by the CVC and/or government. This order was challenged by Alok Verma in the Supreme Court.

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In light of the above circumstances, the Appointments Committee of the Cabinet approved the appointment of Mr. M Nageshwar Rao, Joint Director at CBI, as an interim Director of CBI.

Appointment and Removal of CBI Director

The DSPE Act, is the parent Act which established CBI. The administration of CBI is vested with the Director who has powers similar to that of an Inspector-General of Police in respect of the police force in a State.[6]

The Central Government appoints the Director on the recommendation of the Committee. The Committee consists of:

  1. the Prime Minister as Chairperson;
  2. the Leader of Opposition (recognised) as Member; and
  3. the Chief Justice of India or Judge of the Supreme Court as Member.[7]

The aforementioned constitution of the Committee was a result of the Lokpal and Lokayuktas Act, 2013. The erstwhile Committee consisted of the following:

  1. Central Vigilance Commissioner as Chairperson;
  2. Vigilance Commissioners as Members;
  3. Secretary to the Ministry of Home Affairs in the Central Government as Member; and
  4. Secretary to the Ministry or Department of the Central
  5. Government having administrative control of the DSPE as Member.

The Amendment excluded the involvement of the Vigilance Commission in the appointment of the CBI Director.

The vacancy or absence of any member of the Committee does not invalidate the appointment of a Director under sub-section (2) of section 4A. This provision which was inserted vide an amendment in 2014 does not necessitate that the recommendation be provided as a joint decision of all members of the Committee. The purpose of constituting a Committee with a varied background was to ensure transparency and an unbiased approach which is defeated with such an amendment.

Sub-section (1) of section 4B provides for a minimum term of two years during which the Director shall hold office. The non-obstante clause has a three-fold implication. Firstly, it overrides the ‘conditions of service’ under which the Director has been appointed, secondly, it emphasizes on the mandatory nature of the term and ensures a stable office for at least two years.

The provision for transfer requires the prior consent of the Committee under Sec. 4B (2). The Act does not provide any procedure for removal otherwise of the Director.Hence, the Director cannot be removed before 2 years and post that, prior consent of the Committee is required.

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In the landmark case of Vineet Narain & Ors. vs. Union of India & Anr.,[8]the Apex Court agreed with the conclusions and recommendations of the IRC and held in favour of a mandatory minimum tenure of two years for the Director of CBI regardless of the date of his/her superannuation.

The action by the Central Government to remove the CBI Director was hasty and prior to the expiry of the set term of the Director and without the prior consent of the Committee which is inconsistent with the aforesaid provisions.

Superintendence and Role of CVC and Central Government

The CVC is vested with powers under sub-section (1) of section 8 of the Central Vigilance Commission Act, 2003 (“CVC Act”), to superintendent over the functioning of DSPE (CBI) in so far as they relate to the investigation of offences allegedly committed under Prevention of Corruption Act, 1988.

The CVC while acting under this power of superintendence issued the orders for removal of the CBI Director Alok Verma. The Act does not provide any clarity on the extent to which CVC can exercise superintendence and whether such superintendence would include divesting the CBI Director from his office.

Further, sub-section (2) of section 4 of the DSPE Act vests all matters of superintendence (except those with CVC relating to Prevention of Corruption Act, 1988) with the Central Government. Similar to the CVC Act, this Act does not define ‘superintendence’ or the extent to which the Central Government can take action while exercising its superintendence.

The Apex Court cast light upon the term “superintendence” in the Vineet Narain[9]ruling and held that the ambit of the word superintendence in sub-section (1) of section 4 cannot be construed in a wider sense or in contravention to the manner provided by the statutory provisions.

Hence, wherein Section 4B provides for minimum term and requirement of prior consent of the Committee, the power of superintendence which is a general power would not be presumed to include the power to remove the Director from his office without the compliance of Section 4B. Thus, the exercise of power by the CVC and the Central Government is not in consonance with the legislation.

Conclusion

A just mechanism is the foundation of a credible institution. The CBI being a special police force requires an upright treatment in order to ensure the sanctity in fulfilment of their primary role of “investigation of offences”.[10] The parent Act of the Bureau has certain provisions which require clarity in order to alienate the ambiguity surrounding the procedure for removal of the CBI Director.

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Section 4A of the DSPE Act provides that absence of any member of the Committee does not invalidate the appointment of a Director which effectively defeats the purpose of having three members in the committee hailing from different backgrounds.

The legislation provides a protective shield of two years to the CBI director to hold the office. The purpose of this amendment was to ensure the independence of these directors from political influences but has consequently resulted in a blanket which is sheltering the director. The possibility of removal prior to the set minimum term or even thereafter has not been addressed or even acknowledged in the Act. The procedure for a transfer has been mentioned but not that of a pre-mature removal which needs to be legislated upon to fill the gaps thereby, providing for a just mechanism.

The CVC Act and the DSPE Act vest the CVC and the Central Government respectively, with powers of superintendence over the Bureau but the nature of or the extent to which such superintendence can be exercised, has not been provided for or clarified and until such time, aid of interpretation principles and the judicial rulings are required.

Hence, the special provision of minimum term and transfer of the Director is likely to supersede the general power of superintendence of the aforesaid bodies over the Bureau. Thereby, in light of the aforementioned analysis, the removal of Alok Verma does not adequately comply with the provisions of the law.


[1] Student, NMIMS School of Law, Mumbai.

[2] Student, NMIMS School of Law, Mumbai.

[3] The Delhi Special Police Establishment Act, 1946.

[4] Prabhash K Dutta, Was CBI director Alok Verma removed illegally, India Today,(Oct 24, 2018, 12:51 PM) https://www.indiatoday.in/india/story/was-cbi-director-alok-verma-removed-illegally-1374234-2018-10-24

[5] Supra note 4.

[6] Supra note 4.

[7] Supra note 4.

[8] Vineet Narain & Ors. v. Union of India & Anr, A.I.R. 1998 S.C. 889.

[9] Supra note 4.

[10] Supra note 4.