The quiet, internecine war going on between the top officials of the Central Bureau of Investigation (CBI) has burst out into the open in a dramatic fashion this week.
The government’s order directing that Alok Verma, Director of the CBI and RK Asthana, Special Director, CBI, both go on forced leave has not satisfied anyone.
Inevitably, the matter has landed in the courts – Verma filed a writ petition in the Supreme Court challenging the government’s move to divest him of his duties, and has been duly followed by RK Asthana.
Not a Case of ‘Rotten Eggs’ or ‘Black Sheep’
In the first hearing on Friday, the Supreme Court has given the Central Vigilance Commission (CVC) ten days to complete the enquiry, supervised by former Supreme Court judge, Justice (Retd) A K Patnaik.
The obvious questions arise – if Alok Verma was justified in proceeding against RK Asthana why has he been divested of his powers? If he wasn’t, why has RK Asthana been acted against?
If the allegations are indeed true, should we really believe any “black sheep” or “bad eggs” narrative anymore and not conclude that the organisation is rotten from top to bottom?
Especially since even the temporary in-charge of the CBI does not necessarily have the cleanest of track-records going around. The Supreme Court has also directed that the temporary-in-charge cannot take any “policy decisions” but may only take up day to day issues of the CBI.
Formally and legally, Verma is still Director of the CBI even if he is not permitted by the CVC and the government from carrying out his functions. He has not been “removed” from office under any law but he is also not permitted to carry out the functions of his office under law. He and Asthana are in a weird twilight zone (or Trishanku state if you prefer) when it comes to their posts. Should the inquiry report find nothing against Verma, the government would have no basis to insist that he continue on leave. It remains to be seen if the Supreme Court passes the same kind of order in the context of Asthana also.
Nevertheless, the Supreme Court’s order is entire fair and balanced, keeping in mind the circumstances and the potential damage the situation could have wrought.
Legal Grey Zones
Could the government have divested him of his duties? Legally, the government can claim that they have acted only on the advice of the CVC, the body set up to supervise the functioning of the CBI. After all, even the committee comprising the prime minister, leader of opposition and Chief Justice of India are just a recommending authority and the central government is the appointing authority under law. Can the CVC recommend thus?
Section 8 of the CVC Act gives them broad powers of superintendence – save for managing the outcome of an investigation this can mean anything. Does this necessarily mean the power to divest the CBI director of his or her powers? This is where things get complicated.
As has been pointed out here, there is sufficient doubt on the matter and it cannot be answered conclusively one way or the other – there is a good argument to be made on either side.
Do the Central Civil Services Rules (Classification, Control & Appeal) Rules 1965 apply in all respects to the office of the Director of CBI? Even when there is a subsequent Parliamentary law in place, namely the CVC Act which might potentially conflict with it? There is much for the courts to clarify though it remains to be seen if the Supreme Court will choose to do so in Verma’s case.
Too Big to Fail?
That said, the CBI is not the only institution where there is a legal grey zone – consider the events of the last year in the Supreme Court itself. The controversy over the MCI Bribery case which had the potential to implicate the Chief Justice of India in a corruption case was one of a dispute between the top two judges of the Supreme Court as to what was the right thing to do in the matter.
It is a different matter that the absolute wrong thing was done in the end but it highlights how much of our institutions depend on good faith and principles to function rather than hard and fast rules and procedures. The Chief Justice of a High Court may divest a High Court judge without formally calling for her removal through impeachment. Likewise, the CJI with a CJ of a High Court, but what of the CJI herself? Who would be the authority to divest the CJI of powers should the CJI be found to be acting in a manner prejudicial to the court?
In as much as it is tempting to demand that hard and fast rules be laid down for every such situation, it would amount to a denial of the underlying problem – the breakdown in the institution.
As with the Supreme Court, so with the CBI – government interference and the failure to uphold the highest norms in appointment and functioning have created this problem in the first place.
For live updates on the case, click here.
(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)