What Does the SC Verdict on Alok Verma Really Mean for the Govt?

The Supreme Court on Tuesday, 8 January, reinstated Alok Verma as the CBI director, setting aside the order passed by the central government to divest Verma of his powers. The verdict, authored by CJI Ranjan Gogoi, was pronounced by Justice Sanjay Kaul in the CJI's absence.

The apex court also set aside the appointment of M Nageswara Rao as interim chief of the CBI. The court said that the Centre should have consulted the Selection Committee before removing Verma.

However, a big point to be noted from the verdict is that Verma cannot take any major policy decisions right now.

The special committee under the Delhi Special Police Establishment Act (CJI + PM + leader of largest Opposition party) has been ordered to act within a week to consider Verma’s case. Till the final decision is taken by the statutory committee, the court has restricted Verma’s role.

While the Opposition is rejoicing in Verma’s victory and has quickly resorted to taking jibes and name-calling, does the verdict have any real consequences for the government?

Consequences of Judgment for Government

Limited Time for Verma to Act

• The decision is a shot in the arm for Verma, and it could be viewed as a moral victory for him. However, Verma’s tenure as the director of the CBI is set to end on 31 January. This means Verma has a very limited time to take any actions which the government could have any problems with.

Restrictions on Verma’s Role

• His powers are also curtailed by the court’s direction that for a week his role will be “confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications.”
• It is not entirely clear what this means, as the court doesn’t specify what constitutes routine functions, and there is no judicial precedent on what would be considered “major” policy or institutional implications.
• One of the major questions being raised is whether or not Verma can initiate preliminary enquiries into new matters, register FIRs, and launch investigations. It is arguable that such things should not be considered to have policy or institutional implications, since they are part of the agency’s routine functioning, and can even be mandatory in certain circumstances. For example, if a complaint is made to the CBI disclosing a cognisable offence, it is required to register an FIR according to the Supreme Court’s Lalitha Kumari judgment.
• A similar restriction had been placed on Nageshwar Rao by the Supreme Court on 26 October, but in the time since, he initiated several investigations without incident, including into corruption claims against former Uttar Pradesh Chief MInister Akhilesh Yadav.
• On the other hand, transferring officers could be considered to have institutional implications, and so may fall foul of the Supreme Court’s restriction. This could prevent him from reversing the transfers of the officers who were previously investigating Rakesh Asthana, including AK Bassi and ML Sinha.
• However, given the lack of clarity in the Supreme Court’s judgment, any decisions taken by him which displease the government could very well be challenged on the grounds of violating the restriction.

Implications for Future Actions Against CBI Director

• The only adverse implications for the Central Government (this one and future administrations) relate to how this would check any attempts at interfering with subsequent CBI Directors.
• The SC clarified that there are special protections in place for the CBI director’s post, originating with the Vineet Narain & Ors vs Union of India judgment of the Supreme Court, the motive of which was to insulate the CBI director from any actions that might be taken by the government to interfere with the CBI’s functioning.
• This was reflected in Section 4B(2) of the DSPE Act, which governs the functioning of the CBI. This provision prevents the “transfer” of the CBI Director without the previous consent of the special committee which appoints him/her.
• The judges held that the term “transfer” cannot be read narrowly as this would defeat the legislative intent behind the protection in Section 4B(2). Divesting the CBI Director, even on an interim basis, would be considered a transfer.
• This is crucial because it means that even if a government tries to disguise action taken against the CBI Director as something other than a transfer, the court will not be fooled. Any action which affects the ability of the CBI Director to perform his functions would be viewed as a transfer, and would only be valid if it had the previous consent of the special committee. Since this has to include the CJI and the Leader of the Opposition (or leader of the largest Opposition party), it will be very difficult for a government to get away with any mala fide actions.