Justice Patnaik’s Alok Verma Claims Raise Tough Questions for SC
Exactly one year ago, the Supreme Court of India was rocked by an unprecedented press conference by its four senior-most judges, raising concerns over the way then-Chief Justice Dipak Misra was assigning sensitive cases and executive interference with the judiciary. One of those judges, Justice Ranjan Gogoi, now occupies the CJI’s hotseat, but recent decisions of the court, on the Rafale deal and the CBI controversy, show that those concerns continue to remain.
Retired Supreme Court Justice AK Patnaik has added a new twist to the messy Alok Verma saga with his comments on the CVC’s enquiry of the CBI director, to The Indian Express.
Justice Patnaik had been appointed by the Supreme Court on 26 October 2018 to supervise the CVC’s enquiry into complaints of corruption and non-cooperation by Alok Verma. When the CVC submitted its report to the apex court two weeks later, Justice Patnaik submitted a report of his own as well. Both reports were in sealed covers, a practice that has come in for increasing criticism because of the lack of transparency it leads to.
However, Justice Patnaik has now informed the newspaper about some of the observations in his own report, including the fact that the CVC had no other evidence against Verma. This is a startling revelation, since it was on the basis of the CVC’s findings against Verma on some of the allegations against him, that the High-Powered Committee had approved his removal from the post of CBI director.
Supreme Court Knew There Was No Evidence
What this means is that the Supreme Court has known since November 2018 that all the CVC had on Alok Verma were the allegations made by Rakesh Asthana.
Justice Patnaik also noted in his report, according to The Indian Express, that Rakesh Asthana’s statement to the CVC on his allegations against Verma, dated 9 November 2018, was not signed in Justice Patnaik’s presence – which raises further doubts about the CVC’s functioning.
The revelations throw into sharp relief the long delay taken by the CJI Gogoi-led bench in hearing the case, including the unnecessary delays to hear arguments on the primary legal issue of whether the Centre and CVC had the authority to divest Verma of his powers the way they did.
Not only did they fail to do this, they also directed the High-Powered Committee to decide whether action needed to be taken against Verma – which makes little sense if they knew the allegations against him were not substantiated, as Justice Patnaik pointed. It is a separate issue that it was well beyond the Supreme Court’s remit to refer the question to the Committee in any case.
Why were the observations of Justice Patnaik ignored? That’s something only CJI Gogoi, and Justices KM Joseph and Sanjay Kishan Kaul can answer; which means, we are unlikely to ever find out.
What we do know is that the decision to keep all this information in a sealed cover meant that neither Verma nor Common Cause (who had challenged the action taken against him) knew what the man specially appointed to monitor the enquiry had to say. If they had, they could have included this in their arguments, and so, the judges would have had to explain why they wanted the Committee to look into the matter despite Justice Patnaik’s findings.
This may not have been strictly related to the limited legal issue the court ended up looking at, but this didn’t stop the apex court from referring the matter to the Committee, so it could well have been followed.
Was Justice Sikri Made Aware of Justice Patnaik’s Report?
Speaking of the Committee, were they made aware of Justice Patnaik’s observations? After all, the Committee’s 2:1 decision was based on the CVC report, and one of the key Principles of Natural Justice – offering a person accused of something the right to defend themselves – was given the go-by because Verma had been able to respond to the CVC during its enquiry.
With the CVC report having such importance to the Committee, one would imagine it was essential that the Committee should have been made aware that the supervisor of the CVC enquiry believed there was no evidence for its findings.
Surely, if Justice Sikri (there in place of CJI Gogoi), a judge of the highest court of the land, had known of Justice Patnaik’s report, he wouldn’t have agreed to the transfer of Verma. At the very least, he would have wanted to give Verma a hearing to explain why the charges were unsubstantiated.
But it may well be that the Committee was not made aware of Justice Patnaik’s report. That this was the case can be reasonably inferred from Mallikarjun Kharge’s dissent note. Even though Kharge dissented with the other Committee members and said the CVC report didn’t seem sufficient, his dissent note makes no mention of Justice Patnaik’s observations, which is strange since this would be the best support for his view.
This, in turn, raises yet another question for the Supreme Court (or at least the three judges who heard the Verma case):
CJI Gogoi knew of the report, surely he understood how important it was for Justice Sikri and the other Committee members to know about it. Why would the judges cherry-pick which materials were submitted to the High-Powered Committee, given the importance of this case and its ability to affect confidence in the country’s institutions?
Of course, we don’t know for certain that Justice Patnaik’s findings weren’t submitted to the Committee. Unfortunately, if they were, this only makes the Committee’s majority decision even more indefensible, and is a particularly thorny issue for Justice Sikri to explain away.
UPDATE: Mallikarjun Kharge has now confirmed to the Indian Express that Justice Patnaik’s report was not submitted to the Committee, and the Express also claims that the report was not shared with Justice Sikri. Which puts the ball squarely back in CJI Gogoi’s court.