Today on 8th January 2019, the Supreme Court reinstated Director Alok Verma as the CBI Director:
CJI Ranjan Gogoi authored the judgment on behalf of himself and Justice Sanjay Kishan Kaul and Justice KM Joseph. As CJI Gogoi was on leave, Justice Kaul delivered the judgment in Court No. 12.
The Bench was ruling on whether the Central government violated Sections 4A and 4B of Delhi Special Police Establishment Act, when it divested CBI Director Alok Verma of his powers. Specifically, the Bench was deciding whether the Centre's actions violated either of the following provisions:
It held that the actions taken against Director Verma amounted to a transfer. Therefore, it quashed the actions as they had not gained prior approval by the High Power Committee.
Prior to going into the question of the legality of the orders of the CVC and the DoPT, the Court gave a brief description of the history of the CBI which was established under the Delhi Special Police Establishment Act, 1946 (DSPE Act). The organisation was originally set up to investigate certain offences, but over the years, the role of the CBI expanded considerably, making it the premier investigation authority in the country.
The Court then dealt with the question of whether the CVC had the power to divest the Director of the CBI of his/her powers. It held that the CVC has no such power. It observed that while the CVC has powers of superintendence over the CBI, there exists no statute which grants the CVC the powers of interim action relating to suspensions or removal. In particular, the Court referred to the provisions of Sections 8 and 11 of the CVC Act as well as Sections 4, 4A, and 4B of the DSPE Act. The Court also referred to the Supreme Court judgment in Vineet Narrain, the recommendations made by the NN Vohra Committee and the Independent Review Committee.
Next, the Court emphasised that the legislative intent behind the relevant provisions of the DSPE Act were to ensure that the functioning of CBI was insulated from external influences. First, the Court showed that the directions issued in Vineet Narain were aimed at ensuring the independence of the CBI. Next, it observed that consequent amendments to the DSPE Act, Section 4A, 4B made by Parliament were in line with Vineet Narain and pursued the same aim. Hence, the Court held that the provisions of the DSPE Act – in particular Sections 4A and 4B – are designed to maintain the independence and integrity of the CBI.
Next, the Court established that the actions taken against Director Verma amounted to a “transfer” and ought to have been approved by the Selection Committee. Under Section 4B(2) of the DSPE Act, the transfer of a CBI Director requires the prior approval of the Selection Committee. The Court was evaluating whether the order of the CVC divesting Director Verma of his powers amounted to a “transfer” under Section 4B(2). The Court held that in the present case, the word transfer was to be understood to mean any action that impedes the Director from discharging his functions effectively.
Expanding on its interpretation of “transfer” in this matter, the Court noted the absence of provisions in the DSPE Act which conferred upon State authorities, such as the CVC, the power to interfere with the functioning of the CBI Director. It held that the lack of such provisions amounts to a lack of legislative intent to confer upon the CVC, or any external State authority, the power to interfere with the functioning of the CBI Director. It referred to the provisions under the Uttarakhand Police Act, 2007 and the CVC Act, 2003 where specific provisions were made for interim measures that could be taken against the Directors of these respective agencies. Hence, it held that to interpret Section 4B(2) in a manner that would necessitate approval of the Selection Committee only in instances of transfer, as understood in ordinary parlance, would defeat the purpose of the legislation and permit authorities to interfere with the functioning of the office of the Director.
The Court went on to hold that, only if public interest necessitates it, can the Central government interfere in the functioning of the CBI Director. It held that the Selection Committee will determine whether, in this instance, Director Verma should be removed. Recall, the Selection Committee confirms the appointment the CBI Director and comprises the Prime Minster, Chief Justice of India and Leader of the Opposition, as established in Section 4A(1) of the DSPE Act.
"The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended." (para 36)
The Bench directed the High Power Committee (also referred to as the "Selection Committee") to evaluate Director Verma’s case within a week. Alok Verma has been further directed to cease and desist from taking any “major policy decisions” until the High Power Committee has made a ruling.
The Bench did not evaluate the CVC’s status report of its investigation into corruption allegations against Director Verma, submitted to the Court in a sealed cover on 16th November 2018.