Only high-powered panel can hence sack CBI chief Alok Kumar Verma

The Supreme Court on Tuesday put Alok Kumar Verma back in control as head of the Central Bureau of Investigation (CBI) but tied his hands from taking any major policy decision till a High Powered Committee headed by Prime Minister decides on his continuation within a week. The order came on two petitions – one by Verma and another by NGO Common Cause represented by advocate Prashant Bhushan.

For Verma, who is due to retire on January 31, the order has come as a big moral victory but a setback to the Centre. But the judgment is significant as henceforth no Government will dare to touch the CBI Director, whose two-year fixed tenure got an added insulation cover from the Court. The Court held that even if allegations are such that requires divesting the Director of powers, the matter will go to the High Powered Committee comprising the Prime Minister, Leader of Opposition, and Chief Justice of India.

The bench of Chief Justice of India (CJI) Ranjan Gogoi, Justices SK Kaul and KM Joseph unanimously struck down the order of October 23, 2018 passed separately by the Department of Personnel and Training (DoPT) and the Central Vigilance Commission (CVC) divesting Verma of all his powers. Even the order making M Nageshwar Rao as caretaker Director has been struck down. It said that the law governing Director's appointment under Section 4A of the Delhi Special Police Establishment Act (DSPE) does not provide for any "interim measures" such as removal or suspension unlike CVC Act which specifically provides for suspension of CVC or VCs.

The Court clarified that it had not decided on merits of the allegations against Verma. But since his continuation is a question pending with the Committee, Verma will "desist from taking any major policy decisions" and even in the exercise of ongoing routine functions, he shall not take any fresh initiative having any major policy or institutional implication.

The Government had argued that since Government appoints the Director, the power to divest also rests with it. Attorney General KK Venugopal had argued that such divestment was not "transfer" as only in that case, the Committee must be consulted.

Turning down this argument, the bench said, "If the requirement of "previous consent of the Committee" is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be self-defeating and would clearly negate the legislative intent. In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended." By stating so, the Court agreed with the argument made by senior advocate Fali Nariman appearing for Verma.

The bench noted that this view is important as Director as the head of CBI has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference. Any interference may be called for only in "compelling" situations for which the Court referred the case against Verma to the Committee to test the adequacy and reasons for his removal or divestment.

In a first, another judge reads out judgment

For the first time ever, the Supreme Court witnessed the sight of a judgment written by a judge being pronounced in his absence by another judge. This will be another reason for the Tuesday's judgment restoring full powers to CBI Director Alok Verma to become historic. The decision by a three-judge bench of Chief Justice of India (CJI) Ranjan Gogoi, Justices SK Kaul and KM Joseph was given by only two judges in attendance – Justices Kaul and Joseph. Though the decision was written by CJI Gogoi, the judgment was read by Justice Kaul. It later became known that early Tuesday morning a circular was issued by SC Registry informing about CJI being on leave. However, by CJI's consent, the circular announced that all matters listed before his court including the pronouncement of judgment will be taken up by Justice Kaul. This was how Justice Kaul read the judgment authored by CJI.