In sending Central Bureau of Investigation (CBI) director Alok Verma and his bête noire and special director Rakesh Asthana on ‘leave’ without violating the law, the Centre appears to have played it safe in its attempt to lid the feud in nation’s premier probe agency.
The late ‘Tuesday Night Massacre’, whose legality is being questioned by some, also saw 13 other CBI officers — including DSP Ajay Kumar Bassi who was investigating charges against Asthana—being moved out. Bassi has been transferred to Port Blair with immediate effect in the "public interest". CBI additional director M Nageshwar Rao has been appointed interim director of the bureau.
As was expected, the legality of the Modi government’s decision has come under question. “100% illegal in interfering in tenure of #cbidirector. No power 2do so. #CVC may supervise or interfere if perverse investigation. Cannot de facto transfer or divest or sack director. Cannot achieve indirectly wht u cannot do directly,” Congress leader and prominent lawyer Abhishek Manu Singhvi tweeted.
Senior Supreme Court lawyer Prashant Bhushan questioned the legality of the action. “Breaking! As feared&suspected, the govt has removed the Director CBI from his charge, because he was pursuing corrupt Spl Director Rakesh Asthana who was foisted on CBI by PMO despite his being investigate,” he tweeted.
CPM leader Sitaram Yechury accused the government of conducting a political coup to take over the CBI. “To ensure that the CBI is not a “caged parrot”, Supreme Court had granted protection to the Chief from govt’s whims and fancies by giving him a two-year tenure. What is Modi govt trying to hide by its panic move? #BJPCorruption,” he tweeted.
Responding to the charges Union Finance Minister Arun Jaitley said that the decision was taken to “maintain the sanctity of the CBI” and on the Central Vigilance Commission’s (CVC) recommendation. “This is an extraordinary and as per the power invested in the CVC, it has the power to investigate and maintain the fairness of the investigation. He said that since both the officials have been accused of corruption they cannot investigate the allegations,” he told the media on Wednesday, adding that the decision shall help in restoring the CBI’s credibility.
“According to the CBI Act, the CVC has the power of superintendence in cases related to corruption. Now, who will do the investigation, who will do it and how will it be done is done as per CrPC. But whether an investigation is done properly, the CVC can watch over it under its superintendence,” Jaitley said in his defence of the Centre’s decision. According to the Delhi Special Police Establishment (DPSE) Act, 1946, which governs the working of the CBI, there is a clear distinction between the office of the director, the manner of his appointment and removal of other officers.
Only the CBI director enjoys security of tenure and his appointment process is also different from other officers, whose deputation, appointment and transfer is regulated by the executive.
According to the DPSE Act, the CBI director is appointed by a committee comprising Prime Minister as chairperson, leader of the Opposition and Chief Justice of India (CJI) or a Judge of the Supreme as nominated by the CJI.
According to Section 4B—which states the terms and conditions of service of the CBI director—the director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office, and, the director shall not be transferred except with the previous consent of the committee that consists of Prime Minister, leader of the Opposition and the Chief Justice of India.
That Verma has neither been removed nor transferred puts the decision squarely within the legal powers of the executive. The government has acted smart by sending Verma on ‘leave’, not removing or transferring him, thus abiding by the Act and clearing the mess caused by the infighting at the same time. The decision does, however, straddle a grey area, as the SC has earlier ruled that what cannot be done directly, cannot be done indirectly either.
Updated Date: Oct 24, 2018 19:51 PM