Supreme Court adjourns CBI hearing till Wednesday; 'Centre doesn't have powers to remove Alok Verma,' argues Kapil Sibal

The hearing in the CBI Director Alok Verma's case, challenging the divestment of all his powers in the agency, resumed with Kapil Sibal arguing in the case for Congress leader Mallikarjun Kharge. The bench, comprising Chief Justice Ranjan Gogoi, adjourned the hearing to 5 December (coming Wednesday).  After the CJI-led bench re-assembled at 2 pm, Sibal mentioned in court that, "The order by the Central Vigilance Commission (CVC) is outside the ambit of the power of superintendence of the CVC."

Sibal argued that the order to seal Verma's office was passed without powers under the CVC Act and the power of superintendence cannot override Sections 4A and 4B of the DSPE Act. "If the power to appoint is with the (selection) committee, the power to remove is also with the committee," Sibal said adding that the central government did not have the power to remove the CBI director. "If this has happened to the CBI director, this may happen to the CVC also. It can happen to the Election Commission also," Sibal remarked raising questions on the autonomy of independent organisations.

File image of the Supreme Court of India. AP

Sibal noted that the CVC and Department of Personnel and Training (DoPT) cannot override statutory provisions of the DSPE Act. "Even if you want to appoint an acting director, it must be made through the statutory committee. ...There cannot be any exception to the requirement of the consent of the statutory committee," Sibal told the apex court. Here, the CJI quipped: "Are you saying that the CBI director can't be touched by the government i.e. they can't be transferred, sent on leave or suspended by the Centre and that it can be done only by the committee. No exception?" "No exception," Sibal replied. "That is my argument too," Senior advocate Fali Nariman said. Earlier, challenging the government's decision, Nariman — who was representing Verma — had told court that Verma was appointed on 1 February, 2017 and "the position of law is that there will be a fixed tenure of two years and this gentleman cannot be even transferred".

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After Sibal concluded, senior advocate Rajeev Dhawan commenced his arguments for transferred CBI officer AK Bassi. Referring to the Supreme Court judgment in the Vineet Narain case which dealt with the superintendence of police, Dhawan said that Section 4B of the DSPE Act is specific and any power related to service cannot obliterate section 4B. "No rule can be put in place to override the 2-year term of a CBI director," he noted. "If there is a lacunae in the Act, only Your Lordships can fill the same. They (government) cannot act claiming that they will plug the lacunae," Dhawan argued in the top court.

However, at this point, the CJI persisted with the question of locus. "You are saying you would not have been transferred if Alok Verma was not sent on leave?"questioning reasons why Bassi filed an intervention application instead of a separate petition. Senior advocate Indira Jaisingh also sought an answer to this question saying that "there is a genuine apprehension of victimisation".

Meanwhile, the Union government's counsel AG KK Venugopal began his argument by mentioning that "the power of selection and the final choice for an appointment of the director is made by the Union government itself and therefore it is the appointing authority." "The selection committee and appointing authority are different. Centre appoints from the names recommended by the selection committee," Venugopal noted in court. "So the committee's power is only up to the selection of a group of candidates,... It is the govt which then appoints one among those candidates," Venugopal said adding that the Government of India — being the appointing authority — can intervene.

"Alok Verma continues to hold the status of the CBI director and enjoys all privileges and benefits of the post till date. So can he claim he has been transferred, Venugopal asked in court. "No facility such as residence, personal staff etc. of Alok Verma has been taken away. Everything is intact," he argued in court to defend the claims of Verma being virtually "transferred" in the garb of being divested of all his powers.

The CJI then asked Venugopal: "Tell us whether the central government exercised power under 4(1) or 4(2) of the DSPE Act?" To which he replied, "According to me, it can flow from both 4(1) and 4(2) as long as it comes within the scope of the term "superintendence."

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