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Analysis

Updated on: Wednesday, May 29, 2019, 05:12 AM IST

Verma bid to complete tenure is legally sound

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The Supreme Court may stay the removal of Alok Verma as director of the CBI because he was recommended by a three-member committee comprising the Chief Justice of India (CJI), the prime minister and the opposition leader after considering the views of the outgoing director. Unless proved guilty of moral turpitude, he continues in office as his forced leave is a violation of the All India Service (Leave) Rules. Under sub-section 2 of section 3, the government cannot force any IAS or IPS officer to go on leave, which Verma has neither sought nor applied for.

The amended Delhi Special Police Establishment Act which has created the CBI, also empowers a three-member panel to select the CBI chief under the Lokpal and Lokayuktas Act, 2013 which guarantees a two-year tenure for the CBI director to ensure his independence. This is exactly Alok Verma’s argument before the Supreme Court which will have a tough time to decide this conundrum because either it will reverse the government stand or uphold it, negating its own judgment to ensure independence for the CBI director.

The new CBI director, M Nageshwar Rao, has been appointed as an interim chief with the approval of the Appointments Committee of Cabinet (ACC) comprising the office of the prime minister and home minister. But the ACC cannot appoint a CBI director which has to be recommended by a three-member selection committee.  Hence, Nageshwar Rao’s appointment as interim CBI director violates the provisions of The Lokpal and Lokayuktas Act, 2013.

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Vijay Mallya, who owes Rs 9000 crores to Indian banks, did his loot-and-scoot with his look-out notice being diluted, as the CBI special director Rakesh Asthana knew very well. And after Asthana allegedly accepted favours from Sterling Biotech to fund his daughter’s wedding, he may have suspected his days in the CBI were numbered. For there can be no doubt that neither CBI director Alok Verma nor his special director Rakesh Asthana are above board. The 14 other CBI men who have been shunted to various locations, allegedly belonged to Alok Verma’s camp.

Asthana, who allegedly had an outstanding record in Gujarat, was known to be the blue-eyed boy of both Narendra Modi and Amit Shah which is why he was brought in to allegedly probe the shenanigans of opposition leaders like P Chidambaram. The multi-crore scams such as the Rafale deal and allocation of coal mines in which IAS officer Bhaskar Khuble was involved was being looked into by his boss, Alok Verma.

Verma refused to release these sensitive files, prompting the new chief to order the sealing of two floors of the CBI building. Asthana’s allegation that the government was going easy in the P Chidambaram case exploded in his face when the former Congress finance minister was named as a prime accused by the Enforcement Directorate with nine accused on Thursday.

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Alok Verma was supposed to sign the charge-sheet against Orissa high court judge I M Qudussi in the medical colleges admission scam which was one of the reasons why the four “rebel” judges held a press conference on January 12 on the lawns of Justice Jasti Chelameswar’s bungalow. Another high court judge who has been sent on leave and who was under investigation by Alok Verma, was S N Shukla of the Allahabad high court, the largest high court in India notorious for its uncle-nephew syndrome with the government in August opposing 11 lawyers recommended out of 33 for judgeship as they were relatives of sitting or retired judges of the same court or the Supreme Court.

In 2016, out of 30 lawyers recommended for judgeship, the then Chief Justice of India (CJI), T S Thakur, had rejected the names of 11 lawyers for being the kith-and-kin of judges and selected only 19 for judgeship. Unlike those who are recommended for judgeship in secrecy by chief justices of high courts who may be vulnerable to pressure from lawyers’ groups, the CBI director’s appointment is transparent.
The onus of investigating cases is placed on the inspectors, and deputy superintendents of police who are permanent staff. The senior IPS officers from the rank of superintendent of police to DIGs, joint directors and special directors supervise cases and suggest angles to their subordinates who gather evidence for the courts.

It is these SPs, DIGs, and joint directors supervise raids on people like meat-exporter Moin Qureshi who has brought down both Verma and Asthana apart from a few others. But despite their high-profile jobs, whether they are special directors or joint directors, the political party in power at the Centre invariably wields power over the director and special directors. The independence of the CBI is a myth and will remain so until the Delhi Special Police Establishment Act, 1946 is amended again to allow the agency to directly report to the courts without any executive interference through the department of personnel and training.

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Successive prime ministers have always interfered in CBI functioning. So much so, that a circular was issued in the 1990s that the CBI could not investigate a bureaucrat of the rank of joint secretary and above without the permission of the government. This, in effect, meant that the top bureaucrat being investigated would be given advance notice of the same to enable him to destroy or manipulate evidence against him.

Two former CBI directors A P Singh (2010-12) had alleged links with Moin Qureshi and Ranjit Sinha openly entertained those accused in serious crimes who sought to meet him. There have been other CBI directors and special directors who have diluted the cases against those protected by the ruling party, like the Bofors scam. But P Chdambaram is definitely not one of those whom the BJP has protected.

Olav Albuquerque holds a PhD in law and is a lawyer-cum-journalist of the Bombay high court.

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Published on: Friday, October 26, 2018, 09:04 AM IST
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