By Ujjwal K Chowdhury
The Supreme Court of India has once again proved its political impartiality by agreeing to look at government allegations against the two most senior officers in the Central Bureau of Investigation.
Chief Justice Ranjan Gogoi said petitions filed by the agency’s director Alok Verma and deputy Rakesh Asthana merited an urgent hearing. Both have been ordered by the government to take a leave of absence while it conducts an investigation into corruption allegations.
Verma and Asthana have accused each other of bribery and of interfering in police investigations at the CBI, which is India’s equivalent of the American Federal Bureau of Investigations.
The court’s handing of the affair offers further proof that if there is one institution the government has been unable to influence, it is the independent judiciary. We have already seen this with the court’s verdicts in the Aadhaar case, safeguarding the right to privacy, the Sabarimala temple women’s entry dispute and the Article 377 affair.
An extraordinary crisis requires an extraordinary response and it came when Asthana asked the Supreme Court for protection from arrest after Verma had a first information report [FIR, or documentation on a chargeable offence] prepared against him and arrested Deputy Superintendent of Police Devender Kumar in connection with the corruption allegations against Asthana.
Asthana was granted interim protection until Monday, when the court will hear the charges against him. But the government would not wait. Last Tuesday it told Verma and Asthana to temporarily step down and sent the team investigating Asthana’s case to Andaman. Another officer, Nageshwar Rao, was installed as CBI interim director.
Undaunted, the court will pursue its Central Vigilance Commissioner inquiry into the allegations against Verma and Asthana under the supervision of retired Supreme Court Judge AK Patnaik, who is best known for acquitting six Muslim men accused of the Akshardham attack in 2014. In the process, he took the police and Gujarat state government to task.
A report from the inquiry will be submitted within 10 days, and the court will deliberate on the matter on November 12. The court declined to devote more time to the matter and also rejected a plea by Asthana against his powers being divested by the government.
In a further intervention, it ordered tight restrictions on the decisions that the interim director could take while he was charge of the CBI.
The court has clearly put the government on the back foot through its short inquiry timeframe, the appointment of a strong ex-judge for the hearing and restraints on the government’s choice of interim director.
Late on Thursday the CBI was forced to issue a statement to the effect that Verma remains director and Asthana retains his post as Special Director until the government probe has been completed. This was to pre-empt any Supreme Court ruling reaffirming the constitutionally protected appointment of Verma as director.
The court has said its inquiry will look only at whether there is a prima facie case of corruption against the CBI officials. Interestingly, Verma’s team has already submitted its evidence against Asthana at a separate CBI lower court hearing, and the Supreme Court has a copy.
Verma has constitutional protection because his appointment was confirmed through an administrative process involving the prime minister, leader of the opposition and chief justice. It was for a minimum term of two years, and cannot be cut short by the incumbent government.
The government initially appointed Asthana as acting director, and had to shift him to the post of Special Director to make way for Verma. Hence, while Verma holds a constitutional position, protected until January, Asthana has an executive position with no such protections.
Some legal experts believe that the seven-decade-old Delhi Special Police Establishment Act cannot be used to remove the CBI director before his term ends. The act states that the director shall hold office for a period of not less than two years and cannot be transferred except with the previous consent of the appointing committee.
The CBI has already charged Asthana in a bribery scandal, accusing him of demanding and taking kickbacks from a businessman who was under investigation in the Moin Qureshi corruption case. The Moin Qureshi probe was led by an investigation team headed by Asthana.
According to sources, the CBI gave the deliberating magistrate evidence from telephone intercepts, WhatsApp messages and financial inquiries. The CBI said on September 21 that it was investigating Asthana for six alleged cases of corruption.
Asthana countered with allegations against Verma, saying he had taken bribes from people being investigated by the CBI. No FIR has been filed and no evidence has been submitted in any court of law. One charge in the CBI’s FIR against Asthana and Kumar is that they were falsifying testimony to manufacture a case against Verma.
Given Verma’s constitutional protections, there is a strong chance that the Supreme Court will reinstate him as director, which would be an embarrassing setback for the government. If so, it is likely Verma will order an CBI inquiry into alleged wrongdoing over the acquisition of French-made Rafale fighter jets.
Verma has already met advocate Prashant Bhushan to get full details of corruption charges earlier brought by Bhushan, Arun Shourie and Yashwant Sinha. The possibility of a full-blown probe into the Rafael deals by CBI is now the elephant in the room.
The charges against Asthana may lead to the exposure of several cases that are politically sensitive. Among the investigations he led are those into cases involving AgustaWestland and Bihar fodder, a coal scam and a probe against liquor baron Vijay Mallya.
Asthana was also probing the INX Media case, allegedly involving former Union minister P Chidambaram, as well as the IRCTC tender issuance case that involves former Bihar chief minister Lalu Prasad Yadav.
It is not the first time the CBI has been politicized. In 2013, the Supreme Court described the agency as a “caged parrot” after the then-attorney general interfered in a CBI investigation into the granting of public coalfield licences.
Former CBI director Joginder Singh and joint director B R Lall have previously accused the agency of engaging in nepotism, wrongful prosecutions and corruption. Lall told in his book Who Owns CBI of investigations being manipulated and derailed. Corruption within the organization has been revealed in information obtained under the Right To Information Act.
Assam High Court said in a ruling on November 6, 2013 that CBI was unconstitutional and did not hold any legal status. The Supreme Court of India ordered a stay of proceedings on this verdict when challenged by the central government. Some experts believe the CBI will eventually be ruled unconstitutional by the Supreme Court unless it is given legal backing by the government.
