I. Facts

Alok Kumar Verma, was removed from the post of CBI director and transferred to Fire services on the recommendation of a High Power Committee (HPC). This HPC comprised of the PM- Narendra Modi, Justice AK Sikri (who was representative of the Chief Justice of India, Justice Ranjan Gogoi) and Congress leader Mallikarjun Kharge. It was not a unanimous decision because Mallikarjun Kharge noted a long dissent. The majority relied on the CVC reports which contained serious charges against CBI director. The support by Justice Sikri in the majority in HPC indicates there was really something serious with CBI director that he was not fit for the post. The HPC relied on a report of CVC. There were certain allegations against Alok K Verma. The CVC was inquiring charges against Alok K Verma under the supervision of Justice A K Patnaik. Both the report, CVC and Patnaik report was submitted before the full bench of the Supreme Court who perused the reports. Media reports suggest that Patnaik, J. has insisted that he did not find evidence against Alok K Verma and the finding of CVC is not his finding. This aspect needs some clarity.

A couple of months back (On October 23, 2018) Alok Kumar Verma, the then CBI director was divested of his powers and was sent on forced leave. Another CBI officer (special director) Rakesh Asthana was also sent for the forced leave. Both made accusations against each other of serious corruption and were fighting like "cats." The action of “forced leave”to both was taken by the Government of India on the recommendation of Central Vigilance Commission (CVC) in the mid night.

Alok K Varma was aggrieved. He approached the Supreme Court the next day, ie Oct 24, 2018. On Jan 8, 2018 a full bench of the Supreme Court unanimously quashed orders of CVC and the Government of India. He was reinstated to work as a CBI director but his powers as full fledged CBI director was not restored. He was asked not to take any policy decision which points to the fact that the Court smelled something wrong. The Court also directed the HPC to decide on his powers to function as full fledged CBI director within a week. This direction also denotes that the argument of the central government regarding some an extraordinary situation had some merit. In other words the power of judicial review of administrative decision was exercised classically and merit review was left to the HPC which is an established principle of administrative as well as constitutional law. (See, PJ Thomas judgement, 2011 to find a distinction between judicial review and merit review). In judicial review of classical sense the judiciary does not go in the legality of the decision because it cannot question the choice or wisdom of the decision making body. It can only examine whether the prescribed procedure was followed or not in word and spirit. In modern sense of review (merit review) judiciary can question both procedure as well as decision. This is a limited exercise done in extraordinary cases.

II. Ratio of the case

The full bench of the Supreme Court in Alok Verma case relied on following points:

1. Principle (P1) – The Director of CBI should be protected from all extraneous interference and pressure. His independence and impartiality are paramount.

2. Provisions (P2) – The laws were amended to ensure his independence in all matters, be it appointment or removal or transfer. Only a high-powered committee comprising of Prime Minister, Chief Justice of India and Leader of Opposition in Lok Sabha is empowered to take such a decision.

3. Precedents (P3) – In 1996, a Constitution bench of the Supreme Court, in Vineet Narayan v. Union of India[2] (a full bench) held that independence of CBI has to be ensured. CBI ought to be insulated from any governmental interference. Therefore, the Court, in Vineet Narayan case issued mandatory directions and the same were incorporated in the statute by way of amendments[3] in 2014. In other words, P1 was propounded in P3 and P2 recognised it.

4. What is the degree of protection or insulation? Whether P1, P2 and P3 intended absolute protection from Government or the Government had some inherent powers to be used in extraordinary situation? The Supreme Court traced this answer through the intention of the Parliament in enacting the amendments.[4] The Court observed that the amendments took away all powers of dealing with appointment and removal from the Government and vested it in the high-powered committee. While some enactments grant the power of removal in exceptional cases to the Government, the CVC Act does not recognise any such power. This indicates the Parliamentary intention was to give all powers only to the high-powered committee and no scope of extraordinary power under unforeseen situation was left for Government. Therefore, inherent power doctrine cannot be invoked in this case.

III. Interpretation

A. Parliamentary intention

This case rests on literal and purposive interpretation. The negative way of tracing the intention of the Parliament is used in this case. The intention of the legislature can be traced by positive means. It can also be inferred by negative means. Positive means denote the positive or affirmative presence of some material (like Parliamentary debate, Reports of Parliamentary committees etc) which clearly establishes the desire of the legislature. Negative means denote the absence of provisions which is deliberate. If the provision of removal or extraordinary power or inherent power is provided in certain enactment and similar power is not provided in other enactment, an inference that can be drawn is that the absence is deliberate. The full bench has drawn an analogy that the Parliament never intended to grant any inherent power in the CVC or government as an emergency measure in case of squeezing the power of CBI because of its unique nature while the same is provided under other enactment. This is one of the established tools of interpretation though the negative way may not always be safe. Therefore it is always better to resort to positive means of reading the intention of the Parliament. Why did the Court in this case not resort to the parliamentary debates? Was it because there was no debate on this point or was it because it was not presented by parties? In both cases it is worrying. It is better to use the debates at first to explore the intention then to resort to guess work of negative means, though in this case the negative means sounds workable.

B. Rule of law

Another reason to support this finding of the Supreme Court is the principle of rule of law that any grey area in law is a paradise for citizen or petitioner. S/he can take the benefit of that lacuna of legal provision. On the other hand the government authority has to show the express source of power. The source of power cannot be implied. Any grey area is a limitation on the government and a lawyer of a petitioner can is within his jurisdiction to take liberty of that grey area. (See, Jeremy Waldron- The Rule of International Law, Harvard Journal of Law & Public Policy, 2006 where he initially differentiates between the meaning of Rule of law for government and citizen) In Alok Verma case the power to remove CBI director was not expressly provided in the CVC Act, 2003. The government cannot read the silence of law in its own favoure. Therefore, the action of the government to send him on “forced leave” was taken in the manifest disregard of the law and the precedents. The central government action to remove Alok K Varma, the then CBI Director without following the prescribed procedure of HPC was against the core values of rule of law, though the government may have best of the intention to ensure the integrity of the institution and may have acted bona fide.

In pursuance of the Supreme Court judgement (Jan 08, 2019) the HPC met and decided by majority to remove Alok K Verma from CBI Director post and transferred him to Fire department. In other words the HPC restored the decision of CVC and the government of India. The decision of CVC and the government of India was not wrong but procedure to reach that decision was wrong.

IV. Natural justice

Alok Verma did not join fire department and opted to retire. He and a group of intellectuals as well as media has criticised the decision of HPC on the ground of natural justice and reliance on CVC report. In his letter Alok Verma alleged that before removal from the post and transfer to another department, he was not heard. Alok Verma as a CBI director himself transferred a number of other CBI officers. In less than 48 hours in the office he transferred around 10 officers. He never gave any of them any hearing. None of the transfer was made because of any allegation of corruption or accusation of misconduct. CBI Director was not required to give a fair hearing because transfer is a routine matter. Indeed there is no rule of administrative law to follow natural justice in case of transfer from one post to other post, if the position is transferable. Even suspension does not need the rule of natural justice to be followed. Alok K Verma was not even suspended. Justice Sikri has restated similar principle of administrative law. [He answered a question of Justice Katju.] The difference between transfer, suspension and removal is a “distinction with difference.” Alok K Verma was transferred, neither suspended nor removed. If the person is removed from the service, the rule of natural justice has to be followed. Alok K Verma was not removed from the service but from the post. The advocates of Alok K Verma seem to have been confused between the word service and post. They also seem to be merging the natural justice jurisprudence of removal cases from non removal cases. It would certainly be a great day for administration if such rule could be followed in transfer and suspension also. The advocates of Alok K Verma want a new jurisprudence be followed. Can a new jurisprudence be developed by HPC? Moreover his transfer was not a routine transfer. It was based on certain allegations. For official proceedings such allegations should be mere prima facie in nature.

Sensitive posts, Transfer and natural justice-Judicial precedents

HC judges enjoy greater independence and immunity vis a vis CVC or CBI director because of constitutional status, power to decide matters finally and interpret law exclusively. Indeed their independence in a part of basic structure of the Constitution of India. When a transfer is made by the judicial collegium, there is no rule of natural justice to be followed. In case of allegation against a judge, there is absolutely no scope of natural justice. Union of India v. Sankal Chand Sheth, A.I.R. 1977 S.C. 2328 can throw light on the issue of transfer and natural justice, especially when high functionary is involved. The issue before the Constitution Bench was whether a high court judge can be transferred without his consent or not in the light of article 222 (1) of the Constitution of India. Whether non observance leads to interference in judicial independence? The majority on this point (Chandrachud, Krishna Iyer and Fazal Ali, JJ.) held that the consent of judge is not essential to transfer him. Minority judges (P. N. Bhagwati, Untwalia, JJ.) held it was essential. The argument again cropped up in SP Gupta case (First Judges case, 1981) A.1.R. 1982 S.C. 149. It is well known that SP Gupta case was overruled on who has the final authority to appoint and transfer judges. However, it is less known that SP Gupta case was not overruled on various other issues. For example, on the issue of locus standi, or interpretation of article 32 it is still the largest bench decision of seven judges where all judges have delivered their separate and concurring opinion. Similarly should the rule of natural justice be followed in transfer of judges? This was again litigated in SP Gupta which still holds the field on transfer issue. In SP Gupta the majority again endorsed the majority opinion of Sankal Chand Sheth that requiring consent was a deliberate omission and not `causus omissus.' (See, “Transfer of High Court Judges and Independence of the Judiciary” by G. Ajith Icumar, Cochin University Law Review 1983). The second (1993) and third judges (1998) case are silent on the issue of transfer and consent. In contrast , CBI Director post is neither constitutional nor judicial post. If a post of high court judge does not need the rule of natural justice to be followed, how come a CBI director claim that due process is violated if natural justice is not given while transferring him from one position to other, that too when his working is alleged to be prima facie suspicious.

V. Institutional integrity

In PJ Thomas (CPIL v. UoI, 2011) is another strong justification for non continuance of Alok K Verma as CBI Director. The full bench in this case has propounded the theory of institutional integrity. Justice Kapadia propounded a concentrate difference between personal integrity of an officer and the institutional integrity of an officer. In this case High Power Committee recommended the name of PJ Thomas as Central Vigilance Commissioner (CVC) in 2010. That time P.J. Thomas was accused in criminal case pending in the Court of Special Judge, Thiruvananthapuram with respect to the offences under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and under section 120B of the Indian Penal Code also known as "Palmolein case". P.J. Thomas allegedly had also played a big part in the cover-up of the 2G spectrum allocation also which was sub-judice. Under the proviso to Section 4(1) of the CVC Act, 2003 the “Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People.” The HPC (consisting of PM, Home Minister and Leader of opposition) was required to recommend the name of CVC. The majority recommended the name of PJ Thomas but leader of opposition opposed his appointment because of the criminal cases of serious nature against him. His eligibility was not in question because “unless proved guilty beyond reasonable doubts he was innocent.” There was no law which prohibited his eligibility based on FIR or investigation. Should such eligible person be not only eligible but also unblemished in nature? There was no legal provision for it. It seemed like a moral requirement. However, the Supreme Court referred N. Kannadasan v. Ajoy Khose [(2009) 7 SCC. Here a person was appointed Additional Judge of Madras high court for two years. There were a number of complaints against him. The complaints were examined by the judicial collegium and he was not recommended as a permanent judge. However, the State government appointed him as the President of State consumer forum. His appointment was challenged. It was argued that he has all eligibility for this post. The Division Bench, however, interpreted that such eligible persons should be “without any blemish whatsoever and that they should not be appointed merely because they are eligible to be considered for the post.” The post is “available for the eligible persons who are retired Judges which would mean that those Judges who had retired from service without any blemish whatsoever and not merely a person who "has been a judge".” Relying on this dictum and precedent Justice Kapadia in PJ Thomas observed :

while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criteria. The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate. Thus, the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation under Section 4 [of the CVC Act, 2003] for appointment of Central Vigilance Commissioner. In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate. [Emphasis added]

This is what is known as institutional integrity principle for the post which is of high public importance. The same principle is applicable in Alok K Verma case. It may be argued that PJ Thomas is not applicable in Alok K Verma case. There is no FIR against Alok K Verma unlike against PJ Thomas. PJ Thomas is more on ethical standard and moral standing of an institution than whether FIR is instituted or not. It is more on the core values of law than on positive law itself.

At the same time the institution of FIR is not a prerequisite. In N. Kannadasan case there were mere complaints against a former judge. He was eligible for the post of President of consumer forum. However, it was doubtful whether in his regime the consumer forum might command the respect and confidence of people and the staffs because of his alleged previous conduct. In other words the director of CBI should not only be eligible, s/he must be a person without anything blemish. The presence of Alok K Verma in the CBI was likely to influence the independence and respect of CBI. Therefore, the HPC has rightly taken the decision to transfer him from CBI to fire department without any opportunity of hearing.

VI. Concluding remarks

The principle is simple and non-compromising that CVC and CBI has to be independent and impartial. Precedents through the Supreme Court has gone to the extent of exercising the power under article 142 to insulate it from government interference. The provisions have been made for the same. The developments establish that independence and impartiality of CBI cannot only be attacked by the government but it can be a casualty of money power from private players. Both officers (then CBI no-1, Alok K Verma and no 2, Rakesh Asthana) alleged exchange of bribes in crores of rupees in the matters of CBI(See, Delhi high court decision on Asthana and reports of CVC in media). Such offices need a few people who "Live like hermit but work like a horse." The system, intellectuals and media needs to timely recognise honest and efficient officers. After recognition they should suitably reward them. This has to be collaborative and transparent exercise.

Can the CBI and CVC be given status at par with Comptroller and Auditor General (CAG) or the Election Commission to ensure sustaining independence and impartiality? This sounds an attractive proposition but the answer cannot be an easy “yes.” CAG cannot themself enforce law. It gives its findings which is presented before the Parliament. An election Commission (EC) enforces laws during the election time only that too in context of election. Such enforcement has to be ultimately done by police and civil servants. They don’t have their own enforcement officers. If the officers do not follow orders, the EC can only cancel the election and take other steps later on. The CBI can enforce the criminal law themselves. They have their own enforcement officers. They can lodge FIR and arrest a person themselves unlike CAG or EC. Therefore, CVC and CBI may be granted constitutional status at par with CAG and EC with a few checks. But it sounds a remote possibility. The Lokpal is still a dream. However, the judgement will further empower and protect CBI from government interference.

[1] Decided on Jan 8, 2019 in Writ Petition (Civil) No.1309 of 2018.

[2] (1998) 1 SCC 226.

[3] Delhi Special Police Establishment Act, 1946 as amended by act 1 of 2014 w.e.f. 16-1-2014 and by act 28 of 2014 w.e.f. 29-11-2014.

[4] Ibid.

anurag deep

Sunday, 13 January 2019

CBI v CBI case --ALOK KUMAR VERMA, TRANSFER , NATURAL JUSTICE AND INSTITUTIONAL INTEGRITY