by Prof Ujjwal K Chowdhury
Extra-ordinary crisis needs an extra-ordinary response. And, it is an extra-ordinary situation in CBI indeed today. But, unlike as a section of the media wants us to believe, it is not a CBI versus CBI case, neither allegations oferstwhile number one CBI officer versus those of the number two.
It is a case of an investigation by CBI with the support of the erstwhile Director against a Special Director brought in from outside the system against whom some serious bribery allegations have been raised, the investigation of which was not stopped even by the Supreme Court, though an arrest of the Special Director was restrained for a few days.
Constitutional Position
In a dramatic turn of events in the midnight of October 23, the agency’s director Alok Verma, and his deputy Special Director Rakesh Asthana and several other officers were sent on leave by the government. The government in its defence said that the midnight order was necessary to maintain the “institutional integrity and credibility of India’s investigation agency,” calling the infighting in CBI as “extraordinary.” The new Acting Director Nageshwar Rao has, within hours of taking over, transferred 14 CBI officers, including those investigating into Asthana’s case, to Andaman. He has been so far an Assistant Director, far junior in the CBI pecking order, below additional Directors. The government claimed that the steps were taken on the recommendations of the CVC. Nageshwar Rao himself faces bribery charge taint with regards to no action taken in VGN Developers’ corruption case in Chennai, but was brought into CBI on recommendation of Venkaiah Naidu.
Outgoing Director Alok Verma who was “sent on leave” by the government, approached the Supreme Court, challenging the order. The matter will now be heard Friday.
It is important to note that the the SC had earlier ordered the selection of the CBI Director through a collegium of PM, Leader of Opposition & Chief Justice of India, and for a minimum term of two years, which cannot be cut short by the incumbent government. This Selection committee was constituted under The Lokpal and Lokayuktas Act, 2013. Before this central vigilance commissioner, under CVC act, had this power. That is how Alok Verma was selected DCBI. The govt had earlier appointed Rakesh Asthana as acting Director, and was forced to have him continue in CBI as the Special Director instead.
Naturally, this has been challenged in the Supreme Court by Alok Verma and the case will come up for hearing on October 26.
FIR against Asthana & Team
The CBI had earlier booked its Special Director Rakesh Asthana in a bribery scandal, naming him as an accused in an FIR, for demanding and taking bribe from a businessman who was under investigation in the Moin Qureshi corruption case by a special investigation team (SIT) headed by Asthana.
According to sources, CBI has put telephone intercepts, WhatsApp messages, money trail and a statement before the magistrate under Section 164.
Exposing fault-lines within, the CBI on September 21, had said that it had informed the Central Vigilance Commission (CVC) that it was investigating Asthana in six cases of corruption. The CBI has also said Asthana was maligning Director Alok Verma’s image and trying to “intimidate” officials by sending a “frivolous” complaint to the CVC against Verma.
Alok Verma had made his unhappiness clear even in July 2018. In a note marked “secret” and sent to the government then, a CBI note made the point “names of Officers who were being considered for induction in CBI were under examination by CBI as suspects/accused in criminal cases under investigation with this Bureau.” The objection was to Rakesh Asthana attending a CBI committee meeting.
Allegations by Asthana against Verma
Asthana also brought in allegations against his former boss Verma with regards to bribes taken from people being investigated by CBI, for which no FIR has been filed and no evidences submitted in any court of law. A charge in the CBI FIR against Asthana and the arrested team Asthana officer, Devender Kumar, has been that they were falsifying testimony to manufacture a case against Verma.
Role of the Supreme Court Ahead
All eyes are on the SC now. A bench comprising of Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph considered the submission of Verma that his plea against the Centre’s decision to send him on leave required urgent hearing, and the case will come up for hearing on Friday, October 26. The constitutional validity of the removal of the CBI Director shall be central piece of judicial enquiry. It remains to be seen if the Court honours its own past decision of making the CBI Director’s post sacrosanct for a 2 years tenure, with no political interference, or goes with the government that it was an extra ordinary situation and hence the unusual measure was justified.
Possible Scenarios
Possibility is bright that the Supreme Court may reinstate the CBI Director due to the constitutional protection the position enjoys. That will be a setback for the government indeed.
Second, if Alok Verma gets back his powers as CBI Director, chances of a CBI enquiry into the Rafale deal is highly possible since Verma had already met advocate Prashant Bhusan once to get full details of the Rafale corruption charges brought by Bhusan, Arun Shourie and Yashwant Sinha earlier. Whether he can have his way and team back even if he gets his position, is yet to be seen.
Third, the Asthana case coming up for hearing in the SC on October 29 will be another flash-point, and may lead to several sensitive cases being exposed with regards to their political implications. Asthana has spearheaded several important investigations such as those into the AgustaWestland scam, the Bihar fodder scam, the coal scam and the 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 involving former Bihar chief minister Lalu Prasad Yadav. It is observed by many legal luminaries and political observers that Asthana was brought in by the government, on NSA Ajit Doval’s advice, to derail Vyapam investigation and fix political opponents in the cases noted above.
In fact, based on the SC stand on Friday, a Pandora’s Box may open up with many warms coming out which can have large-scale political implications.
Long-term Impact
According to the Supreme Court earlier during UPA rule, the CBI has been criticized for being a “caged parrot speaking in its master’s voice”, due to its excessive political interference irrespective of which party happened to be in power at the time. Because of the CBI’s political overtones, it has been exposed by former officials such as Joginder Singh and B. R. Lall (director and joint director, respectively) as engaging in nepotism, wrongful prosecution and corruption. In Lall’s book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organisation has been revealed in information obtained under the RTI Act, and RTI activist Krishnanand Tripathi has alleged harassment from the CBI to save itself from exposure via RTI.
Assam High Court had given a verdict on 6 November 2013, that CBI is unconstitutional and does not hold a legal status. However, the Supreme Court of India stayed this verdict when challenged by the central government and next hearing on this is fixed on 6 December 2013. Some legal experts believe that the ultimate solution for Indian government is to formulate a law for CBI as sooner or later the Supreme Court may hold the constitution of CBI unconstitutional.
The current impasse will open this conversation on the autonomy of the CBI from its political masters once again, and the constitutionality of the agency once and for all.
(The author is currently the Dean of Media, Pearl Academy, Delhi & Mumbai, and former Dean of Symbiosis and Amity Universities, and is a regular commentator on current affairs.)
