File photo dated July 30, 2018, shows Central Bureau of Investigation Chief Alok Verma at Supreme Court (Source: PTI)

Is Government Right To Send CBI Director Alok Verma On Leave? Sanjay Hegde, Vineet Narain, MN Singh Debate

The government on Tuesday sent CBI Director Alok Verma on leave months before his tenure ended amid allegations of corruption by the agency’s top two officers against each other. A late-night order from the Appointments Committee of the Cabinet headed by Prime Minister also sent Verma’s deputy Special Director Rakesh Asthana on leave.

But did the government’s move violate the Supreme Court’s ruling?

Yes, said senior lawyer Sanjay Hegde. “The move was in violation of a 1998 Supreme Court ruling (Vineet Narain vs Union of India) that mandates a tenure of two years to the head of federal investigation agency,” Hegde told BloombergQuint in an interaction. “It may be good and a credible move to send Alok Verma on leave. It may be based on the knowledge of the personality concerned. But the law is not concerned with personalities but process.”

But Narain, the original petitioner in the Jain hawala case, disagreed. “The judgment clearly says you have to go back to the court only if there is a transfer of the CBI director,” he said. “In this case, neither his term has been curtailed nor has he been transferred.”

Former Mumbai Police Commissioner MN Singh said the allegations of corruption and misconduct against Verma have been looked into by the Central Vigilance Commission and it’s appropriate that the “chair has been shifted”. “The CBI needs to undergo a complete overhaul.”

Hegde, however, raised concerns over the agency’s new chief M Nageswar Rao transferring a dozen officers. “If you remake the institution by putting in your favourites in crucial spots then there is the same old pack of jokers just reshuffled around.”

Watch the full debate here:

Here’s the edited transcript from the debate:

Is the government fair in sending Alok Verma on leave?

Sanjay Hegde: The criticism is because the Supreme Court in Vineet Narain case had said the CBI director will have two-year tenure at very least. Here is somebody when you have guaranteed two-year tenure and you think you have a problem with him which requires him to go on leave. Did the government at least go to Supreme Court and ask its permission?

When the Central Vigilance Commission comes in and says please remove two of them, then the question is, does the CVC’s mandate of overall supervision of corruption in country include micro managing the CBI, its investigations and its investigators? I don’t think the CVC’s remit is that large. The main thing which Supreme Court will ask the government on Friday is that if the judgement says two years, how did you cut short the tenure? It is only CBI director which has the protected tenure. By all means you could have taken off Asthana. As far as the charges against Verma are concerned, he could have retired in two months now. By January, he would be gone. Even if you thought that an independent investigation was not possible with him being around, would anything prevent you from 2-3 months from now. Were their charges of such grave nature that you had to put him on leave? This are among the few questions which the government will be forced to answer.

In your view, is it fair to remove Alok Verma considering that there were serious allegations against him?

Vineet Narain: This was exactly what I had suggested 2-3 days back when there were no hints of events taking place in these directions. When you transfer the CBI director, you have to go back to collegium. In this case, neither the term has been curtailed nor he has been transferred. Both of them have been sent on leave to ensure fair and free investigation. With both sitting there, it was not possible to investigate allegations and counter allegations.

So, you are of the view that sending him to leave is alright?

Vineet Narain: Yes. This was the only option left. But I consider the failure of director CBI, CVC and the Prime Minister’s Office in dealing with the situation. Take director CBI. He has no experience in CBI. He was only a police officer. So, he has run the officer as a thanedar. It is the responsibility of administrative head to run an organisation in a decent manner which he failed to do and he acted in a politically motivated type.

CVC had the knowledge of all these things for several months. Things were in media and allegations were coming to him. They did not act in a proper manner. Suddenly, they realised that things are going out of hand. Same applies for the PMO also. Knowing that the premier agencies’ credibility is at stake, the PMO should have taken cognizance of these things and should have settle the matter in a proper and decent manner. But whatever has happened today is the only option left. What did you do in a case like Ranjit Sinha or AP Singh? When sitting director for two years term, they indulge in so much hobnobbing with the accused, they invite at home and deal with them, I think it was a bad decision. I was against all this though, all credit is given to the Vineet Narain judgement. But when this judgement was drafted I was opposing it in court and filed an affidavit saying that in the hawala case, before taking the case to its logical conclusion, people like Prashant Bhushan were talking about future safety measures like the autonomy to CBI, CVC. Let us reach the logical conclusion of this case. It is historic case. First time, 150 were charged in hawala case across party line but they diverted the whole attention. What have they achieved in 20 years? By apprehension which is in writing and part of the court history. That I had apprehended, and nothing will happen or change. Successive directors have been accused of corrupt activities and we have made mockery of the premier investigative agency.

Isn’t the Rafale debate from opposition and Alok Verma’s statement put different light on the situation?

MN Singh: Alok Verma is trying to take a cover behind the cases handled by the CBI. He has lost all credibility and moral authority to continue in CBI as its chief. There were serious allegations made against him too and those allegations were made by the second in command at the CBI. The allegations of corruptions and other acts of misconduct has been looked into by CVC, and it is not fair that the man should be there. How can you expect a fair enquiry when the man is still sitting in chair? Therefore, it is appropriate that the chair has been shifted. He has not been transferred and there is a difference between transfer and proceeding for a leave. I don’t know if the government has followed all the procedures but his continuity has become highly unattainable and undesirable. Alok Verma was not competent to head an organisation like CBI. His posting is itself a mistake. He has never worked in CBI in past, never headed CVC in state, not headed ATS in state and he has very little knowledge of any serious investigation. He just happened to be a senior guy and therefore he was posted. I agree that he behaved like a thanedar. His shifting was imperative. The CBI needs to undergo a complete overhaul. Many other senior officers have also been shifted. I hope Asthana is also shifted.

What is your counter on it is a good move that Alok Verma was sent on leave?

Sanjay Hegde: It may be good, credible and based on their knowledge of the person concern, but the law is concerned not about personality but the process. If there is judgement of SC which says that you have to give the man a two-year tenure, if you want to cut it short for any reason, if there is any matter of it on any point and you find that the order stands in way of what you want to do, then the only option is to ask the SC to vary its order. Did you as a government do it? The government is of laws and not of men. Court orders are not at your discretion whether to follow or not follow. If it is a convenient order, I will follow it and if it is inconvenient I will not follow it. That’s not how a constitutional government operates. Verma has three years to complete. In January, he would have been gone. He has filed an FIR against the No. 2 which is no such protection that he could not be moved out. If the investigation is launched by the head of the biggest police agencies can be subverted somebody else from outside that agency, then where does the country perceive any chance of independent investigation at all? Your credibility on rule of law is premised on independent investigation. Occasionally investigator or head of an agency goes mad but there are ways to deal with it but deal with executive law.

MN Singh: I don’t know if the government followed all the procedures. But there must have been some informal consultation before Verma was asked to proceed on leave. Continuance of Verma even for a day as director of CBI has become highly unattainable because the man is himself facing enquiry by CVC. How can he sit on the chair which is being investigated? Administrative propriety is one thing and what is desirable in investigation is important. It was something which was urgently needed because of the turf between the top two officers. It has brought disgrace to CBI. Why the leniency to a man who has lost the moral authority to continue in that chair? The government must have done some informal consultation. PMO called the officers. I wish the government acted in time and prevented it. I am more interested in the health of the CBI rather than two individual officers. The other guy also needs to be shunted.

I want to come on point of Alok Verma handling some sensitive matters and not going into direction which the government wanted him to go. I am not denying it.

Here is the case of major scam by Jet Airways. Series of scams of violating DGCA, civil aviation, FEMA, laundering of funds, gold smuggling, illegal flying of plane in foreign countries. This complaint was filed with CBI in 2015. When Alok Verma took charge, we met him and explained him the whole thing. Nothing has moved, so much so that the civil secretaries of civil aviation were in criminal connivance with jet airways and today they are on board of directors of Jet Airways. All this has happened because CBI failed to act. Who stopped Verma to act in this matter?

It is not a simple case but a case of thousands crores of money laundering which involves civil aviation and DGCA and security of the nation. Why is he not bothered about it?

What about the other officers who have been shunted out?

Sanjay Hegde: It derailed the process of investigation as far as Asthana is concerned. Investigating officer is changed. By the time a new officer picks up the threads and goes with it, there is a time lag of a couple of weeks depending on the seriousness of the matter. If you remake the institution by putting in your own favorites in crucial spots and then presenting it as a makeover then there is the same old pack of jokers just reshuffled around. That is not required at this stage. The integrity of CBI has now become a matter of question. Every investigation which has been done in this period and if it ends up in charge sheet and in courts will be subject of lot of questioning by defense lawyers. The aura surrounded CBI when courts could say that our local state police is not competent enough and let’s give it to CBI has disappeared. Even if you want to put fresh people, you cannot do it on basis of informal consultations when there is court order. If there is court order and a judgement, then you have to follow legal process. Don’t tell me that it has Attorney General, Solicitor General and whole host of Solicitor Generals and even if the situation demands an emergency, you can wake up the judges at midnight. What it is that prevented you? I don’t know how the organisation survives when No. 1 and 2 fights. The entire premises is sealed off and all the papers are under the control of agency. Is this how you will run the organisation or a country? How would you have respect for the policemen and the law?

MN Singh: It is like spare the rod and spoil the child. CBI has completely lost its credibility. It is important to rebuild the credibility of the organisation as far as the future of the case is concerned. CBI is a large organisation and it has many officers. I don’t think it will hamper the investigation of these cases. May be for a few days, there will be stagnation, but the investigation will not suffer. It will be handled by honest and new officer than to be continued with same old tainted officers. People must develop faith in this organisation.

Vineet Narain: I am going for a larger question of Vineet Narain judgement, suggestions and request that the whole thing should be relooked and what is to be done in such situation. The appointment process is not transparent. People with incompetent background has been brought in. Why can’t the biodata of candidates be put on website three months ahead of appointment so that people can raise objections? All this needs relooking. I will ask the Supreme Court to look into it. It will be a long drawn battle, but I hope it will restore the credibility of the CBI.

What about the 2014 amendment?

Sanjay Hegde: You can’t amend the judgement of the court by further legislation unless you have taken the basis of the judgement. The court’s direction was in the interest of independence of CBI. So, they have CBI directors that kind of tenure protection where the judgement themselves enjoy. Mere legislation will not take that away. With the current CJI quite amused to watch some government trying to make that argument. I don’t think that argument will be made. We will have to satisfy the court that the situation was emergent, and they did what they did.

Considering that there was action on Asthana, doesn’t the government be in tight spot where the question being asked that was this pay back where the action being taken against Asthana?

MN Singh: The government is already in spot by bringing Asthana, the manner in which he has brought in, into the CBI. When the storm was building up, they didn’t take action in time. The government could have saved this embarrassment which has come out into open.

I don’t think the case against Asthana will last. It will not jump the first barrier in court of law. The complainant Sana is himself a dubious character. He was himself under investigation by the CBI. He has not paid money directly to Asthana but through mediator. There was no direct conversation between Sana and Asthana. There is no proof in corruption law. There must be demand and payment. There is no mention of demand from Asthana. It looks like a fairy tale story. The requirement of law is that the government permission should have been taken. Now when the case is investigated and suppose it comes to a charge sheet stage, the CBI will have to go to government for prior approval for filing the charge sheet. It will be tough. This is tenuous case and whether it will pass the test of law or not, I have doubts. But let the case be investigated and then we can say.

Sanjay Hegde: I have made the same argument and the Supreme Court said that take it all at the trial. At the stage of FIR, you can’t prejudge. The question is whether there should be investigation at all. You can’t say that you can’t have an investigation. Let’s see whether it goes to charge sheet at all.

Opposition leaders are going to Rafale deal. If you see the pleadings, then he said that there were some cases where the investigation was taking the turn which was not particularly to the liking of the government. If at any stage he was contemplating launching a preliminary enquiry and at that stage you knocked him out of the organisation, you have to pay. The analogy is what happened during Watergate. It was one crime of breaking in. Now to cover up the crime when the President fired the independent public prosecutor, that is where the courts turned against him and said your executive privilege does not go this wide. In independent investigation if it is seen as some scuttle, then the court will come down very hard. This is where the perception battle is being fought. I don’t think the government is doing a good job of convincing people that everything is hunky dory and some people are rogue and we are trying to keep things in order. The question is where the investigation’s going, was the material credible enough for further investigation and was it scuttled.

MN Singh: I don’t know anything about CBI investigation of Rafale matter. They may have asked for investigation but has the court directed the CBI to investigate it? What is the authority of CBI to look into the matter? Has the case officially handed to CBI by government or court?

I wonder if there is a complaint. The highly politicised people are making all kinds of allegations. Nothing concrete has come out in public domain and the matter is being heard by the Supreme Court. The court has called for information and files from government. Unless Supreme Court comes to conclusion and directs that it needs to be investigated then how the CBI jumps into fray. The CBI show bias in this matter. Unless the matter is given to the CBI by Supreme Court, the CBI cannot start investigation. On what basis Alok Verma was investigating the case? The matter is still in Supreme Court. The Supreme Court should come to a conclusion that there is a need of investigation. If there is a need, they will direct the same. If Alok Verma says he was investigating, then who asked him to investigate?

How to rescue the CBI?

Sanjay Hegde- Institutions are as strong and as weak as the person who manages them. We have instances like EC, CAG and had people who have larger-than-life images. The ultimate call will be on Friday if the Supreme Court decides to ask the government that what was it that made you to cut short this man’s tenure in the face of our judgement. If the court is not satisfied with the government’s answer or if they think that there is something in petition, then the dynamics will change rapidly.

Asthana wanted to be the CBI director previous time when Verma got appointed. He was hoping to be the CBI director after Verma. I don’t think within these charges he has anywhere in the CBI. It is best to repatriate him to his parent cadre and whatever tenure is left, let him spend there. As far as Verma is concerned, it is a matter of 2-3 months. Then the new man can be appointed with concurrence of CJI and leader of opposition. In Verma’s case, the opposition didn’t want him, but he turned to be his own man at least in some respect. Let’s see what the future holds.

MN Singh: It is important to rebuild the image and restore the prestige of the CBI and for that first step is all the officers in the CBI which has come under the cloud must be removed. There is a need for a complete overhaul. It has to be done by the government as it is their prerogative, except the CBI director where there is tenure rule the government does the posting. Why should we distrust the government so much? You always put the government in category of criminal. It is not fair as the whole system collapses.

The CBI still functions under the Delhi Police Establishment Act, which was directed by the British before Independence. That governs the functioning of the CBI. There is no independent separate law governing the function of central agencies such as CBI, IB, and R&AW. All other organisations like CRPF, BSF, ITPB, CISF have separate laws. It is surprising that CBI, IB and R&AW do not have law governing its functioning. It is high time that there is a separate law enacted which should include provisions of its accountability and monitoring. The platform should be created. We should oversee the functioning, may be a parliamentary committee or some independent authority. With government and the CBI together, there will always be a clash. The CBI has faced similar allegations in the past when the Congress was in power and now it is facing the same thing. The Supreme Court has used a caged parrot which is unfortunate. To rebuild the image of the CBI and restore its prestige, it is necessary to enact a law, create an accountability platform and let there be independent authority to monitor its functioning.