The Central Bureau of Investigation, India’s premier investigation agency, which the Supreme Court famously termed as the “caged parrot” in 2013, is currently facing an unprecedented crisis. Effectively, the parrot has been sent to the butcher with the cage, with its Director Alok Verma and Special Director Rakesh Asthana sent on forced leave by the Centre in what has been described as a midnight coup.

As per law, the CBI director enjoys a protected tenure of two years, something that is vital for institutional independence.

Over the last five days, the CBI has witnessed unprecedented scenes, with the agency raiding its own offices in New Delhi. Asthana was named in an first information report last week, involving a corruption case. He was accused of taking bribes to the tune of Rs 3 crore in a case involving the meat exporter Moin Quereshi. Asthana, for his part, wrote to the Central Vigilance Commissioner on August 24, alleging that Verma had taken bribes in the same case.

In a late-night administrative assault, the Centre sent both the officers on leave and, as an interim measure, appointed Nageshwara Rao as the director.

Union Finance Minister Arun Jaitley said on Wednesday that the late-night decision was taken following a recommendation from the Chief Vigilance Commission, which has a supervisory role over the CBI.

In making this argument, the Centre is clearly stretching the law that governs the CBI and the appointment of a director. It is, in fact, using a loophole in the text of the law to implement a decision that has no precedent.

On Wednesday, Verma moved the Supreme Court against Centre’s orders. First and foremost, the Supreme Court will have to take a call on whether the law was followed in its spirit in the decisions made at 2 am on Wednesday. In this, it will have to interpret an important clause in the Delhi Special Police Establishment Act, 1946, which insulates the director of the CBI from arbitrary action of the political establishment.

Stretching the law

Jaitley claimed before the media on Wednesday that the decision to send the two officers on leave was taken following recommendations from the Chief Vigilance Commission.

It is important to note that unlike the Commission, the CBI does not have a separate law backing it. It is established under the Delhi Special Police Establishment Act, 1946.

Section 4 (1) and Section 4 (2) of the Act provide the basis for the Chief Vigilance Commission’s supervisory powers over the CBI. The provisions read thus:

  4. Superintendence and administration of Special Police Establishment.—

 (1) The superintendence of the Delhi Special Police Establishment in so far as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission. 

(2) Save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government.  

Given the text of the law, the assumption here is that the supervision is confined to matters relating to the investigation of corruption cases, not on administrative decisions in the CBI. This provision is reiterated in Section 8 (a) of the Central Vigilance Commission Act, 2003. It is important to note that there is no corruption case against Alok Verma for the CVC to step in. The case is only against Rakesh Asthana.

The preceding section in the Delhi Special Police Establishment Act, 1946 that protects the process of appointment and the tenure of the director makes this even more clear.

According to the law, the appointment of the director is to be made by the committee consisting of the prime minister, the leader of the opposition or the leader of the largest opposition party, and the chief justice of India or a judge appointed by the chief justice. This committee replaced an older bureaucratic committee following the enactment of the Lokpal and Lokayuktas Act, 2013. This law effected amendments in both the CVC Act as well as the Delhi Special Police Establishment Act, 1946.

The tenure of the director as per Section 4B is a minimum of two years. The provision that follows is extremely relevant to the events currently taking place in the CBI. Section 4B (2) says that the transfer of a director could only be done by the appointment committee mentioned above.

The central question that arises out of these provisions is this: When transfer of the director is to be made by the committee as per law, can a de facto transfer, in the form of sending the director on leave and appointing another person as an interim measure, be done by a Cabinet committee of appointments without the consent of the statutory committee under the Delhi Special Police Establishment Act, 1946?

The Centre has tried to get around this problem by terming the arrangement as an “interim measure”. This is clearly a sleight of hand as the law does not envisage any such measure. Neither does the law give the CVC any power to recommend such a measure. The Centre has probably done this to avoid holding a meeting of the appointments committee as it involves the opposition leader.

The Supreme Court will now be called upon to test whether the appointment and tenure clauses that give the CBI director independence could be circumvented in the way they have been. This is important as the role of the chief justice in the appointment committee has also been undermined.