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“Be you ever so high, the law is above you”
The Central Bureau of Investigation (CBI) was established under the Delhi Special Police Establishment Act (DSPE), 1946 is the premier investigation agency in the country to assist in the investigation in the cases related with Murder, Terrorism, Corruption and etc. Before 1997 there was no minimum tenure fixed for the Director of CBI, In Vineet Narain v. Union of India judgment, SC stated that the Director of CBI shall have tenure of minimum two years and transfer of CBI director is an extraordinary situation which could be done by a committee comprised of Prime Minister of India, Leader of Opposition and Chief Justice of India; Government of India should view CBI as impartial authority and insure that it works effectively. Section 4B (2) of Act prohibits the transfer of the CBI director without the previous consent of the committee that initially recommends the names for the appointment of the director CBI.
How a CBI Director is appointed–
CBI is headed by a Director who is not below the rank of Director General of Police (IPS), the Director is selected according to the CVC Act, 2003 by a high profile Committee comprised of Prime Minister of India, Leader of Opposition and Chief Justice of India. It’s alleged in the recent petition filed by the Common Cause (A registered society) that in their two RTIs government declined to state the actual procedure to appoint to CBI director. It is often said that in modern society information is power. By sharing that information with the people at large, we are therefore, proposing decentralisation and participatory governance. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. Yet, though the courts general pronouncements on the right to information have been very liberal, its practices have often not been in conformity with the declared right.
Role of CVC over CBI and other agencies–
CVC noted that the atmosphere within the agency became corrupt and its intervention is necessary; CVC also alleged that Alok Verma did not cooperate and created willful obstruction in CVC investigation.
Section 8(1)(a) and (b) of the CVC Act also empowers the Commission to exercise superintendence over the functioning of DSPE also The CVC has invoked Section 8(1)(d) of CVC Act, which relates to inquiry or investigation of an official who has committed an offence under the Prevention of Corruption Act (PCA), 1988, however Alok Verma has as yet not been accused of or named in an offence under the PCA Act, 1988. It has also invoked Section 11 of CVC Act which says that the CVC has the power of a civil court to summon persons, documents and examination of witnesses related to the inquiry. But these sections do not say the CVC has the power to recommend to the government to divest the CBI Director of his powers.
Alok Verma Controversy-
Alok Verma is a former Indian Police Service officer from 1979 batch was appointed as CBI director in January 2017. Cabinet Secretary of India on 24th August, 2018 forwarded a complaint to CVC citing serious allegations of corruption against Alok Verma. Alok Verma was entangled in a bribery controversy along with Rakesh Asthana, Special Director CBI in a corruption scandal. The government of India and CVC under Sections 8(1) (a), 8(1)(d) and 11 of the CVC Act in order dated 23rd October 2018, divested then Director from his powers and appointed Nageshwar Rao a 1986 batch IPS officer as Director..
Supreme Court cancelled the order to send Alok Verma on leave and He was reinstated as CBI director on 9th Januray, 2019, two months later with the instruction that he not take any major decisions till the Selection Committee decides his fate over the corruption charges. On January 10, 2019, the selection committee comprising of Hon’ble Prime Minister Narendra Modi, Leader of Opposition Shree Mallikarjun Khadge and Nominee of Chief Justice of India, Justice A.K.Sikri as per the process lay down in section 4B of the DSPE Act, the re-instated CBI Director, Alok Verma was transferred out of the CBI. Following this, on January 10, 2019 itself, vide order issued by the Government of India, Nageshwar Rao was named as Director, CBI as an interim measure till the appointment of a new Director or further orders. However, this earlier arrangement i.e. Order dated October 23, 2018 making Shri Nageshwar Rao interim CBI Director, had been quashed by this Hon’ble Court as it was made in violation of the procedure for appointment of CBI Director as defined in the DSPE Act. the government invoked its earlier order which had been quashed to once again make an appointment of the CBI Director even though it is not the competent authority and does not have any powers to make the appointment, without following the due process laid down in the DSPE Act i.e. appointment based on recommendations made by the high powered selection committee.
This controversy revealed to us the necessity for the insulation of these agencies from any extraneous influence to make sure the continuance of the sensible work they have established. Permanent measures are necessary to avoid the requirement of each matter being dropped at the court for taking ad-hoc measures to realize the required results and maintain Rule of Law. This can be the occasion for us to deal with the structure, constitution and therefore the permanent measures necessary for having a good and impartial agency. The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations. The role of judiciary is to constantly evaluate and re-work the fine balance between the rights of citizens and governmental actions. The faith and commitment to the rule of law exhibited by all involved in these proceedings is that the surest guarantee of the survival of democracy of that rule of law is that the bedrock.
 Lord Denning, Lord Denning: The Judge and the Laws, (1984), p. 80.
 1998 (1) SCC 226.
 Section 4A (Lokayuktas Act, 2013) of the Delhi Special Police Establishment Act (DSPE), 1946.
 Alok Verma v. Union of India, 8th January, 2019
ABOUT THE AUTHOR
Vipin Sharma is a fourth year law student at National University of Study & Research in Law, Ranchi, having more than 15 publication on his name, winner of various National/International essay competitions aiming to make his career in criminal litigation.