Centre defends divesting Verma of his charge, says it is appointing authority

New Delhi : The Centre on Thursday defended its decision to divest CBI Director Alok Verma of his charge, saying the action was necessary to restore the confidence of people in the investigating agency that was getting dented over trading of graft charges between the top two -- Verma and Special Director Rakesh Asthana.

The Central government also told the bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph that the Centre being the appointing authority of CBI Director was also empowered to intervene in such situation and there was no need to go back to the selection committee.

The selection committee for the appointment of CBI Director comprises the Prime Minister, Leader of Opposition or leader of the single-largest party in the Lok Sabha and the Chief Justice of India.

Defending the government interventions, Attorney General K.K. Venugopal said it acted in "larger public interest" so that the "CBI does not lose its credibility" and the government was concerned because of adverse publicity" as the top two were at "loggerheads".

The argument of Alok Verma and others that the government could not have acted on its own and should have gone back to the selection panel for divesting him of his charge, the Attorney General sought to draw a distinction between the selection panel and the appointing authority, suggesting that the role of selection committee ends with the recommendation of the Director.

Chief Justice Gogoi asked the Attorney General how could government have acted on the Central Vigilance Commission (CVC)'s recommendation which were based on its power to monitor the premier investigating agency CBI in corruption cases.

As the Attorney General referred to the complaint against Verma by Special Director Asthana to the Cabinet Secretary, Justice Joseph asked: "Had the government and the Cabinet Secretary applied their minds on the allegations against Verma before taking a call?

"The Central government is not concerned about A or B," AG Venugopal replied apparently to show its neutrality in the matter.

As arguments remained inclusive and would resume on December 5, there were indications that the hearing could last long as Chief Justice Gogoi said: "If it becomes necessary for us to go through the CVC report, then we might have to defer the hearing (on December 5) to allow all parties to respond on the report."

The Attorney General told the court that if it decides to look at the CVC report, then it should not interfere with October 23 order divesting Verma of his charge, giving it to M. Nageswara Rao and sending both Verma and Asthana on forced leave.

At the outset of the hearing on Thursday, Chief Justice Gogoi asked different counsels to confine their arguments to the question of law whether it was incumbent upon the government to have gone back to the selection committee even for divesting CBI Director Verma of his charge.

Nariman, along with senior counsel Dushyant Dave, Kapil Sibal and Rajeev Dhavan asserted that the government should have taken prior consent of the selection panel before transferring Verma and given his charge of Acting Director M. Nageswara Rao and cited several judgments of the top court to buttress their point.

Nariman said divesting Verma of his charge amounted to his transfer.

In the course of argument by Sibal, Chief Justice asked: "Is it absolute (requirement to go back to the selection committee), no matter what they do?"

While Sibal asserted that the government was "absolutely" required to approach the selection panel before interfering with the fixed two-year term of the CBI Director as provided under the law, Nariman said the law governing CBI mandated prior nod of the selection committee for the transfer of CBI Director.

He referred to Section 4B(2) of the Delhi Special Police Establishment Act, 1946 which says, "The Director shall not be transferred except with the previous consent of the Committee referred to in sub-section (1) of section 4A."

In response to a query by Justice Joseph on "what happens in the extreme situation when a person is caught red-handed taking bribe", Nariman said: "Then the government has to approach the selection committee or the court."

Sibal told the court that not only for divesting Verma of his charge as the CBI chief but also for giving it to Nageswara Rao, the government should have approached the selection panel.

Taking a dig at the way government interfered in the CBI, Sibal said tomorrow it could be the turn of the CVC, CAG or the election commissioners. If the appointment of CBI head is on the recommendation of the selection committee, then every remedy to address the crisis situation too has to be according to the procedure, he said.

Rajeev Dhavan said that the core of fixed two-year term of the CBI, the selection committee and the judgments of the top court starting with Vineet Narain is the "autonomy" of the investigating agency.

At the outset of the hearing, in an apparent reference to CJI Gogoi taking objections to certain media relating its hearing of the matter, Nariman said "that (reports) has nothing to do with his client (Verma)".

Senior counsel also said that media could not be prohibited from carrying report. He referred to a five-judge constitution bench judgment which said the media reporting of a matter before the court could be postponed but for that there was procedure to be followed.