Alok Verma Case : Who Has The Last Laugh?

Manu Sebastian
9 Jan 2019 7:45 AM GMT
Alok Verma Case : Who Has The Last Laugh?
Despite the elaborate judicial exercise, the powers that wanted Verma to remain out of charge are still having their way.
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Yesterday, the Supreme Court set aside the orders of Central Vigilance Commission(CVC) & Department of Personnel & Training(DoPT) which divested Alok Verma of the powers of CBI Director.

The Court rejected the defence of the Attorney General that action against Verma was mere divestment of charges, and hence it did not amount to 'transfer' so as to require the consent of the High Powered Committee. 'Transfer' cannot be given a restrictive meaning as in service jurisprudence, the Court observed. The Court held :

"If the word "transferred" has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of "previous consent of the Committee" is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be self-­defeating and would clearly negate the legislative intent. In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post".

On this premise, the Court held that the action against Verma required the sanction of High Powered Committee under Section 4(1) of the DSPE Act, which consists of the Prime Minister, Chief Justice of India or his nominee judge and the Leader of Opposition.

The court reinstated Verma as Director and directed the statutory committee to consider the matter again within a week's time. Till then, Verma has been restrained from taking any major policy decisions, except overseeing the day to day functioning of the agency.

Though the judgment is widely seen as a blow to the hasty, high-handed action by the Centre, one question arises : does it ensure substantive justice to Verma?  

A look at the time-line of the case will be pertinent :

  • Oct 23      :  Verma divested of charges of CBI Director,by orders passed by CVC & DoPT in an overnight order passed on Oct 23 
  • Oct 24      : Verma rushes to SC, challenging his removal. SC accepts the oral mention by Verma's counsel for urgent hearing.
  • Oct 25      : NGO Common Cause files PIL seeking SIT probe into circumstances leading to Verma's removal.
  • Oct 26      : SC directs the CVC to complete enquiry in allegations against Verma, under the supervision of retired SC judge Justice A K Patnaik. The                            report is directed to be filed in sealed cover by November 12.
  • Nov 12      : CVC report received by Court in sealed cover. Matter adjourned to November 16
  • Nov 16      : Time granted to Verma to file reply to CVC report. Matter adjourned to November 20
  • Nov 19      : SC refuses to extend time for Verma to file reply. Declining Verma's counsel's request for more time, the CJI asked him to file his reply on the                       same day itself, and made it clear that the hearing scheduled on next day(Nov 20) will not be adjourned.
  • Nov  20     : CJI expresses displeasure at the fact that Verma's reply has been published by media. "We refuse to hear you", the CJI said. Senior counsel                       Nariman later clarified that what was published in media was not Verma's reply filed in SC, but his responses to CVC                                                             interrogation. Despite the clarification, the CJI refused to hear the matter, and adjourned it to Nov 29
  • Nov 29      : SC hears the matter. Matter adjourned to December 5
  • Dec 5       : Hearing continues
  • Dec 6       : Orders reserved
  • Jan 8       : Verdict pronounced.

It appears that the initial sense of urgency shown by Court fizzled out somewhere in between.

The Court chose to refrain from examining the sufficiency of reasons for the action against Verma. The 44 page judgment, delivered almost a month after judgment was reserved, is on the narrow point whether the action against Verma amounted to 'transfer', which requires prior consent of the Committee(The judicial discussion starts from page 32 onwards, with the previous pages narrating the contentions of counsel). While answering the issue in the affirmative, the Court also held that the issue of divestment was still open to be examined by the Committee, and accordingly directed it to examine the matter within a week. Till then, Verma has been restrained from taking major policy decisions.

The PIL filed by Common Cause, which sought for an SIT probe into the circumstances leading to the ouster of Verma, was  jointly considered by the SC. The PIL had alleged that Verma's was removed to prevent him from investigating sensitive cases. It alleged that Verma was handling investigation of "sensitive" cases and that he was "being victimised for taking action against Mr. Rakesh Asthana, a Gujarat cadre officer and also for entertaining complaint against the top functionaries of the present government"

Without addressing the issues raised by the PIL, it was also disposed of along with Verma's petition by a common judgment.

Verma, who was appointed CBI director on January 20, 2017, will retire on January 19, on expiry of his statutory term.

So, even if the Committee approves his continuation, Verma will have very few days to function as CBI Director!

If the Committee finds that there are no reasons to keep Verma out of charge, will he get any extension of term by the period lost to him by the illegal order passed on October 23? There is no indication in the judgment on this point.

The October 23 orders against Verma were found to be against the spirit of the DSPE Act and the Vineet Narain Judgment, which is to insulate the CBI Director from external influence and to ensure the independent functioning of the agency.

Despite the elaborate judicial exercise, the powers that wanted Verma to remain out of charge are still having their way.

So, who is having the last laugh?

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