NEW DELHI: The Supreme Court on Thursday said it would first consider whether the government has the power to divest the CBI director of his duties under whatever circumstances or whether the selection committee headed by the prime minister must be approached before moving against Alok Verma on corruption allegations involving him.
The court took this stand after making it clear that for now it was not going into the allegations and counter-allegations involving Verma and CBI's No.2 officer and Special Director R K Asthana both of whom have been stripped of their powers and sent on forced leave following their bitter feud. Verma's two-year tenure ends on January 31 next.
The top court also clarified it has not taken judicial note of Verma's reply given to the court in a sealed cover on the probe findings of the Central Vigilance Commission (CVC) against him.
A bench of Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K M Joseph said the hearing on the issue relating to the powers of the Centre will continue on December 5 and deferred hearing on the report of the CVC probe for a later stage. The report found that some charges against Verma needed further investigations.
"We will first go into the limited aspect whether the CBI director can be touched by any government order in whatever may be the circumstances or the government has no other option but to approach the selection committee before moving against him," the bench said.
During the hearing on Verma's petition seeking a stay on the Centre's order contending it was against the guidelines laid down by the top court, his counsel Fali S Nariman said that he was appointed as CBI chief for a fixed tenure of two years and cannot even be transferred.
Nariman submitted if at all there was any proposal to clip the wings of the CBI director, then the proposal should have first gone to the selection committee or the government should have moved the court.
But Attorney General K K Venugopal said it is the Centre which is the appointing authority of CBI director and the selection panel of Prime Minister, the Chief Justice of India and the leader of single largest opposition party only recommend the name to the government for appointment.
He said after making its recommendation for the CBI chief, the Committee is 'functus officio' and hence the question of going back to the same panel for any action doesn't arise.
'Functus officio' is an officer or agency whose mandate has expired because it has accomplished the purpose for which it was created.
At one stage, justice Joseph asked senior advocate Kapil Sibal, appearing for Congress leader Mallikarjun Kharge, what will happen if a CBI Director is caught red-handed for any offence.
Sibal responded that if this happens the government has no choice but to go back to the selection panel.
"Remedy of acting against the CBI director lay with the selection committee and I am not saying that no action can be taken against the CBI Director," he added.
The apex court said if the need arises it may ask the Centre and the CVC to file replies over the CVC report and even directed the probe agency to keep the record of all transfers of officers made after Verma was divested of his duties.
"We have not taken judicial note of Verma's reply. We will go into the report and reply of Verma only if it becomes necessary and then we may seek response from both of you (Centre and CVC)," the bench said.
Venugopal said CBI was in disgrace with all that is happening and the probe agency was getting adverse publicity which made the government to step in to protect its sanctity in public interest.
Observing that the CVC exercised its power of superintendence over CBI under section 8(1)(a) and (b) of the CVC Act with respect to a corruption case, the bench asked the AG under which provisions did the government issue order for divesting CBI chief of his duties.
The AG replied that the government acted under the Delhi Special Police Establishment (DSPE) Act which deals with superintendence over all other matters of the CBI.
The CJI then asked the AG whether the order for divesting CBI chief of his duties was to be of the Centre or the CVC.
Venugopal said the Department of Personnel and Training(DoPT) order of October 23 was an independent one and the CVC's power was activated by a complaint received by the Cabinet Secretary.
He said Verma continues to be CBI director and is getting all perks and residing in the same official house.
"I am on pure question of law. CVC passed an order on October 23, following which DoPT also passed the order without even consulting the selection committee. As per the provisions, the CBI director cannot be transferred without prior permission of the committee," Nariman said.
"There has to be strict interpretation of the Vineet Narain judgment. This is not the transfer and Verma has been denuded of his power and duties...otherwise there was no use of the Narain judgement and the law...," he added.
The Vineet Narain decision, delivered by the apex court in 1997, relates to probe of allegations of corruption against high-ranking public officials in India.
Before 1997, the tenure of the CBI director was not fixed and they could have been removed by the government.
Senior advocate Dushyant Dave, appearing for NGO 'Common Cause' which has come in support of Verma, said even if a person is facing the corruption charges the issues like transfer of the CBI director have to go before the selection panel.
