Above: (L-R) The centre stripped CBI Director Alok Verma and Special Director Rakesh Asthana of all powers
Once again, the Supreme Court has been dragged in to clear a mess created by Executive decisions—this time with regard to the Central Bureau of Investigation
~By Puneet Nicholas Yadav
On October 24, in a post-midnight purge, Prime Minister Narendra Modi gave his nod for sending Central Bureau of Investigation (CBI) director Alok Verma and the agency’s special director, Rakesh Asthana, on leave, divesting them of all responsibilities. Verma was replaced with M Nageswara Rao as the interim director, becoming the first inspector general to be elevated as CBI chief.
Verma lost no time in challenging his ouster in the Supreme Court the same day. He blamed the central government and Chief Vigilance Commissioner KV Chowdary for acting in complete violation of Sections 4A and 4B of the Delhi Special Police Establishment (DSPE) Act, 1946, the Supreme Court’s decisions in the Vineet Narain case and Articles 14, 19 and 21 of the Constitution while replacing him with Rao.
On October 26, following arguments by senior advocate Fali Nariman, appearing for Verma, the Supreme Court bench headed by Chief Justice Ranjan Gogoi ordered that the CVC carry out within two weeks and under supervision of retired Supreme Court judge Justice AK Patnaik its inquiry against Verma. It also restrained Rao from taking any policy decision, unless absolutely essential, during this period—a directive that puts the nearly dozen transfers of CBI officials ordered by the interim chief on October 24 in a limbo. The Court’s orders are an embarrassment for the government as the bench saw prima facie merit in Verma’s contentions.
The government had earlier fielded Union Finance Minister Arun Jaitley to defend its decision. This was a questionable choice in itself given that matters related to the CBI should have ordinarily been addressed by the Union minister in charge of the Department of Personnel and Training. Jaitley painted the crisis as a result of a turf war between a 1979-batch IPS officer and his junior from the 1984 batch of the Gujarat cadre. He said that the decision to send the duo on leave was taken to “protect the institutional integrity” of the agency. And in another first, he admitted that the “faction feud has reached its peak in the CBI leading to a potential loss of credibility and reputation”. Shortly after, a government statement also blamed Verma for not cooperating with the CVC in an ongoing investigation.
The events that led to the current imbroglio can be seen as the result of a deeper rot that had set in the CBI earlier and have, as its principal perpetrators, those in the top echelons of the Modi government. It isn’t a simple turf war between two feuding IPS officers.
That power blocs and palace intrigues are integral to all appointments in the top levels of government organisations is a well-known fact.
The CBI, despite its claims of being an autonomous institution whose chief is mandated to be selected by a collegium of the prime minister, the chief justice of India and the leader of the Opposition, is not alien to this phenomenon.
THE GENESIS
The present crisis has its genesis in the Modi government’s controversial decision of December 2016 to name Asthana, an IPS officer with a questionable track record and with close links to Modi and BJP President Amit Shah, as the interim CBI chief after then Director Anil Sinha demitted office. Days ahead of Asthana’s appointment, CBI Special Director RK Dutta, who was seen as the frontrunner to succeed Sinha, was transferred by the government as special secretary to the Union home ministry, ostensibly to ensure Asthana’s elevation.
However, in January 2017, the collegium which appoints the CBI chief selected Verma for the role. Sources told India Legal that though the prime minister favoured Asthana being confirmed as CBI chief, other collegium members—then Chief Justice JS Khehar and Congress leader in the Lok Sabha Mallikarjun Kharge—stridently backed Verma. Modi is not known for dithering on his choice of people in high offices, but was convinced about Verma’s credentials by his National Security Adviser, Ajit Doval.
Verma took over as CBI director on January 19 last year with a secured two-year term, though this has now been cut short. On October 23, 2017, Asthana was elevated as the agency’s special director. Verma had, in submissions to the CVC, which vets all senior appointments in the CBI, objected to Asthana’s appointment. He cited corruption cases pending against him, but was overruled. To be fair to Asthana, his elevation was later upheld by the Supreme Court.
India Legal has learnt that Verma was later instructed by a top-ranking official in the Prime Minister’s Office to not question decisions taken by Asthana, especially in matters of transfers of other officials in the agency and cases of a politically sensitive nature. Verma took this advice as a personal slight, but kept quiet.
However, on July 12 this year, while Verma was abroad, Asthana sent to the CVC a list recommending appointments and promotions in the CBI. Verma promptly asked a subordinate officer in the CBI’s policy wing to write to the CVC’s CBI selection committee stating that Section 4C of the DSPE Act clearly states that appointments to the agency can only be carried out after consulting the CBI director.
Asthana struck back at Verma on August 24. He wrote to the CVC complaining that Verma and his close aide, Joint Director AK Sharma, number three in the CBI hierarchy and also a Gujarat-cadre officer, were involved in bribe-seeking and were stalling investigations in the IRCTC scam in which RJD chief Lalu Prasad Yadav and his family are accused.
BEHIND THE SCENES
Sources told India Legal that Asthana kept the prime minister’s additional principal secretary, PK Mishra, in the loop about his complaint. Asthana even alleged that Verma had received bribes from Hyderabad-based businessman Sathish Babu Sana in order to clear his name from an ongoing case against controversial meat exporter Moin Qureshi. Ironically, it is Sana’s testimony, recorded in front of a magistrate, which gave Verma a chance to have Asthana named as accused number one in an FIR linked with the Qureshi case. Sana has alleged that he paid an over Rs 3 crore bribe to Asthana and CBI Deputy Superintendent of Police Devender Kumar (now in police custody) to clear his name from the case. Asthana was already drawing flak for allegedly giving the order that diluted the “look out” notice against absconding defaulter Vijay Mallya that allowed the latter to flee India.
Curiously, even at this late stage, when the CBI director and special director were engaged in filing official complaints against each other, the prime minister or others in his government didn’t intervene to stop the mudslinging. Any argument by the BJP now that they did, would give the impression that Modi was losing control of his senior officials.
Asthana’s proximity to Modi and Shah is well-known. He was the one who led investigations into the 2002 Gujarat riots cases that gave a clean chit to a slew of BJP leaders. The pendency of at least five corruption cases against him, including the high-profile Sterling Biotech case, did nothing to dash his appointment as interim CBI director and then special director. So why would Verma antagonise an officer who clearly enjoys the confidence of the prime minister?
Sources told India Legal that Verma decided to take on Asthana because he had the backing of Doval. The NSA, sources say, only tolerated Asthana because of his proximity to Modi. However, Asthana’s closeness to Mishra, with whom Doval shares an uneasy equation, perturbed the NSA.
This aside, it is learnt that Doval also agreed with Verma’s stand that while the CBI could, as has become an unhealthy tradition, target the ruling dispensation’s political rivals, it would do so only after its investigations against these individuals reached a point where they would stand legal scrutiny in court. Asthana, on the other hand, appeared eager to raid and search Opposition leaders—with or without credible evidence. This riled Verma and Doval agreed that the political fallout of such raids would benefit the Opposition more than the government.
Sources close to Verma told India Legal that as CBI director, he didn’t immediately authorise raids against Lalu because he wasn’t convinced of the progress in the probe against the RJD chief that Asthana was leading. Similarly, they said, Verma had resisted diktats to raid Congress President Rahul Gandhi and his mother, Sonia, close relatives of BSP chief Mayawati and West Bengal Chief Minister Mamata Banerjee at different times during the past year because he was convinced that such an action would not stand legal scrutiny.
THE RAFALE MISSTEP
However, the miscalculation on Verma’s part, sources say, was his decision to personally accept a detailed complaint from Modi-baiters Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan in the controversial Rafale deal case. The CBI had earlier received a similar complaint from Aam Aadmi Party MP Sanjay Singh. Verma had even asked the Union defence ministry to provide documents pertaining to the Rafale deal, apparently to corroborate the charges levelled by Sinha, Shourie, Bhushan and Singh. This tipped the scales against Verma and Doval too withdrew his support to the now cornered CBI director.
Sources say Asthana tipped off high officials in the government of Verma’s intention to probe the Rafale deal, which Rahul has already sought to turn into an election plank. Verma, in turn, expedited the process of registering an FIR against Asthana in the Sana case. Once the FIR was registered, Verma met the prime minister on October 21 and reportedly told him that not only was Asthana’s continuation in the CBI “untenable”, but that he wanted the government to grant sanction for his prosecution. Verma, however, got no assurances from Modi. Sources say that shortly after this meeting, Verma was informed by his sources in the PMO that the government could send him and Asthana on leave. The heads-up gave Verma time to seek legal recourse should he be unceremoniously removed—something he did on October 24 by filing a plea in the Supreme Court. However, he has maintained that he got to know of the government’s order only at 6 am that day.
PLIANT CVC
There is little doubt that the manner in which Verma was sent on leave and the way the CVC approved the elevation of Rao as interim CBI director was a flagrant violation of the established due process. It is for this reason that Chowdary too might find it difficult to escape the heat from the CBI implosion. The Supreme Court’s decision to appoint its former judge, Justice Patnaik, to monitor the CVC probe against Verma reflects poorly on Chowdary.
The fact that Chief Justice Gogoi has given only two weeks for the Court-monitored probe against Verma to be completed and restrained Rao from taking any policy decisions until then shows the urgency he attaches to clearing the mess in the CBI. The appointment of a former judge to monitor the probe can also be interpreted as the Court’s lack of faith in the CVC.
The DSPE Act has no provision to allow the centre to unilaterally transfer a CBI director or to send him on leave. Any action of the sort can only be taken by the collegium responsible for his appointment after carrying out a full-scale inquiry into reasons cited for divesting the CBI chief of his responsibilities. This due process was evidently not followed while removing Verma. In his petition before the Supreme Court, Verma dubbed his ouster “patently illegal” and proceeded to make a damning claim: “I can furnish details of many cases which have led to the present circumstances. They are extremely sensitive. There is need for an independent CBI. The present circumstances occurred when certain investigations into high functionaries do not take the direction that may be desirable to the government.”
When the Court resumes its hearing of Verma’s case on November 25, there is a strong possibility that his counsel will bring to its notice questionable actions taken by Chowdary earlier. Ironically, Chowdary himself was facing cases when the Modi government approved his appointment as CVC.
Verma’s equations with Chowdary have been antagonistic, to say the least. It was Chowdary who overruled Verma’s objections to the appointment of Asthana as CBI special director, though two other vigilance commissioners had reportedly supported the CBI chief’s contentions. Later, the CVC had turned down a request to investigate Rao for his alleged involvement in the Hindustan Teleprinters scam in Chennai. Rao was the CBI’s joint director for Chennai Zone when the scam broke out. Chowdary’s refusal to probe Rao had forced Verma to order that all corruption investigations in Chennai be moved out of the CBI to the Banking and Securities Fraud Cell in Bengaluru. It is also important to note that Rao shares the BJP’s penchant for Hindutva and its reservations about Muslims and Communists. He has also been a regular at functions organised by India Foundation, linked to BJP leader Ram Madhav, and Vivekanand Foundation, founded by Doval and now run by his son, Shaurya Doval.
The centre is now arguing that Verma’s ouster also had to do with his supposed refusal to cooperate with the CVC in certain cases. A statement issued by the government following Verma’s ouster said: “The CVC has observed that Director, CBI has not been cooperating in making available records/files sought by the Commission relating to serious allegations. The CVC has also observed that the Director, CBI has been… non-compliant with the requirements/directions of the Commission and has created willful obstructions in the functioning of the Commission which is a Constitutional body.” These averments of the centre do not stand legal scrutiny because the CVC does not have the authority to compel the CBI director to share documents related to ongoing investigations unless he is ordered to do so by a court. Justice Patnaik who is now tasked with monitoring the CVC probe against Verma could look into these charges made by the centre.
THE COVER-UP?
Rao’s actions after taking over as the interim CBI chief raise serious doubts on whether the CBI investigation against Asthana will proceed at the same pace as earlier. All officers probing Asthana in at least six corruption cases were transferred out of Delhi by Rao. AK Bassi who was leading the investigation in these cases has been shunted out to far-flung Port Blair. Manish Kumar Sinha and SS Gurm have been transferred to Nagpur and Jabalpur, respectively. Even the CBI joint director and Asthana rival, AK Sharma, has been divested of his charge of the CBI’s Anti-Corruption Bureau (ACB) and will now continue as head of the policy wing only.
Curiously, A Sai Manohar, who was removed by Verma from the SIT probing the cases against Asthana, has been brought back by Rao to replace Sharma as head of the ACB. Other officers close to Asthana and with equally questionable pasts have been brought back to Delhi to investigate the cases against the ousted special director.
Among them is CBI Deputy Inspector General Tarun Gauba who was posted in Chandigarh. Gauba had previously investigated the Vyapam scam cases in Madhya Pradesh and his probe report had triggered massive protests by the Opposition as it gave a clean chit to Chief Minister Shivraj Singh Chouhan under whose watch the scam broke and over 40 people linked to the case died under mysterious circumstances.
The top court’s order restraining Rao from taking policy decisions, unless absolutely essential, till the CVC completes its probe against Verma has now put these transfers in a limbo. However, the restraining order against Rao shows that the Court doesn’t condone his actions.
It is evident that the Supreme Court will now be supervising administrative operations of the CBI, at least till the next date of hearing on November 25. That things were allowed to come to such a pass in the country’s premier investigating agency are only an extension of the systemic corrosion in institutions in India over the past four years of the current government.