Extraordinary Constitutional Crisis

The CBI vs CBI mess has brought the nation’s premier investigation agency to an impasse

Extraordinary crisis needs an extraordinary response. And, it is indeed an extraordinary situation today in CBI. But, unlike as a section of the media wants us to believe, it is not a CBI versus CBI case, neither allegations of erstwhile number one CBI officer versus those of the number two. It is a case of an investigation by CBI with the support of the erstwhile Director against a Special Director brought in from outside the system against whom some serious allegations of taking bribe have been raised, the investigation of which was not stopped even by the Supreme Court though arrest of the Special Director was restrained for a few days.

Constitutional position

In a dramatic turn of events in the midnight of October 23, the agency's director Alok Verma, his deputy Special Director Rakesh Asthana, and several other officers were sent on leave by the government. The government in its defence said that the midnight order was necessary to maintain the "institutional integrity and credibility of India's investigation agency," calling the infighting in CBI as "extraordinary." The new (Acting) Director Nageshwar Rao has, within hours of taking over, transferred 14 CBI officers, including those investigating into Asthana's case, to Andaman. He has so far been an Assistant Director, far junior in the CBI pecking order, below Additional Directors. The government claimed that the steps were taken on the recommendations of the Central Vigilance Commission (CVC). Nageshwar Rao himself is tainted with charge of bribery regarding no action taken in VGN Developers' corruption case in Chennai but was brought into CBI on the recommendation of Venkaiah Naidu.

Outgoing Director Alok Verma who was "sent on leave" by the government, approached the Supreme Court, challenging the order. The matter will now be heard on Friday. It is important to note that the SC had earlier ordered the selection of the CBI Director through a collegium of PM, Leader of Opposition & Chief Justice of India, and for a minimum term of two years, which cannot be cut short by the incumbent government. This Selection committee was constituted under The Lokpal and Lokayuktas Act, 2013. Before this, central vigilance commissioner, under CVC act, had this power. That is how Alok Verma was selected DCBI. The govt had earlier appointed Rakesh Asthana as acting Director and was forced to have him continue in CBI as the Special Director instead. Naturally, this has been challenged in the Supreme Court by Alok Verma and the case will come up for hearing on October 26.

FIR against Asthana and team

The CBI had earlier booked its Special Director Rakesh Asthana in a bribery scandal, naming him as an accused in an FIR, for demanding and taking bribe from a businessman who was under investigation in the Moin Qureshi corruption case by a special investigation team (SIT) headed by Asthana. According to sources, CBI has put telephone intercepts, WhatsApp messages, money trail, and a statement before the magistrate under Section 164.

Exposing fault-lines within, the CBI on September 21, had said that it had informed the CVC how it was investigating Asthana in six cases of corruption. The CBI has also said Asthana was maligning Director Alok Verma's image and trying to "intimidate" officials by sending a "frivolous" complaint to the CVC against Verma.

Alok Verma had made his unhappiness clear even in July 2018. In a note marked "secret" and sent to the government then, a CBI note made the point "names of Officers who were being considered for induction in CBI were under examination by CBI as suspects/accused in criminal cases under investigation with this Bureau." The objection was to Rakesh Asthana attending a CBI committee meeting.

Allegations by Asthana against Verma

Asthana also brought in allegations against his former boss Verma with regards to bribes taken from people being investigated by CBI, for which no FIR has been filed and no evidence submitted in any court of law. A charge in the CBI FIR against Asthana and the arrested team Asthana officer, Devender Kumar, has been that they were falsifying testimony to manufacture a case against Verma.

The role of Supreme Court

All eyes are on the SC now. A bench comprising of Chief Justice Ranjan Gogoi and Justices S K Kaul and K M Joseph considered the submission of Verma that his plea against the Centre's decision to send him on leave required an urgent hearing, and the case will come up for hearing on Friday, October 26. The Constitutional validity of the removal of the CBI Director shall be the central piece of judicial enquiry. It remains to be seen whether the Court honours its own past decision of making the CBI Director's post sacrosanct for a 2-year tenure, with no political interference or goes with the government that it was an extraordinary situation and hence, the unusual measure was justified.

Possible scenarios

The possibility is bright that the Supreme Court may reinstate the CBI Director due to the constitutional protection the position enjoys. That will be a setback for the government indeed.

Second, if Alok Verma gets back his powers as CBI Director, chances of a CBI enquiry into the Rafale deal is highly possible since Verma had already met advocate Prashant Bhusan once to get full details of the Rafale corruption charges brought by Bhusan, Arun Shourie, and Yashwant Sinha earlier. Whether he can have his way and the team back even if he gets his position, is yet to be seen.

Third, the Asthana case coming up for hearing in the SC on October 29 will be another flash-point and may lead to several sensitive cases being exposed with regards to their political implications. Asthana has spearheaded several important investigations such as those into the AgustaWestland scam, the Bihar fodder scam, the coal scam and the probe against liquor baron Vijay Mallya. Asthana was also probing the INX Media case, allegedly involving former Union minister P Chidambaram, as well as the IRCTC tender issuance case involving former Bihar chief minister Lalu Prasad Yadav. It is observed by many legal luminaries and political observers that Asthana was brought in by the government, on NSA Ajit Doval's advice, to derail Vyapam investigation and fix political opponents in the cases noted above.

In fact, based on the SC stand on Friday, a Pandora's Box may open up with many warms coming out which can have large-scale political implications.

Long-term impact

According to the Supreme Court earlier during UPA rule, the CBI has been criticised for being a "caged parrot speaking in its master's voice", due to its excessive political interference irrespective of which party happened to be in power at the time. Because of the CBI's political overtones, it has been exposed by former officials such as Joginder Singh and B. R. Lall (Director and Joint Director, respectively) as engaging in nepotism, wrongful prosecution, and corruption. In Lall's book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organisation has been revealed in information obtained under the RTI Act, and RTI activist Krishnanand Tripathi has alleged harassment from the CBI to save itself from exposure via RTI.

Assam High Court had given a verdict on November 6, 2013, that CBI is unconstitutional and does not hold a legal status. However, the Supreme Court of India stayed this verdict when challenged by the central government and next hearing on this was fixed on December 6, 2013. Some legal experts believe that the ultimate solution for the Indian government is to formulate a law for CBI as sooner or later the Supreme Court may hold CBI unconstitutional.

The current impasse will open this conversation on the autonomy of the CBI from its political masters once again, and the constitutionality of the agency once and for all.

(The author is a political commentator and a media academic, currently the Dean of Pearl Academy School of Media, and previously Dean of Symbiosis and Amity Universities. The views expressed are strictly personal)

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