Can CBI Director be outside scope of All India Services Act? [Live Updates on Alok Verma hearing

Can CBI Director be outside scope of All India Services Act? [Live Updates on Alok Verma hearing

Bar & Bench

The cases filed by Central Bureau of Investigation (CBI) Director Alok Verma and NGO Common Cause challenging the decision of the Central government to send Verma on leave continue today at the Supreme Court.

In October, the Court had ordered that the Central Vigilance Commission (CVC) inquiry initiated against Verma be completed within two weeks under the supervision of Justice (Retd.) AK Patnaik, to find out if there is a prima facie case made out against Verma.

On November 16, the Bench of Chief Justice of India Ranjan Gogoi and Justices Sanjay Kishan Kaul and KM Joseph had directed that a copy of the CVC report be served on Alok Verma so that he can respond to it. Alok Verma submitted his response to the CVC report in a sealed cover on November 19.

In yesterday’s hearing, Solicitor General Tushar Mehta had commenced his arguments on behalf of the CVC.  Senior Counsel Fali Nariman, Dushyant Dave, Kapil Sibal and Rajeev Dhavan have argued against the government’s decision to send Verma on leave. Attorney General KK Venugopal has also argued to defend the State’s decision to send Verma on leave. Arguments in the case will continue today.

Live Updates of today’s hearing follow:

Submissions by Solicitor General Tushar Mehta

  • The hearing begins in Supreme Court.
  • Solicitor General Tushar Mehta resumes his submissions.
  • The question before Your Lordships is whether a person who is a member of IPS and eligible for being Director of CBI, cease to be outside the scope of All India Services Act, Tushar Mehta.
  • Neither under Police Act nor under DSPE Act was a person eligible for being Director conceived to be not governed by Rules applicable to Police, Tushar Mehta.
  • The idea is to give them some permanence, CJI Ranjan Gogoi remarks with respect to the fixed two-year tenure.
  • CJI Gogoi says the argument by Verma is that any action which would divest him of his powers would be hit by Vineet Narain and would need the approval of Selection Committee.
  • I will satisfy Your Lordships that in this case, an emergent action was necessary. There are answers and I will provide them, SG Tushar Mehta.
  • A person continues to be part of IPS despite induction into CBI, submits Tushar Mehta. “There is no difficulty in that. Of course he continues to be part of IPS despite induction into CBI”, Gogoi J. responds.
  • Transfer would mean change in place of employment from one place to another and it would be a permanent act, Tushar Mehta.
  • CJI Ranjan Gogoi: Your argument is conditions of service means conditions of service wrt to his retirement. Tushar Mehta: And transfer and posting.
  • Suppose an officer taking bribe is caught on camera and needs to be suspended immediately, then that power is retained by the Central govt., submits Tushar Mehta.
  • Tushar Mehta now making submissions on superintendence of CVC over CBI.
  • Nobody is a sovereign within a sovereign. Situations may arise when Legislature has not provided for a situation, submits Tushar Mehta while explaining scope of power of superintendence by CVC over CBI under Section 8 of CVC Act.
  • I (CVC) would have been guilty of dereliction of duty if I had not acted, submits Tushar Mehta for CVC.
  • Solicitor General Tushar Mehta concludes his arguments.

Submissions by Attorney General KK Venugopal

  • If the matter was placed before the Committee, then the answer of the Committee would have been that ‘this is not a transfer, so why place it before us’, Attorney General KK Venugopal.
  • So it is a highly artificial argument (by the petitioner) to say that this is a transfer.

Submissions by Additional Solicitor General PS Narasimha

  • ASG PS Narasimha appearing for CBI. Cites Rules under All India Services Act relating to posting of officers
  • As per Rule 7, an officer may be transferred before the minimum prescribed tenure only on recommendation of committee; However it applies only to transfer simpliciter, ASG PS Narasimha concludes.

Submissions by Senior Advocate Mukul Rohatgi

  • Even if S. 4(2) is not there, Central govt will retain power except on 3 things – appointment, transfer, minimum tenure of 2 years. Thus, suspension, departmental enquiry and dismissal still lie within the sole domain of Centre, Sr. Adv Mukul Rohatgi.

Submissions by Senior Advocate Fali Nariman

  • Rejoinder submissions by Fali Nariman commences; Nariman making arguments on the ambit of “transfer”
  • Sections 4B (1) and 4B(2) of DSPE Act have to be read together, Fali Nariman.
  • Transfer’ includes divesting of functions and not just transfer from one place to another, Fali Nariman.
  • This is no ordinary Act, The genesis of this is in Vineet Narain, Fali Nariman.
  • This legislation has an origin which no legislation has; This is a extraordinary law, Fali Nariman.
  • The word “transfer” here is not service jurisprudence transfer, Fali Nariman.
  • When all the functions of my office are taken away, it is a ‘transfer’, Fali Nariman.
  • Bench rises for lunch, hearing to resume at 2 pm.

Post lunch updates:

  • Bench assembles, hearing resumes. Fali Nariman continuing his arguments.
  • Fali Nariman concludes his submissions,

Submissions by Senior Advocate Dushyant Dave

  • Dushyant Dave begins rejoinder arguments for Common Cause.
  • Parliament has gone beyond what Your Lordships suggested in Vineet Narain with regard to the composition of the Selection Committee and included PM, LoP and CJI, submits Dushyant Dave.
  • The power of superintendence of the CVC is limited to cases under Prevention of Corruption Act, Dushyant Dave
  • Section 8 of CVC Act does not give CVC the power of superintendence over the CBI Director, Dushyant Dave.
  • Parliament had brought a novel law; it is a law within a law, Dushyant Dave.
  • CVC cannot have one standard for Mr Asthana and another for Mr Verma, submits Dushyant Dave.
  • AG says Committee becomes functus officio after appointment; My submission is that the government becomes functus officio after appointment under S.4B, Dushyant Dave.
  • Dushyant Dave cites case of removal of Kerala DGP wherein Supreme Court had quashed the order of the State government.
  • Does DSPE provisions supersede every other law, making the Director virtually untouchable? asks CJI Ranjan Gogoi
  • Dave replies that in relation to conditions of service, transfer, appointment, the CBI Director is protected.
  • Dave concludes.

Submissions by Senior Advocate Kapil Sibal

  • Section 4(2) of DSPE Act is not the repository of power to divest CBI Director of his powers, Kapil Sibal.
  • Otherwise, it will be like giving unbridled power to Centre and will effectively nullify Vineet Narain, Kapil Sibal.
  • This is a ring fence provision that the statute has provided and it is pursuant to the Vineet Narain judgment. Otherwise the office of CBI Director will be in jeopardy, Kapil Sibal.
  • Kapil Sibal concludes his arguments.

Submissions by Senior Advocate Rajeev Dhavan

  • Rajeev Dhavan starts his submissions on behalf of AK Bassi.
  • Dhavan arguing on autonomy which was one of the principles laid down in the Vineet Narain case.
  • Dhavan making arguments on proportionality. Every exercise of power has to be proportionate. The test of proportionality is taking least invasive action, Rajeev Dhavan.

Hearing concludes in Supreme Court. Verdict reserved.

Read the order below.

Bar and Bench - Indian Legal news