Observing that the ‘essence’ of every government action must be in the interest of the institution, the Supreme Court asked the Centre and the Central Vigilance Commission what was the ‘grave exigency’ that prompted the ‘overnight’ decision to divest Alok Verma of his powers as Central Bureau of Investigation Director over his bitter feud with Special Director Rakesh Asthana.
The court said this while posing searching questions to the Centre and the Central Vigilance Commission for waiting for more than three months to intervene in the feud between Verma and Asthana, who is the probe agency's No.2.
"Institutions cannot be allowed to crumble," the court observed while reserving its verdict on the petitions filed by Verma and others challenging the Centre's October 23 decision to divest him of all powers and sending him on leave.
"The essence of every government action must be in the interest of the institution and to adopt the best course," said a bench headed by Chief Justice Ranjan Gogoi.
At one stage, the court asked, "Can there be an acting director?"
Verma's counsel and senior advocate F S Nariman replied in the affirmative. "Yes", he said.
The bench than posed another query as to whether the apex court can appoint anyone to head the CBI for which Nariman responded that it can as it has the powers under the Constitution.
The top court reminded the Centre and the CVC that it was not that the fight between Verma and Asthana emerged overnight, forcing the government to divest the director of powers without consulting the Selection Committee comprising the Prime Minister, the leader of the Opposition and the Chief Justice of India.
The court noted that the Attorney General K K Venugopal had submitted that the circumstances culminating in the situation had started in July but the government action came in October.
The Bench, also comprising Justice S K Kaul and K M Joseph, said the government has to be "fair" and asked what the difficulty was in consulting the Selection Committee before divesting the CBI director of his powers.
"Nariman's submission is also what the difficulty in consulting the selection panel is. It is better to consult the selection panel. What is the best in the interest of the administration of the institution," the bench said, adding ‘at the earliest, go to the panel or committee when there is a grave exigency’.
"Can you see the situation which prompted CVC to take action? It was not overnight. It was happening since July as the Attorney General said."
The court made the observations when Solicitor General Tushar Mehta was justifying the action of the CVC which entertained the complaint of Asthana that was forwarded by the Cabinet Secretary.
Mehta, representing the CVC, said extraordinary situations needed extraordinary remedies and referred to apex court judgements and the laws governing the CBI.
He said the Commission's superintendence over the CBI encompassed ‘surprise, extraordinary situations’.
Mehta told the court that the top officers of the CBI, ‘instead of investigating cases, were investigating cases against each other’.
He said the jurisdiction is vested in the CVC to inquire or else it would have been guilty of dereliction of duty. If it did not act, it would be answerable to the President of India and the Supreme Court, he added.
Further, he justified the intervention of the CVC in the tussle between the two officers by saying that ‘the ongoing fight between them vitiated the official environment in the CBI. It vitiated the environment among CBI officials.’
When the bench said the power of the CVC is confined to the investigations of cases under the Prevention of Corruption Act and referred to the directions issued on October 23, the Solicitor General said the orders were passed in respect of both the officers under extraordinary and emergent situation.
He said the justification is also in order as the two senior officers were fighting against each other and ‘the investigating officers in each case were raiding each other and FIRs were being filed against each other and it was a surprise situation’.
Senior advocate Mukul Rohatgi, appearing for Asthana, said he was a whistle-blower in the case, but was painted by the government with the same brush and sought a direction to the Centre that it should must take the CVC's preliminary inquiry against Verma to a logical end.
"My assumption is that the CVC report is adverse in part to the gentleman (Verma). The Central government should take this report to logical end," Rohatgi said.
Nariman said the Centre's order took away all the powers of the CBI Director.
"The officer should have powers of Director. Tenure of two years does not mean that Director can have a visiting card with title, but without powers," submitted Nariman, in a reference to the AG's argument that Verma continues to be the agency Director.
Nariman repeated his argument that what prevented the Centre to approach the selection committee which could have taken a decision whether to approach the CBI or whatever they might have thought.
Senior advocate Dushyant Dave, appearing for NGO 'Common Cause', said, "If there was any exigency government should have rushed back to selection committee."
"Even the all India Service rules do not apply to the CBI Director as he has a fixed tenure," he added.
The court then asked, "Does the fixed tenure of CBI Director supersede all rules and makes him untouchable?"