CBI crisis

Crisis:

• There has been a long-running feud between the Central Bureau of Investigation (CBI) top boss Alok Vermaand Rakesh Asthana, the special director who is the No. 2 at CBI.
• This long running feud has been marked by allegations and counter-allegations of corruption and interference in high-profile cases, filing of an FIR against Asthana and the arrest of senior CBI officer associated with him.
• In October 2017, Asthana, who is a Gujarat-cadre IPS officer, was elevated to the position of No. 2 at the CBI by a selection committee headed by Central Vigilance Commission (CVC).
• CBI head Verma had reportedly opposed Asthana’s elevation on the ground that he was being probed in a corruption case related to a Gujarat-based company Sterling Biotech.
• Verma had placed before the committee a confidential report on Sterling Biotech in which names of various government officials including Asthana were mentioned for allegedly receiving money from the company.
• However, it is important to note that Chief Vigilance Commissioner K V Chowdary said the decision was taken unanimously by members of the selection committee.
• Later, Common Cause, which is an NGO of advocate Prashant Bhushan, moved the Supreme Court against Asthana’s elevation but the court refused to quash Asthana’s elevation.

Prior Precedents where the CBI was brought under a negative light:

• The Supreme Court held the charges that Ranjit Sinha, when heading the agency, sought to help the accused in several cases and interfered in ongoing probes were ‘prima facie credible’; as a result, he was asked to keep away from the 2G telecom cases.
• Similarly, A. P. Singh, another director, was booked last year for alleged links with meat exporter Moin Qureshi.
• Thus, clearly, the existing procedure for the appointment of CBI Directors, which is made by a committee comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition, has not stripped the office of controversy.

CBI Director removed:

• Central Vigilance Commission has ordered removal of Mr. Verma.
• CVC said that since the atmosphere within the agency had become vitiated due to a factional feud, it had to intervene.
• It also charged Mr. Verma with not making available the records and files sought by the CVC in connection with a corruption complaint against him – an approach which it held was wilfully obstructionist.
• CVC has power of superintendence over CBI.

Security of Tenure of CBI Director:

• Section 4B of the Delhi Special Police Establishment Act assures the CBI Director of a two-year tenure and makes it clear that he cannot be transferred except by the high-power committee.
• High-power committee comprises of the Prime Minister, the Leader of the Opposition and the Chief Justice of India — that appointed the CBI Director.
• The Honourable Supreme Court will address the question whether the ‘interim measure’ amounts to unlawfully curtailing the Director’s tenure.
• The Honourable Supreme Court will also examine whether the CVC’s power of superintendence has been rightly invoked in the present case.

Role of CVC with respect to CBI:

• The CVC is not an investigating agency. The only investigation carried out by the CVC is that of examining Civil Works of the Government.
• Corruption investigations against government officials can proceed only after the government permits them. The CVC publishes a list of cases where permissions are pending, some of which may be more than a year old.
• The Ordinance of 1998 conferred statutory status to the CVC and the powers to exercise superintendence over functioning of the Delhi Special Police Establishment, and also to review the progress of the investigations pertaining to alleged offences under the Prevention of Corruption Act, 1988 conducted by them.
• In 1998 the Government introduced the CVC Bill in the Lok Sabha in order to replace the Ordinance, though it was not successful.
• The Bill was re-introduced in 1999 and remained with the Parliament till September 2003, when it became an Act after being duly passed in both the Houses of Parliament.
• The CVC has also been publishing a list of corrupt government officials against which it has recommended punitive action.
• In 2004, GoI authorised the CVC as the “Designated Agency” to receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action.

Latest changes in CVC Act

• The Lokpal and Lokayuktas Act, 2013 has amended some provisions of CVC Act, 2003 and the Commission has been empowered to conduct preliminary inquiry into complaints referred by Lokpal in respect of officers and officials of Groups B, C & D, besides Group A officers.
• The Commission’s additional functions would include conducting preliminary inquiry into the complaints referred by Lokpal in respect of Gr. ‘A’, ‘B’, ‘C’& ‘D’ officials for which a Directorate of Inquiry for making preliminary inquiry is to be set up in the Commission.
• The preliminary inquiry reports in such matters referred by Lokpal in respect of Group A and B officers are required to be sent to the Lokpal by the Commission. Further, as per mandate, the Commission is to cause further investigation into such Lokpal references in respect of Gr. ‘C’& ‘D’ officials and decide on further course of action against them.

Hawala Case judgement: The landmark verdict of SC on CVC

• From 1964 to 1993, for nearly three decades, the CVC rolled along without making any visible dent on the problem of corruption in the country.
• A very important milestone in its history occurred when the Supreme Court pronounced its judgement in what is popularly known as the Hawala Case.
• The gist of allegations made in the writ petitions filed on 4 October 1993 was that:
  1. financial support was given to terrorists by clandestine and illegal means using tainted funds obtained through hawala transactions;
  2. the CBI and other agencies failed to investigate these properly and prosecute those who were involved in committing the offences; and
  3. this was done deliberately to protect persons who were influential and powerful.

SC Judgment and CVC

In this judgment court declared the Single Directive null and void and gave directions to establish institutional and other arrangements aimed at insulating the CBI and the Directorate of Enforcement of the Ministry of Finance from outside influences.

1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection of CVC:
   • Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary.
   • The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.
3. CVC will oversee CBI:
   • The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning.
   • The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigation; cases in which charge-sheets are filed and their progress.
   • The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, especially those in which sanction has been delayed or refused.

4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is transferred to it.

6. Appointment of CBI Director:
   • Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members.
   • The views of the incumbent Director shall be considered by the Committee for making the best choice.
   • The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee.
   • If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.
7. Security of tenure of director:
   • The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation.
   • This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.

SC decision on CBI director issue:

• SC has not immediately reinstated the CBI Director and instead has clipped the wings of the “interim” Director, restraining him from making any policy or major decisions, except those that are routine and essential for the CBI to function.