Case: ALOK KUMAR VERMA Vs. UNION OF INDIA


Decision reasoning: 1[ds]21. Though the Director, CBI is to be appointed by the Central Government on the recommendation of a similar High Power Committee, no provision with regard to interim suspension or removal is to be found in the DSPE Act, 1946, notwithstanding the fact that the said Act i.e. DSPE Act was amended by the CVC Act, 2003. The CVC Act, 2003 and the amendments made in the DSPE Act, 1946 were clearly made to bring the provisions thereof in proximity to the directions issued by this Court in Vineet Narain (supra) so far as the CVC and the CBI is concerned.Shri F.S. Nariman and Shri Dushyant Dave, learned Senior Counsels, who have argued the case for Shri Alok Kumar Verma, Director, CBI and Common Cause have contended that the history of the institutional framework surrounding the CBI leading to the statutory enactments in question and the views expressed in the judgment of this Court in Vineet Narain (supra), including the operative directions under Article 142 of the Constitution, can leave no doubt that the judicial endeavour should/must always be to preserve, maintain and further the integrity, independence and majesty of the institution i.e. CBI. This is the core intent behind the statutory enactments and the amendments thereto, details of which have been noticed. The Director of the CBI is the centre of power in an abundantly powerful organization having jurisdiction to investigate and to prosecute key offences and offenders having great ramifications and consequences on public life. There can be no manner of doubt that the Director who has been given a minimum assured tenure ofs than twomust be insulated from all external interference if the CBI has to live up to the role and expectations of the legislature and enjoy public confidence to the fullest measure. This is how the provisions of the cognate legislations i.e. the CVC Act, 2003 and DPSE Act, 1946 (as amended), must be interpreted, according to the learned counsels. It is specifically urged that the embargo under Section 4B(2) of the DSPE Act which mentions that the Director shall not be transferred except with the previous consent of the Committee must be construed in the broadest perspective to include any attempt to divest the Director, CBI of his powers, functions, duties, etc. in any manner whatsoever and not necessarily relatable to the transfer of the incumbent as is understood in ordinary parlance. According to the learned counsels, unless such a meaning is attributed to the provisions of Section 4B(2) of the DSPE Act, the legislative intent would be rendered futile and so would be the entire judicial exercise culminating in the operative directions of this Court in Vineet Narain (supra).25. So construed, according to the learned counsels, the exercise of power in the present case is blatantly and patently flawed. There can be no legal recognition of the action taken on the strength of the impugned orders which have been notified without seeking the previous consent of the Committee for appointment of Director, CBI constituted under Section 4A(1), of the DSPE Act, 1946.26. The alternative argument made is that if the provisions of Section 4B(2) of the DSPE Act are to bed by understanding the wordas is normally understood in service jurisprudence, the ultimate validity of the impugned exercise will have to be tested by the adequacy and sufficiency of reasons to justify a premature curtailment of the tenure of the Director, CBI. No such justification, according to the learned counsels, exists. In this regard, it has been pointed out that the allegations against the Director, CBI made by Special Director, CBI Shri Rakesh Asthana and the purported inquiry into such allegations by the CVC and the disinvestment of powers during the interregnum i.e. pendency of the inquiry are wholly unjustified actions prompted by collateral reasons. Interference, in the larger public interest, by this Court in the exercise of powers of judicial review under Article 32 of the Constitution of India would therefore be called for.The Court, in its bid to understand the true legislative intention behind the statutory enactments in question, cannot be oblivious of the views expressed by this Court in Vineet Narain (supra) leading to the operative directions in para 58 that formed the basis of the legislative exercise in question. The said views must be understood to have been considered fully by Parliament before engrafting the consequential directions contained in paragraph 58 of Vineet Narain (supra) in the form of statutory enactments, details of which have been noticed earlier.34. These are the basic facts that cannot be overlooked while gathering the intention of the legislature in making the provisions contained in Section 4A and Section 4B of the DSPE Act. An indepth consideration of the matter leaves us with no doubt that the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office of the Director, CBI from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.35. There are certain other relevant facts that cannot be ignored. The provisions of various State enactments (Police Act), as for example Uttrakhand Police Act 2007, following the decision of this Court in Prakash Singh And Others vs. Union of India And Others 4 (2006) 8 SCC 1 ,while providing for a tenure of two years to the Director General of Police of the State expressly contemplates removal of the incumbent before expiry of the the tenure on certain specified grounds [Section 20 (4) & (5)]. Similarly, Section 6 of the CVC Act, which has been extracted above, specifically contemplates certain interim measures against the Central Vigilance Commissioner or a Vigilance Commissioner pending consideration by the Supreme Court of the reference made by the President to the Court for removal of any such incumbent. Removal of any of the aforesaid incumbents holding any of the aforesaid posts is also contemplated on certain contingencies occurring as spelt out by(3) of Section 6 of the CVC Act.36. If the legislative intent would have been to confer in any authority of the State a power to take interim measures against the Director, CBI thereby affecting his functioning, surely, the legislation would have contained enabling provisions to that effect and consequently would have been differently worded and drafted. It is against this backdrop that the wordsexcept with the previous consent of thementioned in Section 4B(2) of the DSPE Act has to be understood. If the wordhas to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement ofconsent of theis understood to be only in such cases, i.e. purely of transfer, such an interpretation would beand would clearly negate the legislative intent. In such an event it will be free for the State Authority to effectively disengage the Director, CBI from functioning by adopting various modes, known and unknown, which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post. This is clearly not what the legislature could have intended. The long history of evolution has shown that the institution of the CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as the premier investigating and prosecuting agency without any fear and favour and in the best public interest. The head of the institution, namely, the Director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended. Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director. In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the Committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by Parliament. This alone can provide an adequate safeguard to ensure the independence of the office keeping in view the legislative intent, as found and held by us. In this regard we feel fortified in saying that the status of the Committe having undergone an upward movement by the amendment brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) it cannot but be said that the legislative intent in shielding and insulating the office of the Director from any kind of extraneous influence has been foremost in the mind of Parliament which intent found manifestation in the changes in law brought about in the circumstances noted above.37. There is yet another issue of significance that arises from the weighty arguments advanced in the course of the long debate that has taken place. This is with regard to the application of Sections 14, 15 and 16 of the General Clauses Act, 1897 so as to confer a power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of the CBI. The preceding discussions and our views on the true and correct meaning of the provisions contained in Sections 4A & 4B of the DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.38. So far as the correctness of the impugned decisions on merit is concerned, not much argument have been made either on the relevance or the sufficiency of the grounds shown and disclosed for the impugned decisions. This is, perhaps, on the understanding of the learned counsels that our attempts to keep the report of the enquiry by the CVC ordered on 26 th October and 12 th November, 2018 in sealed cover was sufficiently indicative of the mind of the Court that this aspect of the case should require to be unfolded only if inevitable and that too in the event of a negative decision on the jurisdictional question. The inherent limitation in such an exercise of, if at all is to be undertaken, is another inhibiting factor. Be that as it may such an exercise has now become wholly unnecessary in view of the decision on the jurisdictional issue.