VAPPALA BALACHANDRAN | 23 OCTOBER, 2018
There is a constitutional breakdown because of the questionable roles of the PMO and CVC
In 2013 two retired police chiefs published Op-ed articles recommending that the CBI should be given constitutional status like the Election Commission (EC) or Controller & Auditor General (CAG) to insulate it from political pressure. They were responding to a Supreme Court observation (May 8, 2013) on the “Coal Scam” of CBI being “One parrot, many masters”. I opposed it through a column on May 19, 2013 as I felt that it was a dangerous step in a democracy. I argued that the EC and CAG had no power of search and arrests which CBI had. Without checks and balances this power could be misused. The Supreme Court had also observed on May 8, 2013: “The CBI cannot be given unbridled power as an unruly horse is a dangerous thing”.
I was reminded of this when the present sordid drama of the clashes between two titans of the CBI are unfolding. As I am writing this, Rakesh Asthana, CBI’s No: 2 has moved the Delhi High Court for quashing the FIR registered against him by the CBI under instructions from Director Alok Verma. However the High Court has not accepted Asthana’s plea to quash the FIR. Nor has it stayed the investigation into the bribery allegations against Asthana and his deputy Devendra Kumar, who has already been arrested and sent to seven day CBI custody. . The High court has only ordered that Asthana should not be arrested till Monday (29th) till the Court hears his plea.
I do not want to go into the merits of the case as it is sub judice. All I wanted to say is that this shameful drama would not have played out publicly but for the clumsy Machiavellian attempts by the Modi government to install Asthana as the de facto CBI director. This attempt however has exploded on their face. Also, it is not only the CBI which is in disrepute in this affair but also our external intelligence department whose Special Secretary in alleged to have “aided Asthana in the bribery case to settle a money-laundering case against Qureshi”.
That Asthana was the preferred choice of the higher political leadership in Modi government was apparent when the then CBI Special Director R.K.Dutta who was No: 2 was abruptly transferred to the Ministry of Home Affairs just prior to the retirement of CBI Director Anil Sinha on 2 December 2016. This was a brazen attempt by the PMO to get Asthana anointed as No: 2 although he was only an Additional Director. It was also a blatant attempt by the government to circumvent rules to confer leadership position to Asthana through the back door. Thus Asthana continued as “Acting director” from 3 December 2016 till 31 January, 2017.
On December 9, 2016 Supreme Court asked the government some very strong questions on a plea by Prashant Bhushan representing the “Common Cause” NGO: "Why was senior-most officer R K Dutta, supervising high profile 2G and coal scam cases, shifted out of agency without the nod of this court," a bench of Justices Kurian Joseph and RF Nariman asked while issuing notice to the government. "You have to reply on two questions, as to why Dutta was shifted out of CBI by curtailing his tenure and how the CBI's interim director was appointed," the bench said.
The plea had claimed that the government did not convene a meeting of the selection committee, even though it was fully aware that Anil Sinha was going to demit the office of CBI director on December 2.It alleged that the government had "prematurely curtailed" Dutta's tenure and transferred him to MHA on November 30 just two days before Sinha was slated to demit office.
To me it is clear that the Chief Vigilance Commissioner (CVC) K.V.Chowdary was also responsible for this affair by abdicating his constitutional responsibility. R K Dutta who decided to go back to his parent cadre (Karnataka) told “Hindustan Times” (October 8, 2018) how meekly the CVC had surrendered to political influence: “A note had gone to CVC that I was to be shifted from CBI to the home ministry and CVC just followed the course. CVC was supposed to look into the reasons of my shifting. CVC’s role comes into play when someone is shifted or inducted. If someone is to be given extension in tenure or prematurely sent out of CBI, CVC again has a role. It cannot act in a mechanical manner. It needs to know whether there is there is something which warrants removal of an officer”
Alok Verma took over as Director in February 2017 when the selection committee comprising of the Prime Minister, Leader of the Opposition and Chief Justice J.S.Khehar cleared him. The first sign of the rift between him and Asthana appeared in July 2018 when CBI informed the CVC that the Director had not delegated any powers to Asthana to represent him in his absence. At that time it was revealed that Alok Verma had objected to the promotion of Asthana as Special Director when the screening Committee was considering his case as he was involved in some corruption cases. Despite this he was cleared for promotion.
A report carried by a web site on 22 September 2018 lays bare the alleged intrigues which compelled the CBI to issue an unprecedented announcement that their Special director was “being probed in at least half a dozen cases”. The web report also accused some officials in the PMO of helping Asthana. The CBI statement says: “Certain allegations have been made in a newspaper published from New Delhi referring to a complaint filed before the Central Vigilance Commission against the Director CBI. The newspaper story has subsequently been carried in several electronic channels. It is unfortunate that baseless and frivolous allegations are being made publically without proper verification of facts to malign the image of the Director CBI and intimidate the officials of the organization.
“It is stated that the CVC has sought for certain case files from the CBI on the basis of a complaint filed by the Special Director, CBI. In its response to the CVC letter, the Chief Vigilance Officer (CVO) of CBI has pointed out that the complaint is an attempt by the complainant to intimidate the officers of CBI who are investigating his role in at least half a dozen cases. The CBI said that the CVC should opine on the maintainability of the complaint and consider it malicious and frivolous in order to protect the integrity of the organization” said CBI in a press statement”.
There is a constitutional breakdown here mainly because of the questionable roles of the PMO and also of the CVC who is supposed to be the watchdog for probity in public life. Now the headache has been conveniently transferred to the higher courts. It is a sad day for India.
(The writer is a former Special Secretary, Cabinet Secretariat)