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TMI Blog2019 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Vineet Narain has been scrupulously followed by Parliament. In fact, at this stage, we may even take note of the fact that Parliament on its own in amending Section 4A of the DSPE Act by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) has gone a step further to give effect to the directions of this Court made in Vineet Narain inasmuch as the object for change of the Committee for making recommendations for appointment of the Director, CBI has been stated to be the necessity “to provide a High Power Selection Committee for selection of Director of the Delhi Special Police Establishment” - 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 leading to the operative directions in para 58 that formed the basis of the legislative exercise in question. 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatgi, Sr. Adv., Mr. A. Sharan, Sr. Adv., Mr. Amit Anand Tiwari, AOR, Mr. Shashwat Singh, Adv., Mr. K. Parameshwar, AOR, Mr. M.V. Mukunda, Adv., Dr. Rajeev Dhavan, Sr. Adv., Mr. Sunil Fernandes, AOR, Ms. Indira Jaising, Sr. Adv., Mr. Sunil Fernandes, AOR, Mr. Kapil Sibal, Sr. Adv., Mr. Devadatt Kamat, Adv., Mr. Rajesh Inamdar, Adv., Mr. Javedur Rahaman, Adv., Mr. Aditya Bhat, Adv., Mr. Mohammed Ali Khan, Adv., Mr. Ashwin G. Raj, Adv. And Mr. Gautam Talukdar, AOR JUDGMENT RANJAN GOGOI, CJI 1. That the Rule of law is the bedrock of democracy would hardly require any reiteration. However firmly entrenched the principle may be, it gets tested in a myriad of situations that confronts the courts from time to time. The present is one such occasion. 2. On 23rd October, 2018, the Central Vigilance Commission (hereinafter referred to as CVC ) passed an order divesting Shri Alok Kumar Verma, Director, Central Bureau of Investigation (hereinafter referred to as CBI ) of the powers, functions, duties, supervisory role, etc. vested in him as the Director of the CBI. The exercise of said power by the aforesaid order dated 23rd October, 2018, signed by the Central Vigilance Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil) No.1315 of 2018) from the CBI and for constituting a Special Investigating Team ( SIT for short) to go into the charges of corruption against the officials of the CBI and also the FIR lodged against Mr. Rakesh Asthana, Special Director, CBI, details of which are mentioned in the writ petition filed by Common Cause. 8. The order of the CVC dated 23rd October, 2018 is fairly long and elaborate. What is essentially stated therein is that a complaint dated 24th August, 2018 was forwarded to the CVC by the Cabinet Secretary by letter dated 31st August, 2018 which, prima facie , revealed charges of corruption against the Director, CBI, Shri Alok Kumar Verma. The CVC considered it worthwhile to take note of the contents thereof and had sought the explanation/comments of the Director, CBI along with the relevant record(s). According to the CVC, instead of cooperating in the matter, the Director, CBI had sought information as to the identity of the person who had complained to the Cabinet Secretary in that regard and had gone to the extent of bringing specific allegations against the Special Director, CBI Shri Rakesh Asthana. Details of several cases of corruption wherein the Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized under the provisions of this Act, no person, officer, or Court shall be empowered by the State Government to supersede, or control any police functionary. 14. The DSPE Act was enacted in the year 1946 to carve out an exception to the Police Act, 1861. The same is evident from Section 2(1) which is in the following terms: 2. Constitution and powers of police establishment. (1) Notwithstanding anything in the Police Act, 1861 (5 of 1861) the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union Territory of offences notified under Section 3. 15. Initially the administration of the Delhi Special Police Establishment was governed by the provisions of Section 4 of the DSPE Act which contemplated the following: 4. Superintendence and administration of SPE- (1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government. (2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now be taken note of. SUMMARY OF RECOMMENDATIONS I. CBI and CVC 1 . CVC to be conferred statutory status; appointment of Central Vigilance Commissioner to be made under the hand and seal of the President (para 4.2) 2 . Constitution of a Committee for selection of CVC (para 4.3) 3 . CVC to overview CBI s functioning (para 5) 4 . CBI s reporting to Government to be streamlined without diluting its functional autonomy (para 3.3) 5 . CVC to have a separate section in its Annual Report on the CBI s functioning after the supervisory function is transferred to it (para 6) 6 . Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel (para 8.2) 7 . Central Government to pursue with the State Governments to set up credible mechanism for selection of Police Chief (para 8.3) 8 . Director CBI to have a minimum tenure of 2 years (para 8.4) 9 . Transfer of incumbent Director CBI would need endorsement of the Selection Committee (para 8.5) 10 . Director CBI to ensure full freedom for allocation of work within the Agency, including constitution of investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es/courts (para 11.2) 26 . Government to establish Special Courts for the trial of CBI cases (11.3) 27 . Severe action against officials found guilty of highhandedness; prompt action against those officials chastised by the courts (para 11.4) 28 . Director CBI to conduct regular appraisal of personnel to weed out the corrupt and inefficient, and maintain strict discipline within the organization (para 11.5) 19. In paragraph 58 of the report of this Court in Vineet Narain (supra) directions under Article 142 of the Constitution of India which were to hold the field till such time that the necessary statutory enactments are brought into force, came to be issued by this Court. Paragraph 58 of the report of this Court in Vineet Narain (supra) insofar as CVC and CBI are concerned is in the following terms: 58. As a result of the aforesaid discussion, we hereby direct as under: I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC) 1 . The Central Vigilance Commission (CVC) shall be given statutory status. 2 . Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 10 . Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision. 11 . Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. Sub-section (3) of Section 6 of the CVC Act also empowers the President to remove from office the Central Vigilance Commissioner or any Vigilance Commissioner in the following cases: (a). is adjudged an insolvent; or (b). has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or (c). engages during his term of office in any paid employment outside the duties of his office; or (d). is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or (e). has acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Corruption Act, 1988 (49 of 1988) and an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial; (e). review the progress of investigations conducted by the Delhi Special Police Establishment into offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) or the public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial; (f). review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988 (49 of 1988); (g). tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise; (h). exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng matters, namely:a. summoning and enforcing the attendance of any person from any part of India and examining him on oath; b. requiring the discovery and production of any document; c. receiving evidence on affidavits; d. requisitioning any public record or copy thereof from any court or office; e. issuing commissions for the examination of witnesses or other documents; and f. any other matter which may be prescribed. 23. The provisions of the DSPE Act as amended by Act No.45 of 2003 (The Central Vigilance Act, 2003) and Act No.1 of 2014 (Lokpal and Lokayuktas Act, 2013) may also require a specific notice. Sections 4, 4A and 4B introduced by the aforesaid amendments, on which elaborate arguments have been made by the contesting parties, provide as follows: 4. Superintendence and administration of Special Police Establishment.- (1) The superintendence of the Delhi Special Police Establishment in so far as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission. (2) Save as otherwise provided in sub-section (1), the superintendence of the said police es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve, 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 of not less than two years must 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia (1991) 3 SCC 47 and Jai Singh Dalal and others vs. State of Haryana another 1993 Supp. (2) SCC 600 to contend that when the law does not recognize in any incumbent, who may have been recommended, a right to be appointed it cannot be contended that after the appointment is made the Committee constituted to make recommendations for appointment has to be consulted in all cases of disinvestment of power, even beyond what is specifically provided for by Section 4B(2) of the DSPE Act. Section 4B(2), it is pointed out provides/mandates the requirement of previous consent only in cases of transfer of the Director which is also what had been directed by this Court in paragraph 58(8) of the report in Vineet Narain (supra). The Learned Attorney has further submitted that the present is not a case of transfer so as to require the previous consent of the Committee under Section 4B(2) of the DSPE Act. Reliance has also been placed on the provisions of Section 16 of the General Clauses Act, 1897 to persuade the Court to recognise in the Central Government a power to divest the Director, CBI of his powers, functions, duties, etc. According to the learned Attorney the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andate under the Statute which flows from the operative directions issued by this Court in paragraph 58 of Vineet Narain (supra). Therefore, according to the learned counsels for the petitioners, the impugned orders passed without obtaining prior consent of the Committee are nonest in law and no other issue really need be gone into in the present case. 31. The above contention raises a pure question of law answerable on application of known and established principles of law including interpretation of the provisions of the CVC Act, 2003 and the DSPE Act, 1946 and further in the light of such legislative intent that can be culled out in making the enactments in question. Not only do we prefer to deal with the said question in the first instance for the above stated reason but such an exercise becomes obligatory in view of the jurisdictional questions that are inbuilt therein. On the aforesaid basis the second question raised can be relegated to a later stage of consideration, which question, we may indicate is one relating to the sufficiency/adequacy or even the relevance of the reasons that had prompted the CVC and the Government of India to take the impugned decisions, a qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy of which rule of law is the bedrock. The basic postulate of the concept of equality: Be you ever so high, the law is above you, has governed all steps taken by us in these proceedings. xxx xxx xxx 48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious consent of the Committee referred to in sub-section (1) of section 4A . As already noticed, Section 4B including sub-section (2) thereof of the DSPE Act, as it exists on date, were brought in by the same legislation i.e. CVC Act (Act No.45 of 2003). 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 words transferred except with the previous consent of the Committee mentioned in Section 4B(2) of the DSPE Act has to be understood. If the word transferred has 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 of previous consent of the Committee is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be selfdefeating and would clearly negate the legislative intent. In such an event it will be free for the State Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 26th October and 12th 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 exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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