Does the CBI Director have such protection that neither the Centre nor the CVC can touch him for his any action during the fixed tenure of two years?
This question arose on Thursday in the Supreme Court which was hearing the petitions filed by CBI Director Alok Verma and others challenging the Centre's decision to divest him of all powers and sending him on leave along with Special Director Rakesh Asthana. Both have levelled allegations of corruption against each other.
When senior advocates Fali Nariman and Dushyant Dave, appearing for Verma and an NGO, Common Cause respectively, argued that neither the Centre nor the Central Vigilance Commission (CVC) had any power to take disciplinary action against the CBI Director, a bench headed by Chief Justice Ranjan Gogoi asked: "Will that not make CBI Director virtually untouchable? Is that what Parliament intended?"
"Does the fixed tenure of CBI Director supersede all rules and makes him untouchable?", asked the bench, also comprising Justices S K Kaul and K M Joseph.
These questions cropped up while Solicitor General Tushar Mehta, appearing for the CVC, was justifying the action taken against the CBI chief.
Though Verma, according to the Centre remains the CBI Director, Additional Solicitor General P S Narasimha appearing for the CBI, submitted that there was no need to go to the Selection Committee before taking disciplinary action against Verma.
Nariman and others opposing the Centre's decision took the stand that action against the CBI chief can be taken only by the high-level panel, comprising the Prime Minister, leader of the opposition and the Chief Justice of India, involved in the selection process.
The hearing also saw Asthana's counsel and senior advocate Mukul Rohatgi taking the stance that a direction be passed to take the CVC enquiry report against Verma to its logical conclusion.
Rohatgi, who was Attorney General before K K Venugopal, told the apex court that Asthana 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 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 logiocal end," Rohatgi said.
Senior advocate Kapil Sibal, appearing for Congress leader Mallikarjun Kharge, referred to the legal provisions and said that on these allegations the government could have come to the selection committee and asked the panel to "please transfer Verma".
"Please don't give this handle to the Government to suspend or divest of power any CBI authority. This will affect the independence of the CBI and will render the Vineet Narain judgment toothless," Sibal told the bench.
He argued that a 'transfer' actually amounts to a public casting of doubt on the CBI Director. "That's why legislature has drawn a ring fence around transfer by introducing the prior approval of the panel."
Further, he said CVC's powers of supervision over CBI extend to corruption cases alone and that is the extent of the CVC Act.
When Nariman was asked by the Bench "If the situation arises, can the court appoint a CBI Director, he said: "Yes, in its inherent powers, it can."
When Sibal concluded his arguments, Dave in a lighter vein, said "Mr Sibal says he won't want to exercise this power when he is the Home Minister".Sibal was quick to respond, "As if I am not already in enough troubles.