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View: The role of CJI in CBI director's selection needs more clarity

The hallowed office of the CJI has got caught in taking sides in a web of politics and intrigue.

, ET Bureau|
Updated: Jan 28, 2019, 06.24 AM IST
If the CJI has to play a role in the selection of the CBI director, it’s important to decide on the nature of the institutional relationship between the two offices.
The crisis in the Central Bureau of Investigation (CBI) has inadvertently exposed a major contradiction in the selection process of the director. If not addressed at the earliest, this could adversely impact the functioning of the Chief Justice of India (CJI) in CBI matters — and, by extension, even the Supreme Court.

The problem is conflict of interest. And this has come to the fore due to the recent in-fighting between the top two CBI officers, a matter that reached the apex court. While it appears that the specific issue is now behind us, the tangle left behind, and its legal consequences, will be felt most by the Supreme Court and its chief — largely because Alok Verma was only the second CBI director chosen by a committee comprising the CJI.

How? While the focus in the CBI crisis remained on the fight between Verma and his deputy Rakesh Asthana, adequate attention hasn’t been given to the fact that there was a breakdown of both communication and trust between the chief vigilance commissioner (CVC) and the CBI director. And unlike the battle between two individuals, this was an institutional breakdown, where the CBI director eventually alleged that the CVC was biased against him.

This conflict was also unprecedented, as it challenged the superintendence role of the CVC as inspired from the 1997 Vineet Narain judgment in which the Supreme Court dealt with the matter concerning the investigation of corruption allegations against high-ranking public officials. Unlike the rest of the CBI hierarchy, Verma was not selected by a panel comprising the CVC. In fact, the presence of the CJI elevated the stature of the panel selecting the CBI director. That, in itself, raised the question of parity between the CVC and CBI director, an issue that had not arisen until now.

Eventually, this mechanism failed. The CBI director was sent on leave and he approached the Supreme Court for justice. Now that the office of the CJI was involved in the selection process, the matter probably had to be heard only by the CJI’s bench on the judicial side.

Under Scanner
Chief Justice Ranjan Gogoi somewhat restored the CVC’s primacy by asking the vigilance body to complete its probe under judicial supervision. However, this meant that the selection of this high-powered panel had come under the scanner. The final inquiry report only made matters worse.

But given that the CJI was part of the selection panel, an adverse inquiry report made matters very complicated. So, the CJI did the best in a tricky situation — he upheld the role of the selection panel by referring the matter back to the panel, but opted out of going to the committee meeting himself. Instead, he nominated Justice AK Sikri, who agreed with GoI’s view to sack Verma.

The problem still didn’t go away. A petition challenging the appointment to current director L Nageshwara Rao again traces its origin to the selection and removal of Verma. Result: the CJI recused himself, as did Sikri, presumably because he went to the panel meeting that decided on the CVC’s findings against Verma.

Selecting Directors
This is further complicated by the fact that the CJI has had a key role in selecting the two directors finalised by this high-powered panel. The leader of Opposition even opposed Verma’s selection, which went through only after the then CJI, JS Khehar, agreed on his name with GoI. The same happened during Verma’s removal, when the casting vote actually came from Sikri.

Clearly, the hallowed office of the CJI has got caught in taking sides in a web of politics and intrigue, even when the CJI’s office has nothing to do with the CBI director’s selection.

The CJI, until the Lokpal Act kicked in, was usually not part of any such selection that included constitutional and statutory posts. This was so that if any case of mala fide, injustice or interference is brought before the Supreme Court, he can apply his mind freely and without any conflict of interest. This may not always be the case now when it comes to the CBI.

There has also been perceptional damage. The public message is that the CBI director has the confidence and the approval of the CJI. But in reality, neither the CJI nor his office has any role in the way the CBI director functions. That’s because investigation is exclusively a police function in India.

This, actually, is a more fundamental institutional question. France, for instance, follows a more inquisitorial system where judges, at times, are involved in interrogation and investigation processes. In India, judges decide in an open court debate between prosecution and defence, based on who presents the more compelling evidence.

Therefore, if the CJI has to play a role in the selection of the CBI director, it’s important to decide on the nature of the institutional relationship between the two offices. Which then leans towards the French system, but at least provides the CJI with a better basis to hold the CBI accountable.

This question is important because this case has put the office of the CJI in a spot, leaving it open to deal with issues of conflict of interest, but also tied up in a way that makes it difficult to proactively intervene or hold the agency accountable even by way of a judicial order.

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