New Delhi, Dec 6 : The Supreme Court on Thursday reserved its verdict on a plea by Central Bureau of Investigation (CBI) Director Alok Verma and NGO Common Cause challenging the government's decision to divest him of his charges, asking if the government action was "proportionate" to the allegation against him.
The day-long hearing saw the bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph expressing the opinion that it would have been better for the government to consult the Selection Committee before it acted on Verma.
"It is better to consult the Selection Committee than not consulting it. The essence of every government action is what is best in the interest of administration," the Chief Justice observed.
But Solicitor General Tushar Mehta argued: "CVC (Chief Vigilance Commissioner) could not have been a mute spectator to all that was going on. Two top CBI officers instead of doing their work were investigating each other. CVC is answerable to the President, Parliament and the judiciary as well if it had not acted."
While CJI Gogoi suggested that the better course could have been to consult the Selection Committee, Justice Joseph questioned the proportionality of the government action: "You acted against Alok Verma on the basis of the complaint by Rakesh Asthana. There was nothing against him. We are asking if the action was proportionate..."
The hearing saw CJI Gogoi asking senior counsel Fali Nariman: "If necessity arises, can this court appoint a person to act as CBI Director?"
"I think it can in exercise of its inherent powers," said Nariman, who is respresenting Alok Verma.
As Mehta contested Nariman equating divesting Verma of his powers and functions with his transfer, the Chief Justice Gogoi observed: "Mr. Mehta, Fali Nariman equating divesting CBI Director Alok Verma with transfer should not be taken literally. What was happening since July? It was not something that happened overnight. What was the difficulty in consulting the Selection Committee?"
Nariman, too, in the course of his rejoinder arguments, said that the use of word "transfer" to describe the divesting CBI Director of his powers and functions should not be viewed in the context of service jurisprudence of shifting a person from one post to another post.
He said that the use of word "transfer" to describe divesting of Verma of his powers and functions have to be seen in its context.
Mocking at the Centre's argument that Verma continues to be the CBI Director, Nariman said: "You may call me CBI Director. I may put it on my visiting card. I am not CBI Director more than what I am. What are we (referring to Attorney General's arguments) talking about - house, car, pay and perks? I am divested of powers which are invested in another person."
Senior counsel Kapil Sibal appearing for leader of the Congress party in Lok Sabha Malikarjun Kharge said that it was incumbent upon the government to have approached the Selection Committee, place facts before it and had sought its approval for Verma's transfer.
He said that it was only after transferring Verma out of the CBI that the government could have invoked disciplinary proceedings against him and taken consequent action.
Sibal said that any other course would give government unregulated powers to divest CBI Director of his powers and functions.
He said that any other course would jeopardise the independence of the office of CBI Director.
Appearing for CBI officer A.K. Bassi, senior counsel Rajeev Dhavan told the court that the "principle of autonomy" of the investigating agency was at the core of the top court judgment in Vineet Narain case and writ large on the Delhi Special Police Establishment Act.
Bassi was investigating allegations of corruption against Special Director Rakesh Asthana and has now been transferred to Port Blair.
Dhavan said that the power that the government was asserting over the investigating agency, including that of hire and fire, "must yield to the principle of autonomy".
He said that the provision of the Delhi Special Police Establishment Act had to be read in totality and not in pieces as in disjointed reading of the Act, "we will miss the point (principle of autonomy)".
Appearing for the NGO Common Cause, senior counsel Dushyant Dave referred to the position taken by the CVC on the complaint against Asthana by Verma where the Vigilance Commission had said that it could not act on the complaint unless there was proven misconduct.
He said the CVC should have applied same criteria for Verma while dealing with Asthana's complaint against the CBI Director.
"CVC has to be scrupulously objective. It can't take different positions in different cases," Dave told the bench.