The law ministry opposed a controversial government move to dilute the CBI director's powers to decide on prosecutions but fell in line after a high-level meeting, documents accessed by HT show.
Senior civil servants, including an official from the prime minister's office, attended the December 1 meeting, just three days after the law ministry disagreed with a department of personnel and training bid that gave the attorney general the last word on CBI prosecutions.
The government proposed curtailing the agency director's powers in a bill in Parliament last December but was forced by the Opposition to send it to a standing committee, which is due to submit its report by the end of June.
The bill took away the CBI director's control over the agency's Director of Prosecution (DoP) and stipulated the attorney general's advice would have to be sought in case of a difference of opinion. Significantly, it added "such advice shall be binding" on the Central Bureau of Investigation chief.
It was this crucial change that the law ministry opposed, saying the provision may not pass the judicial test, citing a Supreme Court verdict of 2000. In the case, a two-judge SC bench ruled only a police officer or his superior, could decide if an accused should be sent on trial. It pointed that they were under no legal obligation to seek the public prosecutor's views under the code of criminal procedure.
"In view of the above, it may not be prudent to adopt a formation proposed (sic)… as the same may not withstand judicial scrutiny," deputy legal adviser RS Verma said in his 28 November note approved by legislative department secretary Sanjay Singh.
Instead, the law ministry advised the CBI director's decision, taken after keeping the AG's opinion in consideration, should be final. This formulation retained the agency's powers rather than be bound by the view of the attorney general's, who may echo the government's stand.
The DoPT - that was drafting Lokpal & Lokayuktas and Other Related Law (Amendment) Bill 2014 - proposed to report the difference of opinion to the Cabinet and ask ministers to take the final call.
But the cabinet secretariat wanted the differences reconciled.
At the December 1 meeting attended by secretaries of the departments of law, legislative, personnel and a PMO official, the panel sought refuge under SC judgments in the 1997 Jain hawala diary case and the 1996 Bihar fodder scam case. The legislative department had also referred to both cases.
In view of the spirit of the two verdicts, it was "unanimously decided" to stick to giving the A-G the last word over the CBI director.
In the first, the top court called for an impartial agency for supervising prosecutions launched by the CBI and enforcement directorate. In the second case, the SC directed the attorney general's views would be final in case of difference of opinion amongst CBI officers on prosecuting accused in the Patna high court-monitored fodder scam probe.