Centre’s reply sought on appointment of CBI director
Advocate Prashant Bhushan appearing for NGO Common Cause asked the court to pass an order that an interim CBI director cannot be appointed as such a post is not contemplated under the Delhi Special Police Establishment Act, 1946 that governs CBI
The Supreme Court on Wednesday sought the Centre’s opinion on allowing the director of Central Bureau of Investigation to continue in office after retirement if his replacement isn’t recommended by a high-powered committee chaired by the Prime Minister in time.
The suggestion came while hearing a public interest litigation (PIL) filed by NGO Common Cause that opposed the decision of the Centre to appoint an interim CBI director on February 3 this year, a day after the post fell vacant following the superannuation of the then CBI director Rishi Kumar Shukla. A regular CBI director was appointed only in May when the 1985-batch IPS officer Subodh Kumar Jaiswal was recommended to the post by the HPC having PM Narendra Modi, Chief Justice of India NV Ramana and Leader of Congress in Lok Sabha Adhir Ranjan Chowdhury.
Although the ground for the petition no longer remained, advocate Prashant Bhushan appearing for Common Cause asked the court to pass an order that an interim CBI director cannot be appointed as such a post is not contemplated under the Delhi Special Police Establishment Act, 1946 that governs CBI. “This is the third time an acting director has been appointed. It was previously done in 2016 and in 2019. On both occasions, petitions were filed but this can’t happen again and again,” Bhushan said.
Attorney general KK Venugopal appeared for the Centre and said that such an order cannot be passed as there are “exceptional circumstances” when the HPC cannot meet. “Each member of the HPC holds a constitutional post and are concerned with important affairs of the state,” Venugopal said.
Bhushan suggested that in such a case there is an option to continue with the existing director. The bench of justices L Nageswara Rao and BR Gavai found this suggestion favourable and asked the AG, “Do you accept this suggestion?” Venugopal sought time to seek instructions. The court posted the matter for Monday.
Bhushan argued that the post of CBI director fell vacant on February 2 and the process to select his successor should have begun at least two months before. He cited the Prakash Singh judgment of the Supreme Court in 2006 which secured a minimum tenure for directors general of Police (DGPs) and required the state to send a panel of names to Union Public Service Commission at least two months in advance of the impending vacancy.
The AG said that the suggestion about having a CBI director selected in advance is reasonable but pointed out practical difficulties faced by the Centre. “The meeting of the HPC could not be held as a letter was received from Adhir Ranjan Chowdhury dated April 18, 2021, informing that he won’t be available till May 2. If the HPC cannot meet, we have to appoint an acting director. We will produce material to show why acting directors came to be appointed.”
The bench agreed to consider this limited issue on the next date and allowed AG to produce the material.
The petition by Common Cause had said, “The Director of the CBI is the final authority in the organization. He supervises all the work in the CBI and is responsible for the constitution of investigating teams for probing cases. Hence, this Court and later even Parliament have made determined efforts to enhance the functional autonomy of the CBI Director and limit the extent of executive discretion in the matter of appointment of this key functionary.”
The petition highlighted the importance of having an independent mechanism to appoint the CBI head since the agency probes cases involving rampant corruption in high places across the country. “The manifest unwillingness of the government to institute a transparent and accountable system to ensure that the culprits are punished seriously impairs the right of the people to live in a corruption and crime-free society which violates Articles 14 (right to equality) and 21 (right to life and liberty) of the citizens,” the petition stated.
