Past orders also aimed at institutional reforms
The collegium that is to select CEC and ECs has the same composition that selects the CBI director, and the top court has once again put in place a mechanism that ensures participation of a non-political functionary – the Chief Justice of India, in the selection process
The Supreme Court judgment on a three-member collegium to appoint the chief election commissioner (CEC) and election commissioner adds to a list of similar reforms that the apex court has ushered in to ascertain the institutional independence of various bodies, including the Central Bureau of Investigation (CBI).
The collegium that is to select CEC and ECs has the same composition that selects the CBI director, and the top court has once again put in place a mechanism that ensures participation of a non-political functionary – the Chief Justice of India, in the selection process.
In its 1996 judgment in the Vineet Narain Case, the Supreme Court did not only order for granting statutory status to the Central Vigilance Commission, it also directed that the Central Vigilance Commissioner shall be appointed by a panel comprising the Prime Minister, Home Minister and the Leader of the Opposition. In this judgment, the court also directed that the CBI director shall have a minimum tenure of two years, leading to an amendment in the law in 2003.
The appointment of the first Lokpal in 2019 was also an outcome of the top court consistently keeping up the pressure on the government every step of the way. The enforcement of the Lokpal Act 2013 remained suspended because the amendments to replace the LoP with the Leader of the single largest Opposition Party remained pending before the Parliament. It was only after a judgment by the top court in 2017 and subsequent proceedings in a contempt case that the government moved swiftly to amend the law and appoint country’s first anti-corruption ombudsman.
While hearing the coal block allocation scam cases in March 2013, the top court denounced CBI as a “caged parrot” and “its master’s voice” after noting that the agency sleuths had shared the draft of a probe report with the then law minister, Ashwani Kumar, before submitting it in the court.
At that time, the bench, led by justice RM Lodha, directed the Union government and the agency chief to put on record proposed measures to make certain the agency and its chief are free from the control of the political executives.
Justice Lodha recalled the top court’s 1997 judgment in the Vineet Narain Case wherein the independence of the CBI chief was linked to the procedure of his appointment and the security of his tenure for not less than two years. The court then held that the CBI director shall be appointed from a panel of officers selected by a committee headed by the Central Vigilance Commissioner with the home secretary and secretary (personnel) as members. The CVC Act was amended in 2003 to provide the CBI director a secured tenure of at least two years in office.
Ater the court’s reproach, the Centre presented before the justice Lodha-led bench in July 2013 a draft proposal to amend the Delhi Special Police Establishment Act, 1946, to change the manner in which the CBI director was appointed.
As the government said the appointment process was being revamped, the court decided to grant it some time, even as it directed for some immediate administrative reforms within the agency to make certain the probe is carried out by its officers without external influences.
In January 2014, the amendment to the DSPE Act was notified to introduce a panel comprising the Prime Minister, the Leader of Opposition, and the CJI for picking the CBI chief. In November 2014, the Act was amended to state that where there is no such LoP, then the Leader of the single largest Opposition party in Lok Sabha will be a part of the panel.
In a raft of judgments, including the Vineet Narain Case and the Prakash Singh Case (2006), the apex court has highlighted the need to insulate officials from the control of the Executive. “The personnel of the enforcement agencies should not now lack the courage and independence to go about their task as they should, even where those to be investigated are prominent and powerful persons,” the court said in the Vineet Narain Case.
The impact of having the CJI as one of the members of the selection committee for CBI became evident in May 2021 when the high-powered selection committee, led by Prime Minister Narendra Modi, dropped the names of two fancied contenders, Rakesh Asthana and YC Modi, both 1984 batch IPS officer, for the post of CBI director.
The then CJI, NV Ramana, mentioned a 2019 Supreme Court ruling on such appointments that made it clear that no officer with less than six months left in retirement should be appointed as a police chief. Both Asthana and Modi, who were believed to be close to the government and had substantial experience of working in CBI, were ruled out alone on this count since they did not have the residual tenure of six months. The panel then zeroed in on a panel of three officers, and later, Subodh Jaiswal was appointed the CBI director.