Common Cause moves Supreme Court for appointment of CBI Director

The NGO Common Cause has moved the Supreme Court of India seeking the appointment of a regular CBI Director and quashing the appointment of Rakesh Asthana as the investigating agency’s acting Director.

The NGO has alleged violation of Articles 14 and 21 of the Constitution due to the failure of the Central government to appoint a CBI director.

In a petition drawn by advocate Pranav Sachdeva and filed through advocate Prashant Bhushan the petitioner has set out the importance of CBI as the “premier investigating agency of the country”.

Regarding the CBI Director’s role, the petition states the following:

“The Director of the CBI is the final authority in the organization. He supervises all the work in the CBI and is responsible for constitution of investigating teams for probing cases.

Hence, this Hon’ble Court and later on 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 then traces the history of regarding the manner of appointment of CBI Director.

“The Delhi Special Police Establishment (DSPE) Act, 1946 was amended in 2003 vide the Central Vigilance Commission (CVC) Act, 2003 to state that the Director CBI shall be appointed by the Central Government on the recommendations of the Central Vigilance Commissioner, the Vigilance Commissioners and two Secretaries to the Government of India.”

Subsequently, this mechanism was found insufficient to insulate the CBI Director and hence, the Act was further amended by the Lokpal and Lokayuktas Act of 2013.

After the amendment, the Act now provides that,

“CBI Director shall be appointed by the Central Government on the recommendations of a committee comprising a) the Prime Minister (Chairperson), b) the Leader of Opposition (Member), and c) the Chief Justice of India or any Judge of Supreme Court nominated by him (Member). The DSPE Act was further amended on 29.11.2014 to include the Leader of the single largest Opposition party in the said committee when there is no recognized Leader of Opposition.

Thus, the appointment of the CBI Director has to be made on the recommendation of the Prime Minister, leader of the single largest Opposition party and the Chief Justice of India (or any Judge of Supreme Court nominated by CJI).”

The petitioner has stated that previous Director, Anil Sinha’s tenure at the helm of CBI came to an end on December 2, 2016 and the Central government should have called for a meeting of the selection committee to appoint the new director so as to ensure a smooth transition.

The petitioner has alleged that the Centre did not do so even though it was fully aware that Sinha was going to demit the office of CBI Director on December 2.

This deliberate dereliction was in complete violation of the DSPE Act, 1946, as amended by the Lokpal Act, 2013.

It has then alleged that the appointment of Asthana as the acting Director is “completely mala fide, arbitrary and illegal”.

“Significantly, Respondent No. 2 (Rakesh Asthana) had earlier held several important positions in Gujarat Police, e.g. Commissioner of Police, Surat City; Commissioner of Police, Vadodara City; Joint Commissioner of Police, Ahmedabad City; and IGP, Vadodara Range.

He was part of SIT set up by the Gujarat Government to probe the Godhra train burning case.”

The petitioner has also made some scathing allegations against the removal of RK Dutta from the CBI. Dutta, as per the petitioner, was second-in-command of the CBI and would have been a natural choice for an acting Director.

“The Government then prematurely curtailed the tenure of and transferred Mr. R K Dutta, Special Director, CBI, to the Ministry of Home Affairs. This was done on 30.11.2016, i.e. just two days before the incumbent CBI Director was slated to demit office.

A post of Special Secretary was specially created in the Ministry to accommodate Mr. Dutta by upgrading the post of a Joint Secretary, which is two levels below the Special Secretary, since the Government clearly wanted him out of the CBI. Mr. Dutta was second in command to the CBI Director and would have been a natural choice in case an interim or acting CBI Director was to be appointed.”

The petitioner has, therefore, prayed for a direction to be issued to the Central government to appoint a Director to the CBI, and to quash the appointment of Rakseh Asthana as acting Director.