The Devil In Detail: A Closer Look, A Mischievous Addition In The Notification Appointing New CBI Chief

In a mischievous addition to the notification appointing Subodh Kumar Jaiswal as CBI Chief, the Centre has reserved the right to remove Subodh Kumar Jaiswal before his term ends.

Subodh Kumar Jaiswal, a 1985 batch IPS officer from the Maharashtra cadre was appointed as the new chief of the Central Bureau of Investigation (CBI) last week. The decision of his appointment was made by the high-powered committee comprising PM Narendra Modi, CJI N V Ramana and Congress leader in Lok Sabha, Adhir Ranjan Chowdhary.

An analysis and a closer look at the notification issued by the government about Jaiswal’s appointment by The Wire throws up an interesting picture.

The notification released by the secretariat of the Appointments Committee of the Cabinet (ACC), Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on May 25 appointing Subodh Kumar Jaiswal as director of the CBI. The notification said the ACC, based on the panel recommended by the committee, had:

“approved the appointment of Shri Subodh Kumar Jaiswal, IPS (MH:1985) as director, Central Bureau of Investigation (CBI) for a period of two years from the date of assumption of charge of the office or until further orders whichever is earlier (emphasis added) ”.

However, the text in the notification of his predecessor, Rishi Kumar Shukla’s, issued in 2019, of appointment is slightly different.

“The Appointments Committee of the Cabinet has, based on the panel recommended by the Committee constituted as per Section 4A(1) of the Delhi Special Police Establishment Act, 1946, approved the appointment of Shri Rishi Kumar Shukla, IPS (MP: 1983) as Director, Central Bureau of Investigation (CBI) vice Shri Alok Kumar Verma, IPS (AGMU:1979) for a period of two years from the date of assumption of charge of the office”. read the 2019 notification.

Two minor yet significant differences in the text in both cases pop up. First, is the acknowledgment of the role of the selection committee constituted under section 4A(1) of the Delhi Special Police Establishment (DSPE) Act, 1946 in the latter. In Jaiswal’s appointment it does not refer to the relevant provision in the DSPE Act but ambiguously refers it as the “panel recommended by the committee”.

Where the suspicion on the government grows is by adding the words “or until further orders whichever is earlier” immediately after giving Jaiswal a tenure of two years from the date of his assumption of office. It appears to reserve for itself the power to terminate his appointment before he completes the term.

Also Read: How Modi’s Blue-Eyed Boys, Despite Being Front-Runners, Lost CBI Chief Race?

Validity Of This Addition, Legal Precedents

The Supreme Court, in 2 judgments (Vineet Narain case and Alok Verma Case) has relied on the clear legislative intent in the Central Vigilance Commission (CVC) Act, 2003 to ensure complete autonomy of the office of the CBI director from external influences and to uphold the integrity and independence of the institution of the CBI.

Section 4B(2) of the DSPE Act states that the CBI director shall not be transferred except with the previous consent of the High Powered Committee. Section 4B, including sub-section (2) thereof, of the DSPE Act was brought in by the CVC Act.

In the 2019 Alok Verma case, the Supreme Court held that if the legislative intent were to confer in any authority of the state a power to take interim measures against the CBI director, thereby affecting his functioning, surely the legislation would have contained enabling provisions to that effect and consequently would have been worded differently.

“In a situation where such interference may at all be called for, public interest must be writ large against the backdrop of the necessity. The relevance and adequacy of the reasons giving rise to such a compelling necessity can only be tested by the opinion of the committee constituted under Section 4A(1) of the DSPE Act in whom the power to make recommendations for appointment of the Director has been vested by parliament.”

SUPREME COURT IN 2019

In Alok Verma, the Supreme Court took note of the fact that parliament amended the DSPE Act in 2014 to provide for the three-member selection committee, comprising the PM, the CJI, and the leader of the opposition. The court also recognized the fact that parliament intended to keep the office of the CBI director distinct from the offices of director general of police in the states, and that of the CVC at the Centre. The court emphasized that the law dealing with the CBI director did not provide for his removal prior to his completing the two-year tenure, whereas in the case of the other offices such as DGPs and the CVC, a provision for removal before the completion of their tenures was enacted.

“Such intendment, in our considered view, would require all Authorities to keep away from intermingling or interfering in the functioning of the Director,” the Supreme Court bench in Alok Verma held.

Thus, the law clearly defines that a CBI’s director cannot be curtailed before the existing two years and that in the case of a “transfer”, prior approval of the high-powered committee has to be sought. The government’s sly addition of “until further orders” in Jaiswal’s appointment notification raises some eyebrows over its intention to interfere meddle with the CBI director’s tenure, contrary to the clearly worded Supreme Court judgment as far as the autonomy of the institution is concerned.

The notification on Jaiswal appointment also raises the question of whether the government, hurt by the CJI N.V. Ramana’s citing of the 2019 order of the Supreme Court to eliminate its favorites in the race for the post of the director, has hit back by insisting that it has the power to terminate Jaiswal, notwithstanding what the law says.