CBI vs CBI: Now it is up to the Supreme Court

The government finally decided to step into the ongoing war within the Central Bureau of Investigation (CBI) by, effectively, removing the squabbling Nos. 1 and 2 of the agency from the field of play, and appointing an interim chief. The developments, most of which played out in the intervening night of October 23 and October 24, have resulted in a challenge by the CBI director in the Supreme Court, which will now have to weigh in on the issue; raised questions about the process followed; and, predictably, resulted in howls of protest from Opposition parties.

The big question is whether the government has the power to remove the CBI chief. The simple answer to that question is no. The court may be open to the government’s arguments, but the law makes it clear that a CBI director can’t be removed at the government’s discretion. The government may argue that this is a mere divestment of powers, not a removal, pending an investigation, and that it is the Central Vigilance Commission (CVC), which enjoys supervisory powers over the federal investigation agency, that passed the actual order, but these are largely technicalities. It is also not clear whether the CVC itself has the powers to do what it did or , whether, this agency, or for that matter any other, has the powers to ask someone who doesn’t want to go on leave to go on leave.

The CBI director is appointed by a committee comprising the prime minister, the Leader of the Opposition, and the Chief Justice of India, and the director’s argument is that only this committee has the powers to remove him; that he is, by law, guaranteed a two-year term; and that the government’s action (even if routed through the CVC), infringes on the independence of the agency.

It is also not clear whether the court will go into the details of the charges levelled by the director against special director Rakesh Asthana and the latter against the former. That is actually the domain of the CVC and the department of personnel and training, which comes under the Prime Minister’s Office, and it is an issue that should have never been allowed to come to a head. By addressing the issue a few months ago, the government may have avoided a sticky legal challenge.

In an editorial yesterday, when this newspaper asked for the PMO to act and stop the unseemly slight of the agency’s top two officers going at each other using all means at their disposal, it was thinking of an intervention, not surgery. Now it is up to the Supreme Court. The only previous precedent of a similar legal challenge by the chief of an investigative agency involves M K Bezbaruah in the late 1990s. The court ordered the government to reinstate him.