Supreme Court Upholds Appointment of Special Director CBI: Common Cause vs. Union of India (2017)

Introduction

Can an appointment to a high-ranking position in a premier investigative agency be challenged based on allegations and procedural concerns? The Supreme Court of India addressed this question in Common Cause vs. Union of India (2017) INSC 1001. This case examines the validity of the appointment of the Special Director of the Central Bureau of Investigation (CBI). The petitioner questioned the legality of the appointment, citing alleged irregularities and a lack of institutional integrity. The judgment was delivered by a two-judge bench comprising Justice R.K. Agrawal and Justice Abhay Manohar Sapre.

Case Background

The petitioner, Common Cause, a registered society, filed a Public Interest Litigation (PIL) challenging the appointment of Shri Rakesh Asthana as the Special Director of the CBI. The petitioner argued that the appointment was illegal, arbitrary, and mala fide. They also contended that it violated principles of institutional integrity. The petitioner cited news reports and seized documents to support their claims of impropriety. The appointment order was issued by the Appointments Committee of the Cabinet (ACC) on 22.10.2017.

The petitioner alleged that the Selection Committee did not make a decision regarding Shri Rakesh Asthana’s appointment in its meeting on 21.10.2017. Additionally, the petitioner pointed to diaries and papers seized from Sterling Biotech and Sandesara Group of Companies, where Shri Asthana’s name appeared. They also noted an FIR filed by the CBI that mentioned “other unknown public servants,” which they argued could include Shri Asthana.

Timeline

Legal Framework

The appointment of the Special Director of the CBI is governed by the Delhi Special Police Establishment Act, 1946 (DSPE Act). The DSPE Act was amended in 2003 by the Central Vigilance Commission Act, 2003. This amendment provided that the Director of CBI and officers above the rank of Superintendent of Police would be appointed by the Central Government. The appointments would be based on the recommendations of the Central Vigilance Commissioner, the Vigilance Commissioners, and two Secretaries to the Government of India.

The DSPE Act was further amended by the Lokpal and Lokayuktas Act, 2013. This amendment introduced Section 4C, which outlines the procedure for appointing officers to the posts of Superintendent of Police and above, excluding the Director. Section 4C of the DSPE Act states:

“4C. Appointment for posts of Superintendent of Police and above extension and curtailment of their tenure, etc. — (1)The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment, on the recommendation of a Committee consisting of:- a) The Central Vigilance Commissioner – Chairperson b) Vigilance Commissioners – Members c) Secretary to the Government of India in charge of the Ministry of Home – Member, and d) Secretary to the Government of India in charge of the Department of Personnel – Member Provided that the Committee shall consult the Director before submitting its recommendation to the Central Government. (2) On receipt of the recommendation under sub-Section (1), the Central Government shall pass such orders as it thinks fit to give effect to the said recommendation.”

Arguments

The petitioner, Common Cause, argued that the appointment of Shri Rakesh Asthana was illegal. They contended that the Selection Committee did not properly consider the allegations against him. The petitioner highlighted the following points:

• Violation of Procedure: The Selection Committee did not make a decision regarding Shri Asthana’s appointment in its meeting on 21.10.2017. The order issued by the ACC on 22.10.2017 was therefore illegal.
• Allegations of Impropriety: Shri Asthana’s name appeared in seized diaries and papers from Sterling Biotech and Sandesara Group of Companies. The CBI’s FIR also mentioned “other unknown public servants,” which could include Shri Asthana.
• Lack of Consultation: The consultation with the Director, CBI was not effective. The views of the consulted person should be given primacy. They relied on Supreme Court Advocates-on-Record Association and Others vs. Union of India (1993) 4 SCC 441 for this argument.
• Institutional Integrity: The decision to recommend Shri Asthana was not an informed decision. The institution is more important than an individual. They relied on Centre for PIL and Another vs. Union of India and Another (2011) 4 SCC 1 for this argument.
• Conflict of Interest: Shri Asthana’s son had worked for Sterling Biotech, and his daughter’s wedding reception was held at the farmhouse of Sandesara Group of Companies. This raised concerns about conflict of interest.

The Union of India, represented by the Attorney General, argued that the appointment was valid and followed due procedure. They submitted the following:

• Proper Procedure Followed: The Selection Committee did consider the confidential letter submitted by the Director, CBI. They discussed the matter in the meeting. The Committee gave reasons for not accepting the contents of the letter.
• CBI’s Proposal: The CBI itself had proposed Shri Rakesh Asthana as a suitable candidate for the post of Special Director on 06.07.2017.
• Experience and Supervision: Shri Asthana was already holding the post of Additional Director, CBI. He was supervising several important zones and cases.
• No Misconduct Found: The Vigilance Commission does not consider complaints received just before appointments or promotions unless they are proven misconducts.

Submissions of the Parties

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the appointment of Shri Rakesh Asthana as Special Director, CBI was legal and valid.
2. Whether the Selection Committee followed the correct procedure in recommending Shri Asthana for the post.
3. Whether the allegations against Shri Asthana were properly considered by the Selection Committee.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court analyzed the submissions made by both parties. The court also examined the relevant authorities.

The Court also analyzed the authorities relied upon by the parties:

• Vineet Narain and Others vs. Union of India and Another (1998) 1 SCC 226: The Court referred to this case to understand the procedure for appointment of CBI officials.
• Supreme Court Advocates-on-Record Association and Others vs. Union of India (1993) 4 SCC 441: The Court distinguished this case. It stated that the consultation was a process of discussion and not primacy in cases where a Selection Committee has been constituted.
• Centre for PIL and Another vs. Union of India and Another (2011) 4 SCC 1: The Court distinguished this case and stated that the Selection Committee had taken an informed decision.
• Mahesh Chandra Gupta vs. Union of India and Others (2009) 8 SCC 273: The Court held that the content of consultation is beyond judicial review.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors. The Court emphasized that the Selection Committee had followed the due process. The committee had considered the Director, CBI’s note and had discussed it with him. The Court also noted that the CBI had itself proposed Shri Asthana for the post. The Court also highlighted that the allegations against Shri Asthana were not substantiated. The Court also noted that the Vigilance Commission does not take cognizance of complaints received just on the verge of appointments or promotions unless they are proven misconducts. The Court also emphasized that the consultation process was a process of discussion and not primacy.

The ratio of fact to law in the Supreme Court’s decision is as follows:

Logical Reasoning

Key Takeaways

The Supreme Court’s judgment has the following implications:

• The appointment of the Special Director of the CBI was upheld.
• The Selection Committee’s decision-making process was deemed valid.
• The Court emphasized that the consultation process with the Director, CBI was a process of discussion and not primacy.
• The Court highlighted that unsubstantiated allegations cannot be a basis for challenging appointments.
• The Court reiterated the importance of institutional integrity and the need for informed decision-making in appointments.

Directions

No specific directions were given by the Supreme Court in this case.

Development of Law

The ratio decidendi of the case is that the appointment of the Special Director of the CBI was valid. The Court also clarified that the consultation process with the Director, CBI is a process of discussion and not primacy. This case clarifies the scope of judicial review in appointment matters. The court also reiterated that unsubstantiated allegations cannot be a basis for challenging appointments. There is no change in the previous positions of law.

Conclusion

The Supreme Court dismissed the writ petition, upholding the appointment of Shri Rakesh Asthana as the Special Director of the CBI. The Court found that the Selection Committee had followed the correct procedure and that the allegations against Shri Asthana were not substantiated. The Court emphasized that the consultation process with the Director, CBI was a process of discussion and not primacy.