Supreme Court Upholds Interim CBI Director Appointment: Common Cause vs. Union of India (2019)

Introduction

Date of the Judgment: 19 February 2019
Citation: [Not Available in Source]
Judges: Arun Mishra, J., Navin Sinha, J. (Bench of 2 judges)

Can the government appoint an interim director of the Central Bureau of Investigation (CBI) without following the formal selection process? The Supreme Court of India recently addressed this question in a case concerning the appointment of an interim CBI Director and the transparency of the appointment process. The court examined whether the appointment was legal and if the due process was followed as per the Delhi Special Police Establishment Act, 1946.

Case Background

The case was initiated by a writ petition filed under Article 32 of the Constitution of India by Common Cause, a registered society, and an RTI activist, seeking directives regarding the appointment of a regular CBI Director. The petitioners challenged the appointment of Mr. Nageshwar Rao as interim Director of CBI, alleging that the appointment was arbitrary and illegal, bypassing the procedure laid down in Section 4A of the Delhi Special Police Establishment Act, 1946.

The petitioners also sought transparency in the shortlisting and selection process for the CBI Director, claiming that the government failed to provide information requested under the Right to Information Act, 2005, regarding the selection process. The petitioners argued that the government should disclose the criteria used for shortlisting candidates and the minutes of the meetings of the selection committee.

The petitioners highlighted the importance of the CBI as a premier investigation agency and the necessity of maintaining its functional autonomy. They referred to the Supreme Court’s earlier directions in Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226, which emphasized the need to insulate the CBI from extraneous influence and ensure a fixed tenure for the CBI Director.

Timeline

Course of Proceedings

The initial appointment of Mr. Nageshwar Rao as interim CBI Director on 23.10.2018 was challenged in the Supreme Court in W.P. [C] No.1315/2018. The Supreme Court quashed the order regarding the appointment of Mr. Nageshwar Rao on 8.1.2019, observing that the appointment was not in accordance with the provisions of the Delhi Special Police Establishment Act, 1946.

Following this, the government again appointed Mr. Nageshwar Rao as interim Director on 10.1.2019, which led to the filing of the present writ petition, challenging the legality of this second appointment and seeking transparency in the process. The petitioners argued that the second appointment was also illegal as it bypassed the High Powered Selection Committee.

Legal Framework

The core legal framework for this case is Section 4A of the Delhi Special Police Establishment Act, 1946, which outlines the procedure for the appointment of the Director of CBI.

Section 4A of the Delhi Special Police Establishment Act, 1946 states:

“4A. Committee for appointment of Director –
(1) The Central Government shall appoint the Director on the recommendation of the Committee consisting of –
(a) the Prime Minister – Chairperson.
(b) the Leader of Opposition recognised as such in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in that House – Member
(c) the Chief Justice of India or Judge of the Supreme Court nominated by him – Member.
(2) No appointment of a Director shall be invalid merely by reason of any vacancy or absence of a Member in the Committee.
(3) The Committee shall recommend a panel of officers –
(a) on the basis of seniority, integrity, and experience in the investigation of anti-corruption cases; and
(b) chosen from amongst officers belonging to the Indian Police Service constituted under the All-India Services Act, 1951 (61 of 1951) for being considered for appointment as the Director.”

The Supreme Court, in an earlier case, clarified that for the purpose of Section 4A of the Delhi Special Police Establishment Act, 1946, seniority means all IPS officers from the seniormost four batches in service on the date of retirement of the CBI Director are eligible for consideration, irrespective of their empanelment.

Arguments

The petitioners argued that the appointment of Mr. Nageshwar Rao as interim Director was illegal because it bypassed the High Powered Selection Committee (HPSC) constituted under Section 4A of the Delhi Special Police Establishment Act, 1946. They contended that the government unilaterally made the interim appointment without the recommendation of the selection committee, violating the established procedure.

The petitioners further argued that there was a lack of transparency in the appointment process. They submitted that despite the Supreme Court’s directions in various cases to ensure transparency in the appointment process of independent bodies, the government failed to disclose information regarding the shortlisting of candidates and the minutes of the selection committee meetings.

The petitioners also relied on the Supreme Court’s judgment in W.P. [C] No.1315/2018, which had quashed the earlier appointment of Mr. Nageshwar Rao, and argued that the government once again invoked the same quashed order to make the subsequent appointment, which was illegal.

The Attorney General for India, representing the Union of India, submitted that the High Powered Selection Committee had, in fact, authorized the government to appoint an interim Director in its meeting held on 9th/10th January 2019. He stated that the committee had resolved to transfer Mr. Alok Kumar Verma and authorized the government to post a suitable officer to look after the duties of the Director, CBI, until the appointment of a new Director.

The Attorney General also contended that the government had provided the necessary information to the petitioners in response to their RTI applications, and there was no violation of transparency norms.

The innovativeness of the argument by the petitioners was that they highlighted the lack of transparency and the bypassing of the High Powered Selection Committee, despite previous court orders emphasizing the need for transparency and adherence to the procedure under the Delhi Special Police Establishment Act, 1946.

Issues Framed by the Supreme Court

• Whether the appointment of Mr. Nageshwar Rao as interim Director of CBI was legal and valid.
• Whether the government followed due procedure in the appointment of the interim Director.
• Whether the government was transparent in the process of selection and appointment of the Director, CBI.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court dismissed the writ petition, holding that the appointment of Mr. Nageshwar Rao as interim Director of CBI was not illegal. The Court found that the High Powered Selection Committee had authorized the government to appoint an interim Director, and thus, the appointment was not in violation of Section 4A of the Delhi Special Police Establishment Act, 1946.

The Court also noted that the government had provided adequate replies to the RTI applications filed by the petitioners, and the petitioners had not pursued the matter further by filing appeals.

The Court observed that since the regular Director had been appointed, the main prayer of the petitioner stood satisfied. The Court also mentioned that if the due process had not been followed in the appointment, it was open to any incumbent to question the appointment in accordance with law.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the High Powered Selection Committee (HPSC) had authorized the government to appoint an interim Director. The Court noted that the HPSC had passed a resolution to this effect, which was presented by the Attorney General during the hearing. This authorization was crucial in the Court’s view, as it addressed the main issue raised by the petitioners regarding the legality of the interim appointment. The Court also considered that the government had responded to the RTI applications, and the petitioners had not pursued the matter further through appeals. The Court emphasized that since the regular Director had been appointed, the main prayer of the petitioner stood satisfied.

The Court’s reasoning was primarily based on the factual aspect of the case, specifically the resolution passed by the High Powered Selection Committee authorizing the interim appointment. The legal aspect, concerning the interpretation of Section 4A of the Delhi Special Police Establishment Act, 1946, and the transparency requirements, played a secondary role in the Court’s decision.

The Court considered the argument that the government had bypassed the High Powered Selection Committee, but it was rejected based on the resolution passed by the committee. The Court also considered the argument that the government had not been transparent in the selection process, but it was also rejected based on the responses to the RTI applications.

The Court did not consider any alternative interpretations of Section 4A of the Delhi Special Police Establishment Act, 1946, as it was satisfied that the procedure had been followed based on the resolution passed by the High Powered Selection Committee.

The court stated that, “It is clear from the resolution passed by the Committee on 9/10th January, 2019 that the appointment of interim Director had been authorised by the Committee under section 4A. Thus, it cannot be said to be unauthorised and illegal in any manner whatsoever.”

The court also stated that, “With respect to RTI application that was filed by petitioner No.2, it had been replied on 19.12.2018.”

The court also stated that, “Petitioner No.2 was advised by the aforesaid communication in case she was aggrieved, to take recourse to appeal before the appellate authority under the RTI Act. It appears that the petitioner has not filed any appeal/s. In view of letters, we find no ground to interfere in the matter on the said ground too.”

Key Takeaways

• The appointment of an interim CBI Director is valid if authorized by the High Powered Selection Committee constituted under Section 4A of the Delhi Special Police Establishment Act, 1946.
• The government must respond to RTI requests regarding the appointment process, and petitioners must pursue appeals if they are not satisfied with the response.
• The Supreme Court emphasized that if the due process has not been followed in the appointment, it is open to any incumbent to question the appointment in accordance with law.

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 an interim CBI Director is valid if authorized by the High Powered Selection Committee constituted under Section 4A of the Delhi Special Police Establishment Act, 1946. This reinforces the importance of procedural compliance in the appointment of key government officials. There is no change in the previous position of law, but the judgment clarifies the interpretation of Section 4A of the Delhi Special Police Establishment Act, 1946, in the context of interim appointments.

Conclusion

The Supreme Court dismissed the writ petition, upholding the appointment of Mr. Nageshwar Rao as interim Director of CBI. The Court found that the appointment was authorized by the High Powered Selection Committee and that the government had responded adequately to the RTI applications. The Court emphasized that the main prayer of the petitioner stood satisfied with the appointment of the regular Director.