The Supreme Court has made it mandatory in at least three significant orders that an officer with less than six months of residual service left shall not be considered for the post of Director of the Central Bureau of Investigation (CBI); and, once appointed, he should have a two-year term, irrespective of actual superannuation date.
The Centre cleverly ignored the first part of the mandate and tried to use the second part to its benefit. Had this attempt succeeded, an officer having six days of residual tenure would have been become CBI Director to serve 714 days as a much-obliged, indebted, or loyal servant of rulers rather than of the rule of law.
But this was effectively scuttled by Chief Justice of India (CJI) NV Ramana, who attended the high-power body meeting of Prime Minister Narendra Modi, the CJI and Leader of Opposition in the Lok Sabha, Adhir Ranjan Chowdhury.
The CJI’s insistence on the minimum service rule prevented at least 10 persons with less than six months of balance service from joining the candidates list. Interestingly, one of them had service just till May-end.
‘No’ to acting director
The Supreme Court also categorically gave a direction against the appointment of an acting Director, who might act according to the directions of rulers.
After the retirement of Rishi Kumar Shukla, the CBI Director’s chair has been vacant, since February 2. The Centre appointed Praveen Sinha as an interim/acting chief until further orders.
Control over ‘independent’ CBI became crucial for those in power to continue to be in power. The recent developments in West Bengal and the role of the CBI in the relations between Delhi and Kolkata stand as the latest example of this ‘control’ — especially under the acting Director and during state elections with the Central ruling party having a huge political interest.
Media reports revealed that National Investigation Agency (NIA) Chief YC Modi, who retires on May 31, and Border Security Force (BSF) Director General Rakesh Asthana, about to retire on July 31, besides Indo-Tibetan Border Police (ITBP) chief SS Deswal, could not be considered because of the CJI’s objection. It was also reported that these officers were the government’s favourites for the position.
The very fact that an officer who retires in a week, and nine others retiring in less than six months, were shortlisted, speaks volumes about the intention. It is an attempt to defy the Supreme Court mandate.
CJI Ramana insisted that the rule of law laid down in three judgments of the Supreme Court — in the Prakash Singh, Vineet Narayan and C Dinakaran cases — be followed. In these cases, the court had said only officers left with six months or more of service should be considered for the top post.
A 170-year-old British law — the Police Act of 1861 — governs Indian police forces, with an objective of making them a more efficient instrument for the prevention and detection of crime.
In addition to police departments in each state, the CBI has been instituted by another pre-Independence, British made law — the Delhi Special Police Establishment Act, 1946. The rules related to the appointment of its Director are guided by Section 4(A) of the Delhi Special Police Establishment Act, 1946. And this section is amended by the Lokpal and Lokayuktas Act, 2013.
The Second Report of the National Police Commission, in August 1979, examined the issues of political interference in policing and its disastrous consequences. It recommended that:
- Investigative functions of the police be made completely independent of any extraneous influences
- Chief of the state police force be selected from a panel of three IPS officers of that state cadre
- The panel itself be put together by a committee headed by the Chairman of the UPSC
- The police chief thus selected have a fixed tenure
Several public interest litigation (PIL) cases were filed to secure independence for police and CBI chiefs, which the Supreme Court considered seriously. In a 1996 PIL, Prakash Singh attributed the abuse of power and inefficient functioning of the police to the archaic structure and organisation per the Police Act, 1861.
The Supreme Court, in 2006, did the following:
- Suggested that each state government establish a State Security Commission and a Police Establishment Board to determine transfers, postings, promotions, etc.
- Outlined the procedure for selection of the Director General of Police
- Prescribed a minimum two-year tenure for police officers
- Directed police departments to separate law and order functions from the investigation function.
Regarding minimum tenure, the state governments are asked to ensure that other police officers on operational duties (including superintendents of police in charge of a district and station house officers in charge of a police station) also have a minimum tenure of two years.
Also read: India goes from superpower to superspreader
In the case of Vineet Narain v Union of India, on December 18, 1997, CJI Verma and two Supreme Court judges directed: “The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.”
The Court repeatedly advised that the Director General of Police of the state shall be selected by the state governments from among the three senior-most officers in the Department who have been empanelled for promotion to that rank by the Union Public Service Commission (UPSC) on the basis of their length of service, very good record and range of experience for heading the police force.
And, once he has been selected for the job, he should have a minimum tenure of two years irrespective of his date of superannuation.
Several states like Andhra Pradesh, Uttar Pradesh, Gujarat and Nagaland opposed the fixed tenure, saying: “Fixed tenure will demoralise officers and limit the government’s flexibility; a fixed two-year tenure for the DGP, irrespective of their superannuation date, will block opportunities for other eligible senior officers, who will be demoralised; further, the directives take away the right of the government to transfer police officers to meet administrative exigencies.”
The Prakash Singh case
In 1998, in a petition by former DGP of Uttar Pradesh, Prakash Singh, the Supreme Court passed a significant order stating that the recommendation for appointment of DGP by the UPSC and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months.
Prakash Singh alleged that this July 3, 2018 directive was being misused by state governments by ignoring competent senior officers. He further stated that after the apex court’s 2018 order, the UPSC, while empanelling candidates, should implement the minimum residual tenure of two years.
The Supreme Court was categorical that officers on the verge of retirement should not be appointed for a two-year term. It has explained the 2018 order on March 13, 2019, referring to the 2006 order. “The direction issued by this court neither contemplated the appointment of a Director General of Police on the eve of his retirement nor the practice now adopted by the Union Public Service Commission in making the empanelment, i.e., empanelling officers who have at least two years of tenure,” it said.
“Neither this court had contemplated recommendation for appointment of officers who are on the verge of retirement nor appointment of officers who have a minimum residual tenure of two years. The emphasis was to select the best and to ensure a minimum tenure of two years’ service of such officer,” it added.
The court pointed out that the Police Acts enacted by states also did not contemplate any fixed residual tenure for an officer to be recommended and explained. “In the above conspectus, the object in issuing the directions in Prakash Singh (2006 verdict), in our considered view, can best be achieved if the residual tenure of an officer i.e. remaining period of service till normal retirement, is fixed on a reasonable basis, which, should be a period of six months,” it said.
The Supreme Court thought “this will take care of any possible action on the part of the state government which can be viewed by any quarter as an act of favouritism….This position will ‘hold the field’ until the validity of Police Acts of states are examined and dealt with by the apex court”.
Prakash Singh further contended that this rule of minimum two years of service was being used to deny promotion to ‘competent’ and ‘honest’ officers by states for their vested interest. His lawyer Prashant Bhushan argued: “Due to this, brilliant police officers have been overlooked on the excuse that they do not have two years of services left. The UPSC says that it will not consider these officers.”
The C Dinakar case
The Supreme Court, in the Union of India versus C Dinakar case of 2004, further explained the appointment process. “Ordinarily, IPS officers of the senior-most four batches in service on the date of retirement of CBI Director, irrespective of their empanelment, shall be eligible for consideration for appointment to the post of CBI Director,” it said. This order pertained to the appointment of DGPs, and was extended to CBI Director, too.
The Lokpal Act was the result of prolonged agitation by the civil society against corruption in high offices and for an independent body that is fool-proof from political influence as to what and who should be investigated. But the Act is left unimplemented. The only provision that is in vogue is that which amended Section 4(A) of the DSPE Act, 1946 — to constitute a high-power body for the selection of CBI Director.
Why the lapse?
Why did the Law Ministry not remember this rule?
Until the CJI raised this well-established judicial precedent that is available in public domain, the Government of India either did not know it or ignored it. It is quite apt that the Chief Justice reminded the Centre of the law of precedent laid down by his court.
However, to read and follow such an important rule, a proper file from Department of Law would have been enough. The Attorney General, the Secretary of Law Department, or officer of the Law Ministry should have been consulted about the rules, law, precedent and guidelines much before convening the meeting of high-power body for this purpose, and they should have prepared a table of candidates for consideration and their eligibility based on their individual performance vis-à-vis the law.
This would have given stability and certainty of the term that ensured independence. Why was this not done?
As the Centre did not perform this basic function, the CJI rightly reminded it of this principle of governance. This will surely improve the autonomy of the office of CBI that was described by the Supreme Court — in a different context — as the ‘caged parrot of the government’.