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REPORATABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.1309 OF 2018

Alok Kumar Verma …. Petitioner(s)

Versus Union of India & Anr. …Respondent(s)

WITH

WRIT PETITION (CIVIL) NO.1315 OF 2018 [Common Cause Vs. Union of India & Ors.]

JUDGMENT

RANJAN GOGOI, CJI

1. That the Rule of law is the bedrock of democracy

would hardly require any reiteration.  However firmly entrenched

the principle may be, it gets tested in a myriad of situations that

confronts the courts from time to time.  The present is one such

occasion.  

2. On 23rd  October, 2018, the Central Vigilance

Commission (hereinafter referred to as “CVC”) passed an order

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divesting Shri  Alok Kumar Verma, Director,  Central Bureau of

Investigation (hereinafter referred to as “CBI”) of the powers,

functions, duties, supervisory role, etc. vested in him as the

Director of the CBI.   The exercise of said power by the aforesaid

order dated 23rd October, 2018, signed by the Central Vigilance

Commissioner  and  two other  Vigilance  Commissioners  holding

office, is stated to  be  under  Section  8(1)(a)  and  8(1)(b)  of the

Central Vigilance Commission Act, 2003 (hereinafter referred to

as “the CVC Act”)  read with Section 4(1) of the Delhi  Special

Police Establishment Act, 1946 (hereinafter referred to as “DSPE

Act”). The divestment of Shri Alok Kumar Verma, Director, CBI of

his functions, powers, duties and supervisory role, specifically,  is

in respect of all cases already registered and/or required to be

registered and/or being inquired/enquired/investigated under

the Prevention of Corruption Act, 1988 (hereinafter referred to as

“PC Act”).

3. The aforesaid order is stated to be in the nature of an

interim measure till completion of an inquiry into the allegations

contained in a complaint dated 24th  August, 2018

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submitted/forwarded  by the  Cabinet  Secretary  by letter  dated

31st August, 2018 to the CVC.   

4. The said order dated 23rd  October, 2018 of the CVC

was followed by an order of the Government of India, Ministry of

Personnel, Public Grievances and Pensions, Department of

Personnel & Training of the same date  i.e.  23rd  October,  2018

divesting Shri Alok Kumar Verma, Director, CBI of his functions,

powers, duties and supervisory role in any manner as the

Director, CBI with immediate effect and until further orders.  

5. There  is yet another order of the same date i.e. 23rd

October, 2018 of the Government of India, Ministry of Personnel,

Public Grievances and Pensions, Department of Personnel &

Training by which one Shri M. Nageshwar Rao, IPS, Joint

Director, CBI has been asked to look after the duties and

functions of Director, CBI with immediate effect.   

6. The legality and validity of the aforesaid three orders is

the subject matter of challenge in Writ Petition (Civil) No.1309 of

2018 filed by Shri Alok Kumar Verma as well as in Writ Petition

(Civil) No.1315 of 2018 filed by Common Cause which claims to

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be a registered society established/founded in the year 1980 by

one   late Shri H.D. Shourie for the purposes of “ventilating the

common problems of the people and securing their resolution”.

7. In addition to interference  with the aforesaid three

orders, in the writ petition filed by Common  Cause, further

prayers have been made,  inter alia, seeking removal of one Mr.

Rakesh Asthana, Special Director, CBI  (respondent no.4 in Writ

Petition (Civil) No.1315 of 2018) from the CBI and for constituting

a Special Investigating Team (“SIT” for short) to go into the

charges of corruption against the officials of the CBI and also the

FIR lodged against Mr. Rakesh Asthana, Special Director, CBI,

details of which are  mentioned in the writ petition filed by

Common Cause.  

8. The order of the CVC dated 23rd October, 2018 is fairly

long and elaborate.   What is essentially stated therein is that a

complaint dated 24th August, 2018 was forwarded to the CVC by

the Cabinet Secretary by letter dated 31st  August, 2018 which,

prima facie, revealed charges of corruption against the Director,

CBI, Shri Alok Kumar Verma.  The CVC considered it worthwhile

to take note of the contents thereof and had sought the

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explanation/comments of the Director, CBI along with the

relevant record(s).    According to the CVC, instead of cooperating

in the matter, the Director, CBI had sought information as to the

identity of the person who had complained to the Cabinet

Secretary in that regard and had gone to the extent of bringing

specific allegations against the Special Director, CBI Shri Rakesh

Asthana.  Details of several cases of corruption  wherein the

Special Director, CBI was alleged to be involved were also

brought to the notice of the CVC by Shri Alok Kumar Verma.  

9. In the order of the CVC dated 23rd October, 2018 it is

further recorded that Shri Rakesh Asthana, Special Director, CBI

had also made serious allegations against Shri Alok Kumar

Verma, Director, CBI and that, in fact, on 15th October, 2018, the

CBI had registered RC 13A of 2018 of AC III, New Delhi under

Section 7 and 13(2) read with 13(1)(d) and Section 7A of the PC

Act as amended in 2018 against Shri Asthana.  The said RC case

was stated to have been registered on the complaint of one Satish

Babu Sana who is an accused in a case investigated by Special

Director, CBI.   At the same time, the CVC also took note of the

fact that Mr. Rakesh Asthana, Special Director, CBI had recorded

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information received from various sources that huge amounts of

bribe were given to the Director, CBI to avoid taking any action

against Satish Babu Sana.  

10. It is in these circumstances, which may be in the least

be termed as unfortunate, that the CVC had thought it proper to

invoke its powers under Sections 8(1)(a),  8(1)(d)  and 11 of  the

CVC Act to pass the impugned order dated 23rd  October, 2018

divesting the Director, CBI of his powers, functions, duties, etc.,

details of which have already been noted.  

11. The two further orders  of the  Government  of India,

Ministry of Personnel, Public Grievances and Pensions,

Department of Personnel & Training of  the same date  i.e.  23rd

October,  2018 were consequential to the  order  passed  by the

CVC, as stated above.  

12. As already seen, it is the legality, validity and

correctness of the aforesaid orders and the action spelt out

therein that has been challenged before us in the two writ

petitions as  well as in the Interlocutory  Applications filed by

various applicants, details of which will be noted in due course.

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13. It is at the very threshold of the present discourse that

a brief history of the organization called the CBI may be recalled.  

The police force in the country was initially governed

by the Police Act, 1861.  Section 3 of the said Act had made the

following provision :

“3. Superintendence in the State Government.­

The superintendence of the police throughout a general police­district shall vest in and shall be exercised by the State Government to which such district is subordinate; and except as authorized under the provisions of this Act, no person, officer, or Court shall be empowered by the State Government to supersede, or control any police functionary.”

14.   The DSPE Act was enacted in the year 1946 to carve

out an exception to the Police Act, 1861.   The same is evident

from Section 2(1) which is in the following terms:  

“2. Constitution and powers of police establishment.

(1) Notwithstanding anything in the Police Act,  1861  (5  of  1861) the  Central  Government may constitute a special police force to be called the  Delhi Special Police  Establishment for the investigation  in any Union Territory of  offences notified under Section 3.  

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15. Initially the administration of the Delhi Special

Police Establishment was governed by the provisions of

Section 4 of the DSPE Act which contemplated the

following:

“4. Superintendence and administration of SPE­

(1) The superintendence of the Delhi Special Police  Establishment shall vest in the  Central Government.  

(2) The administration of the said police establishment shall vest in an officer appointed in this  behalf  by the  Central  Government  who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.”

16. It is the  Delhi  Special  Police  Establishment  brought

into existence by DSPE Act, 1946  which today is known as the

CBI.  The origin of the organization has been succinctly traced by

this Court in Vineet Narain and others vs. Union of India and

another   1 and the relevant details are available in paragraphs 30

and 31 of the report  of this  Court in  Vineet  Narain  (supra).

1 (1998) 1 SCC 226

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Shortly put and as already observed, investigation of anti­

corruption cases; economic offences and ordinary crimes of

special importance  have come to  be vested in the  CBI  which

exercises its jurisdiction in the territory of all States and Union

Territories (with consent of the State Governments).   

17. The organization i.e. CBI has grown over the years in

its role, power and importance and today has become the premier

investigative and prosecution agency of the country.   The high

stature and the pre­eminent  position that the institution  has

acquired is largely on account of a strong perception of the

necessity of having such a premier agency.   Such a perception

finds reflection in the conscious attempts of the Government of

the day to introduce reforms, from time to time, so as to enable

the institution to reach greater heights in terms of integrity,

independence and confidence.  A close look at such attempts will

now be in order.  

18. In  Vineet Narain  (supra) such developments have

already been taken note of in detail.   The recommendations of

the Committee headed by Shri N.N. Vohra constituted by

Government Order No. S/7937/SS(ISP)/93 dated 9th July, 1993

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and those of the Independent Review Committee (IRC) constituted

by Government Order No. 226/2/97­AVD­II dated 8th September,

1997 has had a major role to play in giving the CBI and the CVC

their present shape and form and the pivotal role and position

that these two bodies have come to occupy in the system of law

enforcement in the country.   Incidentally, the CVC had been in

existence as an administrative body on being established by

Resolution No.24/7/64­AVD dated 11th February, 1964 issued by

the Central Government until conferment of statutory status by

the CVC Act, 2003 on the basis of recommendations of the IRC,

summary of which with regard to the  CBI and CVC may now be

taken note of.

“SUMMARY OF RECOMMENDATIONS

I. CBI and CVC 1. CVC to be conferred statutory status; appointment of  Central Vigilance Commissioner to be  made under the hand and seal of the President (para 4.2)

2.  Constitution of  a  Committee  for  selection of CVC (para 4.3)

3. CVC to overview CBI’s functioning (para 5)

4. CBI’s reporting to Government to be streamlined without diluting its functional autonomy (para 3.3)

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5. CVC to have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is transferred to it (para 6)

6. Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel (para 8.2)

7. Central Government to pursue with the State Governments  to set up credible mechanism for selection of Police Chief (para 8.3)

8. Director CBI to have a minimum tenure of 2 years (para 8.4)

9. Transfer of incumbent Director CBI would need endorsement of the Selection Committee (para 8.5)

10. Director CBI to ensure full freedom for allocation of  work within the Agency,  including constitution of investigation teams (para 8.6)

11. Selection/extension of tenure of officers up to the level of Joint Director (JD) to be decided by a Board under Central Vigilance Commissioner; JD and above would need the approval of ACC (para 8.7)

12. Change in the existing Tenure Rules not recommended (para 8.8)

13. Proposals for improvement of infrastructure, methods of investigation, etc., to be decided urgently (para 8.9.2)

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14.  No  need for creation  of a  permanent core group in the CBI (para 8.9.3)

15. Severe disciplinary action against officers who deviate from prescribed investigation procedures (para 9.1)

16.  Director CBI to be responsible for ensuring time­limits for filing charge­sheets in courts (para 9.2)

17. Document on CBI’s functioning to be published within three months (para 9.4)

18. Essential to protect officers at the decision­ making levels from vexatious enquiries/prosecutions (para 10.6)

19.  Secretaries to  adhere strictly to  prescribed time­frames for grant of permission for registration of PE/RC. CBI to be free to proceed if decision not conveyed within the specified time (para 10.9)

20. Secretary of Administrative Ministry to convey a decision regarding registration of PE/RC within 2 months of receipt of request. If not satisfied with decision, Director CBI free to make fresh reference to the Committee headed by Cabinet Secretary within a period of four weeks and the latter to decide thereon within a period of four weeks (para 10.10)

21. Protection under the Single Directive not to cover offences like bribery, when prima facie established in a successful trap (para 10.12)

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22.  Cases of  disproportionate assets  of  Central Government and All India Services Officers to be brought within the ambit of the Single Directive (para 10.13)

23. Time­limit of 3 months for sanction for prosecution. Where consultation is required with the Attorney  General or the Solicitor General, additional time of  one month could be allowed (paras 10.14 and 10.15)

24. Government to undertake a review of the various types of offences notified for investigation by the  CBI to retain focus on anti­corruption activities which is its primary objective (para 11.1)

25.  Cases falling  within the jurisdiction  of the State Police which do not have inter­State or international ramifications should not be handed over to CBI by States/courts (para 11.2)

26.  Government to establish Special Courts for the trial of CBI cases (11.3)

27. Severe action against officials found guilty of high­handedness; prompt action against those officials chastised by the courts (para 11.4)

28. Director CBI to conduct regular appraisal of personnel to weed out the corrupt and inefficient, and maintain strict discipline within the organization (para 11.5)”

19. In paragraph 58 of the report of this Court in  Vineet

Narain (supra) directions under Article 142 of the Constitution of

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India which were to hold the field till such time that the

necessary statutory enactments are brought into force, came to

be issued by this Court.  Paragraph 58 of the report of this Court

in Vineet Narain (supra) insofar as CVC and CBI are concerned

is in the following terms:

“58. As a result of the aforesaid discussion, we hereby direct as under:

I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC)

1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection for the post of Central Vigilance Commissioner shall be  made by a Committee comprising the Prime  Minister,  Home  Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.

3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning. The CBI shall report to the CVC

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about cases taken up by it for investigation; progress of investigations; cases in which charge­ sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused.

4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non­partisan agency.

5. The CVC shall have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is transferred to it.

6. Recommendations for appointment of the Director, CBI shall be  made by a Committee headed  by the  Central  Vigilance  Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent  Director  shall  be  considered  by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti­corruption work.  The  final  selection shall  be made by  the Appointments  Committee of the  Cabinet (ACC) from  the panel recommended  by the  Selection Committee. If none among the panel is found suitable, the reasons thereof shall  be recorded and the  Committee asked to draw  up  a fresh panel.

7. 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

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merely  because  he  has less than  two years to superannuate from the date of his appointment.

8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him  to take  up a  more important  assignment, should have the approval of the Selection Committee.

9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made  by the  Director,  CBI in the  Head  of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.

10. Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments  Committee  of the Cabinet (ACC) for decision.

11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI’s in­house expertise, professionals from the Revenue, Banking and Security sectors should be inducted into the CBI.

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12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI’s functioning. It is imperative that the CBI adheres scrupulously to the  provisions  in the  Manual in relation  to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.

13. The  Director,  CBI shall be responsible for ensuring the filing of charge­sheets in courts within the stipulated time­limits, and the matter should be kept under constant review by the Director, CBI.

14. A document on CBI’s functioning should be published  within three  months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.

15. Time­limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation  is required with the Attorney General (AG) or any other law officer in the AG’s office.

16. The  Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.”

20. What followed thereafter is the enactment of the CVC

Act, 2003.   The salient  features of the CVC Act,  so far as the

present exercise is concerned, are to be found in Section 4 of the

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CVC Act which mandates that the appointment of the Central

Vigilance Commissioner and the Vigilance Commissioners shall

be made by the President on the recommendation of a Committee

consisting of : (a) the Prime Minister; (b) the Minister of Home

Affairs and (c)the Leader of the Opposition in the House of the

People.

Section 6 of the CVC Act contemplates the removal of

Central  Vigilance Commissioner and a Vigilance Commissioner

only by order of the President on the ground of proved

misbehaviour  or incapacity  as  may  be found  by the  Supreme

Court of India on a reference being made by the President to the

Court.   However, under sub­section (2) of Section 6 of the CVC

Act there is a power in the President of suspension from office

pending  inquiry on the reference made to the Supreme Court.

Sub­section (3) of Section 6 of the CVC Act also empowers the

President to remove from office the Central Vigilance

Commissioner  or  any  Vigilance  Commissioner in the following

cases:

“(a).     is adjudged an insolvent; or

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(b).    has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(c).     engages during his term of office in any paid employment outside the duties of his office; or

(d).    is, in the opinion  of the  President,  unfit to continue in office by reason of infirmity of mind or body; or

(e).     has acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner.”

21. Though  the  Director,  CBI is to  be  appointed by the

Central  Government on the recommendation of  a similar  High

Power Committee, no provision with regard to interim suspension

or removal is to be found in the DSPE Act, 1946, notwithstanding

the fact that the said Act i.e. DSPE Act was amended by the CVC

Act, 2003.  The CVC Act, 2003 and the amendments made in the

DSPE Act, 1946 were clearly made to bring the provisions thereof

in  proximity to the  directions issued  by this  Court in  Vineet

Narain (supra) so far as the CVC and the CBI is concerned.   

22. Section  8 of the  CVC  Act  deals  with functions  and

powers of the CVC whereas Section 11 deals with the power of

the CVC with regard to inquiries.  Both the powers vested by the

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aforesaid two provisions of the CVC Act i.e. Section 8 and Section

11 having been invoked in the present case to support and justify

the impugned actions it will be necessary to extract and notice

the said provisions in extenso:

“8. Functions and powers of Central Vigilance Commission.­

(1).     The functions and powers of the Commission shall be to­

(a)     exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed  under the Prevention of  Corruption Act, 1988 (49 of 1988), or an offence with which a public servant specified in sub­section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;

(b).    give  directions  to  the Delhi  Special  Police Establishment for the purpose of discharging the responsibility  entrusted to  it  under sub­section (1) of section 4 of the Delhi Special Police Establishment Act, 1946 (25 of 1946):

Provided that while exercising the powers of superintendence under clause (a) or giving directions under this clause, the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner;

(c).     inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein  it is  alleged that  a public servant being an employee of the Central Government or  a corporation established by or

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under any  Central Act,  Government company, society and any local authority owned or controlled  by that  Government,  has committed an  offence  under the  Prevention  of  Corruption Act, 1988 (49 of 1988) or an offence with which a public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;

(d).    inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials specified in sub­section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 (49 of 1988) and an offence with which a public servant specified in subsection (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;

(e).     review the progress of investigations conducted by the Delhi Special Police Establishment into offences alleged to have been committed  under the Prevention of  Corruption Act, 1988 (49 of 1988) or the public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial;

(f).     review the progress of applications pending with the competent authorities for sanction  of prosecution under the Prevention of Corruption Act, 1988 (49 of 1988);

(g).    tender  advice to the  Central  Government, corporations established by or under any Central Act, Government companies, societies and local authorities  owned  or controlled  by the  Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise;

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(h).     exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government:

Provided that  nothing  contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the Vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission  to issue directions  relating to  any policy matters;

2.     The persons referred to in clause (d) of sub­ section (1) are as follows:—

(a).     members of All­India  Services serving in connection with the affairs of the Union and Group ‘A’ officers of the Central Government;

(b).    such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local authorities,  owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf:

Provided that till such time a notification is issued under this clause, all officers of the said corporations, companies, societies and local authorities shall  be  deemed to  be the  persons referred to in clause (d) of sub­section (1).

(c) on a reference made by the Lokpal under proviso to  sub­section (1)  of  Section  20  of the Lokpal and Lokayuktas Act, 2013 (1 of 2014), the persons referred to in clause (d) of sub­section (1) shall also include—

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(i) members of Group B, Group C and Group D services of the Central Government;

(ii) such level of officials or staff of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or controlled by the Central  Government,  as  that  Government  may, by notification in the Official Gazette, specify in this behalf:

Provided that till such time a notification is issued under this clause, all officials or staff of the said corporations, companies,  societies and local authorities shall be deemed to be the persons referred in clause (d) of sub­section (1).  

xxx xxx xxx

“11. Power relating to inquiries.­

The Commission shall, while conducting any inquiry referred to in clauses (b) and (c) of sub­ section (1) of section 8, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and in particular, in respect of the following matters, namely:­

a.     summoning and enforcing the attendance of any person from any part of India and examining him on oath;

b.    requiring the discovery and production of any document;

c.     receiving evidence on affidavits;

d.    requisitioning any public record or copy thereof from any court or office;

e.     issuing commissions for the examination of witnesses or other documents; and

f.     any other matter which may be prescribed.”

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23. The provisions of the  DSPE Act  as  amended by  Act

No.45 of 2003 (The Central Vigilance Act, 2003) and Act No.1 of

2014 (Lokpal and Lokayuktas Act, 2013)  may also require a

specific notice.   Sections 4,   4A and 4B introduced by the

aforesaid amendments, on which elaborate arguments have been

made by the contesting parties, provide as follows:

“4. Superintendence and administration of Special Police Establishment.—  (1) The superintendence of the Delhi Special Police Establishment in so far as it relates to investigation of offences alleged to have been committed  under the Prevention of  Corruption Act, 1988 (49 of 1988), shall vest in the Commission.  

(2) Save as otherwise provided in sub­section (1), the superintendence of the said police establishment  in all  other matters shall  vest in the Central Government.  

(3) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government (hereinafter referred to as the Director) who shall exercise  in respect of that police establishment such of the powers exercisable by an Inspector­ General of Police in respect of the police force in a State as the Central Government may specify in this behalf.  

4A. Committee for appointment of Director.— (1) The  Central  Government shall appoint the

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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 anti­corruption 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.  

4B. Terms and conditions of service of Director.—(1) The Director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office.

26

(2) The Director shall  not be transferred except with the previous consent of the Committee referred to in sub­section (1) of section 4A.”   

24. Shri F.S. Nariman and Shri Dushyant Dave, learned

Senior Counsels, who have argued the case for Shri Alok Kumar

Verma, Director, CBI and Common Cause have   contended that

the history of the institutional framework surrounding the CBI

leading to the statutory enactments  in question and the views

expressed in the judgment of this Court in  Vineet Narain

(supra), including the operative directions under Article 142 of

the Constitution, can leave no doubt that the judicial endeavour

should/must  always be to  preserve,  maintain  and  further the

integrity, independence and majesty of  the  institution  i.e.  CBI.

This is the core intent behind the statutory enactments and the

amendments thereto, details of  which have been noticed.   The

Director of the  CBI is the centre of power in an abundantly

powerful  organization  having jurisdiction  to investigate  and  to

prosecute key offences and offenders having great ramifications

and consequences on public  life.  There can be no manner of

doubt that the Director who has been given a minimum assured

27

tenure of “not less than two years” must be insulated from all

external interference  if the CBI has to  live up to the role and

expectations of the legislature and enjoy public confidence to the

fullest  measure.   This is how the provisions of the cognate

legislations i.e. the  CVC  Act, 2003 and  DPSE  Act, 1946 (as

amended), must be interpreted, according to the learned

counsels.  It is specifically urged that the embargo under Section

4B(2) of the DSPE Act which mentions that the Director shall not

be transferred except with the previous consent of the Committee

must be construed  in  the broadest  perspective to include any

attempt to divest the  Director, CBI of his powers, functions,

duties, etc. in any  manner whatsoever and   not necessarily

relatable to the transfer of the  incumbent as  is understood  in

ordinary parlance.   According to the learned counsels, unless

such a meaning is attributed to the provisions of Section 4B(2) of

the DSPE Act, the legislative intent  would be rendered futile and

so would be the entire judicial exercise culminating in the

operative directions of this Court in Vineet Narain (supra).

25. So construed, according to the learned counsels, the

exercise of power in the present case is blatantly and patently

28

flawed.  There can be no legal recognition of the action taken on

the strength of the  impugned orders which have been notified

without seeking the previous consent of the Committee for

appointment of Director, CBI constituted under Section 4A(1), of

the DSPE Act, 1946.

26. The alternative argument made is that if the provisions

of Section 4B(2) of the DSPE Act are to be “narrowly” construed

by understanding the word “transfer” as is normally understood

in service  jurisprudence, the ultimate validity of  the  impugned

exercise will have to be tested by the adequacy and sufficiency of

reasons to justify a premature curtailment of the tenure of the

Director,  CBI.  No such  justification,  according  to the learned

counsels, exists.  In this regard, it has been pointed out that the

allegations against the Director, CBI made by Special Director,

CBI Shri   Rakesh Asthana and the purported inquiry into such

allegations by the CVC and the disinvestment of powers during

the interregnum i.e. pendency of the inquiry are wholly

unjustified actions prompted by collateral reasons.  Interference,

in the larger  public interest,  by this  Court in the exercise  of

29

powers of judicial review under Article 32 of the Constitution of

India would therefore be called for.  

27. The aforesaid argument has been countered by Shri

K.K. Venugopal, learned Attorney General appearing for the

Union of India  who contends that the role of the  Committee

under Section 4A(1) of the DSPE Act is limited to making

recommendations on the basis of which the Central Government

is to make the appointment.  According to the learned Attorney,

once the recommendation  is  made by the  Committee  and  the

appointment is  made, the  Committee  becomes functus  officio.

Reliance has been placed in this regard on  Shankarsan Dash

vs. Union of India   2 and Jai Singh Dalal and others vs. State

of Haryana & another   3 to contend that when the law does not

recognize in any incumbent, who may have been recommended, a

right to be appointed it cannot be contended that after the

appointment is made   the Committee constituted to make

recommendations for appointment has to be consulted in all

cases of disinvestment of power, even beyond what is specifically

provided for by Section 4B(2) of the DSPE Act.  Section 4B(2), it is

2 (1991) 3 SCC 47 3 1993 Supp. (2) SCC 600

30

pointed out provides/mandates the requirement of previous

consent only  in cases of transfer of  the Director which is also

what had been directed by this Court in paragraph 58(8) of the

report in  Vineet  Narain  (supra).   The Learned Attorney has

further submitted that the present is not a case of transfer so as

to require the previous consent of the Committee under Section

4B(2) of  the DSPE Act.  Reliance has also been placed on the

provisions  of  Section  16  of the  General  Clauses  Act,  1897 to

persuade the Court to recognise in the   Central Government a

power to divest the Director, CBI of his powers, functions, duties,

etc.   According to the learned Attorney the power to divest must

be acknowledged to be the logical corollary of the   power of

appointment of the Director, CBI which is vested in the Central

Government.   

28. On the other hand, Shri Tushar Mehta, learned

Solicitor General appearing for the CVC has argued that merely

on the appointment of a Member of the Indian Police Service as

the Director, CBI, the incumbent does not cease to be a public

servant/government servant.   He continues to be, according to

the  learned Solicitor General,  a civil  servant;  a member of  the

31

Indian Police Service amenable to all service conditions as

applicable and also to the disciplinary control of the Competent

Authority.   The only exception in this regard, according to the

learned Additional Solicitor General, is provided by Section 4B(1)

of the DSPE Act which provides for a fixed tenure of the Director.

It is only the Rules/conditions of service so far as the retirement

is  concerned that  stands  diluted/affected by the  provisions  of

Section 4B(1) of the DSPE Act and none other.

29. In brief, these are the broad submissions of the

contesting parties. It has been further supplemented by the

learned counsels for the petitioner that on a meaningful

interpretation of the provisions of the relevant statutes the Court

should take the view that what is provided therein is a complete

insulation of the incumbent holding the post of Director of the

CBI and no action affecting his continuance and functioning can

be taken except  with the previous consent of the  Committee

under Section 4A of the DSPE Act.  It is only after the incumbent

ceases to hold the post of Director, upon transfer or otherwise,

made with the previous consent of the Committee, that the

32

disciplinary control over such incumbent as a civil servant can be

exercised by the Central Government.  

30. The contentions advanced by the rival parties would

require the Court to consider two issues to determine the validity

of the impugned orders.  The first is the competence of the CVC

and the Government of India to divest the Director, CBI of all his

powers, functions, duties, supervisory role, etc. without obtaining

the  prior  consent  of the  Committee  constituted  under  Section

4A(1) of the DSPE Act to make recommendations for appointment

of the Director, CBI.   Learned counsels for the petitioners are

emphatic in their contentions that obtaining such prior consent

is the in­built mandate under the Statute which flows from the

operative directions issued by this  Court in paragraph 58 of

Vineet Narain  (supra).   Therefore, according to the learned

counsels for the petitioners, the impugned orders passed without

obtaining prior consent of the Committee are non­est in law and

no other issue really need be gone into in the present case.  

31. The  above contention raises  a  pure  question  of law

answerable on application of known and established principles of

law  including interpretation of the  provisions of the  CVC Act,

33

2003 and the DSPE Act, 1946   and further in the light of such

legislative intent that can be culled out in making the enactments

in question.  Not only do we prefer to deal with the said question

in the first instance for the  above  stated reason but  such an

exercise becomes obligatory in view of the jurisdictional questions

that are inbuilt therein.   On the aforesaid basis the second

question raised can be relegated to a later stage of consideration,

which question, we may indicate is one relating to the

sufficiency/adequacy or even the relevance of the reasons that

had prompted the CVC and the Government of India to take the

impugned decisions,  a question that may legitimately call for an

answer only in the event of our disagreeing with the contentions

advanced on behalf  of the petitioner on the  first issue namely

that the divestment of power and authority of the Director, CBI

can only be with the prior consent of the Committee.

32. There is no manner of doubt that the enactment of the

CVC Act, 2003 and the amendments made by the said

enactment, inter alia, in the DSPE Act (by Section 26 of the CVC

Act, 2003) are a sequel to the operative directions of this Court in

paragraph 58 of  Vineet Narain  (supra).   The legislature in its

34

wisdom had not considered the necessity of tempering down the

directions of this Court in Vineet Narain (supra) in any manner

whatsoever.   The mode and manner of appointment of Central

Vigilance Commissioner and Vigilance Commissioners as well as

that of  the Director,  CBI as spelt  out by this Court  in  Vineet

Narain (supra) has been scrupulously followed by Parliament.  In

fact, at this stage, we  may even take note of the fact that

Parliament on its own in amending Section 4A of the DSPE Act

by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of 2014) has

gone a step further to give effect to the directions of this Court

made in  Vineet Narain  (supra) inasmuch as the object for

change of the Committee for making recommendations for

appointment of the  Director, CBI has been stated to be the

necessity “to provide a High Power Selection Committee for

selection of Director of the Delhi Special Police

Establishment”.   

33. The Court, in its bid to understand the true legislative

intention behind the statutory enactments in question, cannot be

oblivious of the views expressed by this Court in Vineet Narain

35

(supra) leading to the operative directions in para 58 that formed

the basis of the legislative exercise in question.   The said views

must be understood to have been considered fully by Parliament

before engrafting the consequential directions contained in

paragraph 58 of  Vineet Narain (supra) in the form of statutory

enactments, details of which have been noticed earlier.   In this

regard, paragraphs 3 and 48 of the report of this Court in Vineet

Narain (supra) must hold a special field so as to deserve a recall

of the contents thereof which are in the following terms:

“3.  This experience revealed  to us the need for the insulation of these agencies from any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy

36

of  which rule  of law  is the  bedrock.  The  basic postulate of the concept of equality: “Be you ever so high, the law is above you,” has governed all steps taken by us in these proceedings.

xxx xxx xxx

48.  In view of the common perception shared by everyone including the  Government  of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the  need  of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.”

34. These  are the  basic facts that  cannot  be  overlooked

while gathering the intention  of the legislature in  making the

provisions contained in Section 4A and Section 4B of the DSPE

Act.   An indepth consideration of the matter leaves us with no

doubt that the clear  legislative intent  in bringing the aforesaid

provisions to the statute book are for the purpose of  ensuring

complete insulation  of the  office  of the  Director,  CBI from all

kinds of extraneous influences, as may be, as well as for

37

upholding the integrity and independence of the institution of the

CBI as a whole.     

35. There are certain other relevant facts that cannot be

ignored.  The provisions  of various State enactments (Police Act),

as for example Uttrakhand Police Act 2007, following the decision

of this Court in Prakash Singh  And Others vs. Union of India

And Others   4   (2006) 8 SCC 1,while providing for a tenure of two

years to the  Director  General of Police of the  State expressly

contemplates removal of the incumbent before expiry of the of the

tenure on certain specified   grounds [Section 20 (4) & (5)].

Similarly,   Section 6 of the CVC Act, which has been extracted

above, specifically contemplates certain interim measures against

the Central Vigilance Commissioner or a Vigilance Commissioner

pending consideration  by the  Supreme  Court of the reference

made  by the  President to the  Court for removal of any such

incumbent. Removal of any of the aforesaid incumbents holding

any of the aforesaid posts is also contemplated on certain

contingencies occurring as spelt out by sub­section (3) of Section

6 of the CVC Act.  No such provision has been engrafted so far as

4  (2006) 8 SCC 1

38

the office of the Director, CBI is concerned except what is

contained in Section 4B(2) of the DSPE Act, namely, that “the

Director  shall  not  be  transferred except  with the previous

consent of the Committee  referred to in sub­section (1) of

section 4A”.   As already noticed, Section 4B including sub­

section  (2)  thereof  of  the DSPE Act,  as  it  exists on date, were

brought in  by  the  same  legislation  i.e.  CVC Act (Act  No.45 of

2003).   

36. If the  legislative intent would have been to confer  in

any  authority of the  State a  power to take interim measures

against the Director, CBI thereby affecting his functioning,

surely, the legislation would have contained enabling provisions

to that effect and consequently would have been differently

worded and drafted.   It is against this backdrop that the words

“transferred except with the previous consent of the

Committee” mentioned in Section 4B(2) of the DSPE Act has to

be understood.  If the word “transferred” has to be understood in

its ordinary parlance and limited to a change from one post to

another, as the word would normally convey and on that basis

the requirement of “previous  consent  of the  Committee” is

39

understood to be only in such cases, i.e. purely of transfer, such

an interpretation would be self­defeating and would clearly

negate the legislative intent.   In such an event it will be free for

the State Authority to effectively disengage the Director, CBI from

functioning  by  adopting  various modes,  known and unknown,

which may not amount to transfer but would still have the same

effect as a transfer from one post to another, namely, cessation of

exercise  of  powers  and functions  of the  earlier  post.  This is

clearly not what the legislature could have intended.   The long

history of evolution has shown that the institution of the CBI has

been  perceived to  be  necessarily  kept  away from all kinds  of

extraneous influences so that it can perform its role as the

premier  investigating and prosecuting agency without any  fear

and favour  and in the  best  public interest.  The  head  of the

institution, namely, the Director, naturally, therefore, has to be

the role model of independence and integrity which can only be

ensured by  freedom from all  kinds of  control  and  interference

except to the extent that Parliament may have intended.   Such

intendment, in our considered view, would require all Authorities

to keep away from intermingling or interfering in the functioning

of the Director. In a situation where such interference may at all

40

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.   This alone can provide an adequate

safeguard to  ensure the independence of the  office  keeping in

view  the legislative intent,  as found and  held  by  us.   In this

regard we feel fortified in saying that   the status of the Committe

having undergone an upward  movement by the amendment

brought in by the Lokpal and Lokayuktas Act, 2013 (Act No.1 of

2014) it cannot but be said that the legislative intent in shielding

and insulating the office of the Director from any kind of

extraneous influence has been foremost in the mind of

Parliament which intent found manifestation in the changes in

law brought about in the circumstances noted above.  

37. There  is yet another  issue of significance that arises

from the weighty arguments advanced in the course of the long

debate that has taken place.   This is with regard to the

application of Sections 14, 15 and 16 of the General Clauses Act,

41

1897 so as to confer a power in the Central Government to pass

the impugned orders  including the order of appointment of an

acting Director of the CBI.   The preceding discussions and our

views on the true and correct meaning of the provisions

contained in Sections 4A & 4B of the DSPE Act leaves us

convinced that the aforesaid provisions of the General Clauses

Act will have no application to the present case in view of the

clear and apparent intention to the contrary that unequivocally

flows from the aforesaid provisions of the DSPE Act.

38. So far as the correctness of the impugned decisions on

merit is concerned, not much argument have been made either

on the relevance or  the sufficiency of the grounds shown and

disclosed for the impugned decisions.   This is, perhaps, on the

understanding of the learned counsels that our attempts to keep

the report of the enquiry by the CVC ordered on 26th October and

12th November, 2018 in sealed cover was sufficiently indicative of

the mind of the Court that this aspect of the case should require

to be unfolded only if inevitable and that too in the event of a

negative decision on the jurisdictional question.     The inherent

limitation in such an exercise of, if at all is to be undertaken, is

42

another inhibiting factor.  Be that as it may such an exercise has

now become wholly unnecessary in view of the decision on the

jurisdictional issue.

39. Consequently,  in the light of  our views as expressed

above we set aside the following orders dated 23rd October, 2018:

(i)  of the CVC divesting the powers, functions,

duties, supervisory role, etc. of Shri Alok Kumar

Verma as Director, CBI  

(ii) of the Government of India, Ministry of Personnel,

Public  Grievances and Pensions,  Department of

Personnel & Training divesting Shri Alok Kumar

Verma,  Director, CBI of his functions, powers,

duties and supervisory role with immediate effect

and until further orders.

(iii)  of the Government of India, Ministry of Personnel,

Public  Grievances and Pensions,  Department of

Personnel & Training by which one Shri M.

Nageshwar Rao, IPS, Joint Director, CBI has been

asked to  look after the duties  and  functions of

Director, CBI with immediate effect.

40. Our interference, as above, will now require the matter to be

considered by the Committee under Section 4A(1) of the DSPE

43

Act, 1946 which may be so done at the earliest and, in any case,

within  a  week  from the  date  of this  order.  A  meeting  of the

Committee may be accordingly convened by the competent

authority.

41. As the issue of divestment of power and authority of

the Director, CBI is still open for consideration by the Committee

and our interference with the impugned orders has been on the

ground indicated  above,  we  deem  it  proper to  direct that the

petitioner Shri Alok Kumar Verma, Director, CBI, upon

reinstatement, will cease and desist from  taking any major policy

decisions till the decision of the Committee permitting such

actions and decisions becomes available within the time frame

indicated.  We further  make it explicit that the role of the

Petitioner Shri Alok Kumar Verma as the Director, CBI during the

interregnum and  in terms of this order will be confined only to

the exercise of the ongoing routine functions without any fresh

initiative, having no major policy or institutional implications.   

42. Coming to the several IAs filed, we are of the view that

the orders of transfer etc. impugned/mentioned in the said IAs

44

are a sequel of the three orders dated 23rd October, 2018 which

were specifically impugned in the  writ  petitions.  As  we  have

answered the writ petitions in the manner indicated above, we do

not consider it necessary to examine the correctness of the

further/consequential orders of transfer etc. and that too on the

basis of interlocutory applications filed in pending writ petitions

under Article 32 of the Constitution, which stand disposed of by

the present order.  However, we leave the parties with the remedy

of  challenging the said consequential  orders  in an appropriate

manner and before the appropriate forum, if so required and so

advised.

43. Both  writ petitions and all the IAs are accordingly

disposed of.

…………………………………….,CJI  [RANJAN GOGOI]

…………………………………….,J  [SANJAY KISHAN KAUL]

…………………………………….,J  [K.M. JOSEPH]

NEW DELHI JANUARY 08, 2019