In the court of last resort

The Supreme Court’s actions in the CBI case underline the gravity of the institutional crisis
The Supreme Court, on Friday, stepped into the institutional crisis engineered by the “forcible transfer” of the Director of the Central Bureau of Investigation (CBI) earlier in the week. Given the patent illegality of the “forcible leave” of CBI Director Alok Verma, and the need to maintain the Bureau’s legal independence guaranteed by law, the Supreme Court has chosen to attempt to sort out this mess. That it needs sorting out is hardly news. Legally, the straightforward thing to do would have been for the Supreme Court to act according to the black and white law, and reinstate Mr. Verma, the CBI Director, and leave it there. Section 4B of the Delhi Special Police Establishment Act doesn’t allow the government to transfer the CBI Director during the two-year fixed tenure without the previous consent of the high powered committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition (or a member of the largest Opposition party in the Lok Sabha). This was introduced in 2013 by the Act constituting the Lokpal. Till then, the Central Vigilance Commission (CVC) was a part of the committee mentioned in Section 4B. It isn’t any longer, and thus has no role in asking the government to divest the CBI Director of his powers. The Supreme Court has tread more cautiously — but given the administrative breakdown, prudently. It has not immediately reinstated the CBI Director and instead has clipped the wings of the “interim” Director, restraining him from making any policy or major decisions, except those that are routine and essential for the CBI to function. The interim order also said that his decisions thus far will be reviewed by the Supreme Court, and must be submitted to it. All transfers, including of one officer to Port Blair, will be reviewed by the Supreme Court.The Supreme Court, thus, has chosen to act according to its ideas of fairness, or equity, rather than the strict confines of the law. It has waded into the administrative crises trying to fashion a solution, but as an interim measure it has indicated that it will have to consider each decision of the “interim” CBI Director, and thus each decision of the officer transferred in every investigation. Justice Patnaik will have to supervise an investigation, within two weeks, into the vague and secret allegations against Mr. Verma. Both are woefully under-equipped for a task that requires fact-finding of such magnitude. However, as an interim measure, it is hard to think what else would have sufficed. When the executive and independent institutions act with such brazenness against the constitutional ethos, can the Supreme Court bear the entire burden of course correction? Are the sinews of the Constitution strong enough to withstand such vicious jabs? Avi Singh is an advocate who specialises in transnational and criminal law, and is also currently the Additional Standing Counsel for criminal cases for the Government of the NCT of Delhi. The views expressed are personal
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