[dropcap]J[/dropcap]USTICE A K Sikri, the senior-most judge of the Supreme Court, on Thursday, January 24, 2019, chose to recuse himself from hearing a Public Interest Litigation (PIL) challenging the appointment of M Nageswara Rao as interim director CBI. PIL was listed for hearing today, January 24, 2019, before a three-judge bench of the Supreme Court, comprising Justices A K Sikri, Abdul Nazeer and M R Shah.
The matter came up before Justice Sikri after the recusal of the CJI Ranjan Gogoi from the case on January 21, 2019 and the judicial order passed by him listing the case before Court 2, i.e. bench presided over by Justice Sikri.
PIL challenging appointment of M Nageshwar Rao as the interim director of the CBI- Justice A K Sikri recuses from the hearing. Eariler CJI Ranjan Gogoi had recused from the case.
— The Leaflet (@TheLeaflet_in) January 24, 2019
At this juncture, senior advocate Dushyant Dave said that the recusal from the case should have been done earlier, not on the day when the Selection Committee was meeting to recommend names for the appointment of CBI director, and claimed that the Supreme Court was trying frustrate the cause of the petition. To this, Justice Sikri replied: “I would have opted out yesterday itself had CJI passed an administrative order allotting the case to me. But CJI passed a judicial order in the Court and I have no opportunity to refuse.”
CJI passed judicial order to list it before me. Had it been the administrative order, I would have recused from the case yesterday itself, says Justice Sikri to senior advocate Dave. https://t.co/3oTeslp8yt
— The Leaflet (@TheLeaflet_in) January 24, 2019
Dave also made it clear that he had no problem with Justice Sikri hearing the petition. Attorney General K K Venugopal, appearing for the Union of India, also echoed Dave and said he had no problem with Justice Sikri hearing the present case. However, Justice Sikri chose to recuse himself from the case, and directed the listing of the PIL before an appropriate bench tomorrow, January 25, 2019.
The case against M Nageswara Rao’s appointment as interim BI director
The NGO Common Cause and noted RTI activist Anjali Bharadwaj have approached the Supreme Court of India seeking quashing of the appointment of IPS officer M Nageswara Rao as the interim Director CBI. Rao was given charge of the office of the Director CBI by an order dated January 10, 2019 issued by the Appointment Committee of the Cabinet. The said order came to be issued after transfer of Alok Kumar Verma from the office of the Director by the High Powered Committee (HPC) comprising the Prime Minister Narendra Modi, the Leader of single largest opposition party in Lok Sabha Mallikarjuna Kharge and Justice A K Sikri. The HPC, by a vote of 2:1, decided to transfer Alok Verma, out of the CBI. Mallikarjuna Kharge had dissented with the majority decision.
The Petitioners, through advocate Prashant Bhushan, have alleged that the appointment of Rao as interim Director is illegal, arbitrary, mala fide and in violation of the provisions of the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the judgment dated January 8, 2019 of the Supreme Court in Alok Kumar Verma v. Union of India wherein the court had quashed the appointment of M Nageswara Rao as the interim Director CBI, along with the orders of the DoPT and CVC divesting Alok Verma of his powers and functions as CBI Director.
Also read: Even those accused of heinous crimes get a hearing. Why then wasn’t former CBI Director Alok Verma granted one?
Petitioners have contended that the order dated January 10, 2019 states that the Appointment Committee of the Cabinet has approved the appointment of M Nageshwar Rao “as per the earlier arrangement”. However, this earlier arrangement i.e. Order dated October 23, 2018 making Nageshwara Rao interim CBI Director, had been quashed by the Supreme Court vide order dated 08.01.2019 as it was made in violation of the procedure for appointment of CBI Director as defined in the DSPE Act. However, the government still invoked its earlier order which had been quashed, to once again make Nageswara Rao Interim Director of the CBI even though it is not the competent authority and does not have any powers to make the appointment, without following the due process laid down in the DSPE Act i.e. appointment based on recommendations made by the high powered selection committee.
Lack of transparency in the appointment process
The Petitioners have also sought direction from the Court to ensure transparency in the process of short-listing, selection and appointment of the Director of the CBI. The lack of transparency in the appointment of the Director, CBI, prevents any public scrutiny of the appointment process and allows the government to exercise undue influence in the appointment process especially at the stage of short-listing of candidates, says petition.
One the Petitioners Anjali Bhardwaj has also drawn the attention of the Court to her RTI applications seeking information about meetings of the selection committee, including the date of meetings, copy of agenda of meetings, copy of minutes of meetings and details of persons who attended each meeting; details of any process adopted by the government to short-list candidates for consideration by the selection committee and a copy of any short-list prepared; and details of any committee set up to prepare such a short-list, since no such information had been proactively disclosed anywhere by the government.
However, government failed to provide any relevant information in response to these applications for information. No details about the minutes of the selection committee meetings or search committee meetings (if any) or the copy of short-listed candidates were provided.