In August, 1829 an evening paper in Georgia, USA published a piece with the title – ‘A Successful Operation’. It described an amputation of the hip joint performed by one, Dr. Liston. The amputation went according to plan. However, post-surgery complications led to the death of the patient. The piece supposedly contains the first usage of a phrase of wry medical humour – “The operation was successful, but the patient is dead.”
It’s a phrase Alok Verma, the Director of the CBI will understand. Mr. Verma had been divested of his powers by the Central government in October last year. On Tuesday, the Supreme Court reinstated Mr. Verma to office. However, the Court directed him to desist from taking any “major policy decision”, till the committee constituted under Section 4 of the Delhi Special Police Establishment Act took a decision on his future.
The Issues before the Court
The genesis of the dispute lay in three orders that were passed in the early hours of October 23, last year. The first two orders divested Mr. Verma of the powers and functions of the Director of the CBI. The third appointed M. Nageshwar Rao as interim director of the agency.
All three orders were challenged before the Supreme Court. The arguments of the petitioners were simple and were formulated around the DSPE Act, the CVC Act and the Court’s previous judgment in Vineet Narain’s case. The petitioners argued that Section 4A(1) of the Act provides that the Director of the CBI is to be appointed on a recommendation of a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Section 4B states that the director shall have a minimum term of two years and that he or she shall not be transferred, except with the prior consent of the committee. The counsel for Mr. Verma argued that the word ‘transfer’ used in the act had to be interpreted widely and had to include any attempt to divest the Director of his office.
In Tuesday’s judgment, the Court agreed with this proposition. It held that neither the gvernment nor the CVC had the power to interfere with the tenure of the CBI director in any manner. Mr. Verma was directed to be reinstated to office. There is no doubt, that the judgment of the court is based on the correct interpretation of the law. However, major parts of the Judgment and the hearings leading upto it are a cause of concern.
The problems with the judgment
The court’s jurisdiction over the dispute should have ended with it reinstating Mr. Verma to office. This was the only issue contested between the parties. The court however, did not stop at that. It went on to refer the matter to the committee to be constituted under Section 4A (1) to decide on whether Mr. Verma’s could continue in office.
None of the parties before the court had asked that this be done. The court did not put this proposition to the counsel – who could have argued in favour of the course taken by the court or against it. Under the scheme of the DSPE Act, the court did not have the power to refer the matter to the committee in the first place. Yet, the court did so. As an interim measure, it also directed Verma to desist from taking any “major policy decision”, till such time as the committee came to a decision.
The course adopted by court leads to contradictions in the judgment. At paragraph 36, the court holds that no authority of the state has the power to take interim measures against the director. However, at paragraph 40, the court does precisely this – it restrains Mr. Verma from taking any major policy decisions. This balancing act is more characteristic of a panchayat, than of the highest court of the land.
The second issue with the judgment is institutional – and has to do with how the verdict was arrived at. Mr. Verma’s case was first heard on the 26th of October. The court directed that an enquiry into the allegations made against him be carried out in two weeks. It also directed that all the decisions taken by Mr. Rao, be submitted before the court in a “sealed cover.” A series of orders calling for information in “sealed covers” followed.
None of this information was useful in the end. The court decided the matter purely on the question of law. However, with Verma’s tenure coming to an end later this month, vital time was lost. One would recall that on the 20th of November, the court had adjourned the matter because the judges thought that some of the information submitted before them in a “sealed cover” had been leaked to the media.
The court resorting to sealed covers is problematic. India follows a system of “open justice” – all the parties and the public at large have the right to know the proceedings inside a courtroom. There is no provision in procedural law allowing the usage of sealed covers. The Supreme Court rules have no such provision either. Yet, in recent times, the court has relied on them in numerous cases of immense public importance.
For example, in the case concerning the updation of the National Register of Citizens in Assam – a case that concerns the fate of millions of people, the court has on multiple occasions directed the state coordinator to submit information in a sealed cover. On one occasion, it even refused to give access to one of these covers to the Attorney General. The sealed cover was also resorted to in cases involving the Bhima Koregaon arrest and the petitions seeking an enquiry in the Judge Loya death. In the ‘Rafale’ judgment, the court relied on similar sealed cover information to hold that the CAG report on the pricing of the aircraft had been submitted to the Public Accounts Committee of the Parliament. It was later found out that no such report existed.
For all the euphoria surrounding it, the judgment and the hearings leading to it are a study in all that is wrong with our Supreme Court today – a Court where procedure is routinely thrown out the window and statutory law is treated as a minor inconvenience, that can be gotten over with the court’s power to do ‘complete justice’. These are issues that practitioners in the Supreme Court are all too familiar with. The judgment itself does not give a quietus to the issue. Instead, the ball has rolled into the lap of the Committee, which is scheduled to meet later today.
The manner in which the court arrived at this verdict raises serious questions about procedural justice in the highest court of the land. This takes us back to 1829 and the phrase: operation successful, patient dead.
The writer practices in the Supreme Court. He tweets @parahoot