February 07, 2020
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A Judicial Tightrope

The CBI director, like Caesar's wife, should be above suspicion

A Judicial Tightrope

IT shows all signs of being a turbulent tenure. Unlike his predecessor, CBI director R.C. Sharma has managed to walk the political tightrope with some dexterity. However, the judicial onslaught continues unabated. A fortnight after he took over the reins of the agency, an irate Supreme Court bench lashed out at him during a hearing of the Jain hawala case, for his 'unbecoming' press statements regarding the agency's policy towards arrests and raids.

And that was just for starters. While a chastened Sharma has steered clear of the media since then, his detractors clearly have not given up. In a fresh salvo, last fortnight, a two-judge bench of the Delhi High Court—comprising justices Devinder Gupta and Dalveer Bhandari—reacted sharply to a public interest litigation questioning Sharma's appointment and issued notices to both the Central government and the newly-appointed director. In what is possibly another first to his credit—Sharma is the only CBI director to be given the post after super annuation—the 1963-batch Haryana cadre officer has been asked to explain his stand in all the politically sensitive cases which he monitored in his six-year stint in the agency.

While Sharma has attempted to clear the air in a detailed affidavit, the government will be hard-pressed to explain Sharma's appointment as director when he had retired on January 31 this year and was technically on a one-year extension. Though insiders in the Department of Personnel & Training (DOPT), who moved the proposal, say that such appointments have conventionally been the prerogative of the prime minister, the government's rules—as quoted in Swamy's Manual of Establishment and Administration—are categorical.

According to the rules, "no government servant who is on extension of service after the prescribed date of retirement should be promoted during the period of extension of service". In fact, even while granting an extension, the government is supposed to be guided by the principle of public interest and also to satisfy two conditions: that the other officers are not ripe enough to take over the job; and that the retiring officer is of outstanding merit.

It is on the last aspect that the litigants—the Centre of Public Interest Litigations—have sharpened their knives. Says counsel Prashant Bhushan: "You cannot appoint a person lacking in integrity to a sensitive post like director, CBI.

Sharma's past conduct in a number of sensitive investigations under his charge leave no doubt that he lacks integrity." Sharma faces a volley of charges: of scuttling the Bofors inquiry and the HDW probe and of going slow on the St Kitts and the Airbus 320 cases. In defence, the CBI spokesman, S.M. Khan, says: "In Bofors, the main principle of law that assistance will be given to the CBI was decided only on July 23, 1993, by the Federal Court of Switzerland when all the seven appeals were dismissed. This was possible only because of the persistent efforts made by R.C.Sharma who was then supervising the investigation." 

Unfortunately for Sharma, some charges may stick. For instance, in the St Kitts case, he had, as joint director, put a noting on the file saying that "no case was made out against former prime minister Narasimha Rao". And even though his stand may have been vindicated when magistrate Ajit Bharihoke's court discharged Rao, the fact remains that the agency's law officers have now proposed moving a higher court against the order. Equally strong is the allegation in CBI circles that Sharma actually did his best to prevent the agency from investigating Congressmen Satish Sharma and Bhajan Lal in the Jharkhand Mukti Morcha bribery case. But, at this stage, what is likely to be far more damaging for the director is the Home Ministry-ordered inquiry into the CBI's action of seeking the help of the army for arresting former Bihar chief minister Laloo Prasad  Yadav in the fodder scam. The inquiry report, which is presently being prepared by A.P. Durai, DG, Railway Protection Force, will include details of log entries of wireless messages and telephone calls made by the CBI team in Patna to the director. Sharma's stand is that the decision to seek army help was taken solely on the high court's "oral orders". However, according to reports, the CBI SP, V.S.K. Kau-mudi, had actually obtained Sharma's consent before moving the court. 

Sharma had been opposed to the conspiracy case against Laloo from the initial stages—it is reliably learnt that he openly condemned the chargesheet on the grounds that the evidence was too thin. And this fact has only reinforced the allegation that his appointment was politically motivated. For now, additional solicitor general Manu Abhishek Singhvi has advised the CBI director not to file any affidavit but to seek a quashing of the petition. The heat may be off temporarily till the case comes up for hearing on August 20, but public interest litigations, as Sharma may have learnt with discomfiture, seldom die down.

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