A crucial matter regarding the appointment process of the Central Bureau of Investigation director is listed before the Supreme Court. The petition flags two issues:
- it challenges the appointment of the incumbent CBI director, M. Nageswara Rao, as being illegal as he was unilaterally appointed by the government, bypassing the selection committee, and
- it highlights the complete lack of transparency in the appointment process.
As per the provisions of the law governing the appointment of the CBI director (the Delhi Special Police Establishment Act), the selection committee consists of the prime minister, the leader of opposition and the chief justice of India or a judge of the Supreme Court nominated by him. The composition of the selection panel has been an issue of public debate and has evolved over the years to its present composition.
The post of the director is crucial – being the head of the organisation, he/she supervises all the work in the CBI and is responsible for the constitution of investigating teams for probing cases. To prevent the government from exercising undue control over the CBI by influencing the selection of the Director, the current composition of the selection committee was laid down.
The government, however, completely bypassed the selection committee and on January 10, 2019, unilaterally appointed Rao as the interim director when Alok Verma was removed from the post. The order states that the appointment is “as per the earlier arrangement”. This is rather strange, to say the least, as “the earlier arrangement” which it relied upon had already been examined by the Supreme Court, found to be illegal and quashed.
In October 2018, a little over three months ago, when the government had earlier removed Verma
as the director and had simultaneously appointed Rao as the acting director, the matter had been taken before the Supreme Court. The court held that the government had no powers to appoint the CBI director unilaterally, without following the procedure laid down by law which requires the selection to be on the basis of the recommendations of the high powered selection committee.
Yet, just two days after the judgment, the government, once again without following the procedure laid down in the law and completely bypassing the selection committee, appointed Rao as the acting director.
Other than the issue of Rao’s appointment without following due procedure, the petition also raises the larger systemic issue of transparency in the appointment process. In appointments to vital institutions, especially those tasked with oversight of the state, governments attempt to exert influence at the stage of shortlisting and selection of candidates.
Even in cases, such as the CBI, where the issue of government preponderance and its representatives in the selection committee has been addressed, the members of the committee are usually presented with a pre-selected shortlist of names and the final selection is made from that pool.
The process of shortlisting has been adopted as it provides a pragmatic solution to the problem of the ability of the selection committee to examine hundreds of applications/eligible candidates. However, the shortlisting, usually done by the concerned department or a committee set up by the government, enables the government to control the selection process, even before it reaches the designated selection committee.
Only greater transparency can bring to light cases of arbitrariness and departure from established procedures in the appointment process. Transparency, and resulting public scrutiny, act as a crucial system of checks and balance.
Transparency must be enshrined at every stage of the selection process – including disclosure of the eligibility criteria, the criteria adopted for shortlisting from among the eligible candidates and the list of shortlisted candidates, and finally the names of the selected candidates and the basis of their selection.
The minutes of meetings of the search and selection committee provide valuable insights into the decision-making process. Disclosure would enable scrutiny of the integrity of the entire process and a verification of whether it was done as per the established procedure.
Recent disclosures by the government regarding the process of appointment of information commissioners underscore the importance of public access to this information. A bench headed by Justice A.K. Sikri, in an ongoing case, directed the government to make the process of selection of information commissioners transparent by uploading the relevant files to the website.
A perusal of the files shows that even though the vacancies in the posts of information commissioners were advertised and several hundred applications were received, the search committee consisting of senior bureaucrats arbitrarily decided to look beyond
those who had applied. This decision which had no legal backing, was also a violation of the procedure of appointment which the Central government submitted to the Supreme Court, wherein it stated that the search committee is only to shortlist from among the applications received. Ultimately one of the commissioners appointed was an ex-bureaucrat who had never applied for the post
In the case of the CBI director, in conformity with a Supreme Court judgment, the IPS officers of the senior-most four batches in service on the date of retirement of the (incumbent) director, CBI have to be considered while filling up the post. However, the mechanism of shortlisting and selecting candidates, including the basis of decision-making, needs to be disclosed to enable public scrutiny.
It remains to be seen whether the Supreme Court bench headed by Justice Sikri takes the progressive stance in this case that it adopted for the appointment of information commissioners – of enabling public scrutiny by directing the government to publicly disclose relevant information about short-listing and selection of the CBI director.