New Delhi: The Appointments Committee of the Cabinet has, based on the panel recommended by the Committee, approved the appointment of Subodh Kumar Jaiswal as the new director of the Central Bureau of Investigation (CBI) on Tuesday. The selection committee comprising Prime Minister Narendra Modi, Chief Justice of India N.V. Ramana and the Leader of Opposition  Adhir Ranjan Chaudhary had, on Monday, shortlisted Jaiswal, along with Sashastra Seema Bal (SSB) chief K.R.Chandra and special secretary in the Ministry of Home Affairs, V.S.K. Kaumudi. As Jaiswal was the senior-most among the three officers, his choice became easier on the principle of seniority being the default norm of selection.

Jaiswal, an IPS officer and chief of the Central Industrial Security Forces (CISF), has been appointed as the chief of the CBI for a two-year period. He is a 1985-batch IPS officer of the Maharashtra cadre. He has held positions as the Mumbai police commissioner as well as the director general of police (DGP), Maharashtra. In his long career, he has also served the Intelligence Bureau and RAW.

But it is not these factors which gave him an edge over other contenders in the race for the post of CBI director. The credit goes to a little-known order passed by former CJI Ranjan Gogoi on March 13, 2019 to dispose of an application by Prakash Singh, a former police officer and the petitioner in Prakash Singh v Union of India, seeking clarity on a previous order, passed by another bench on July 3, 2018. CJI Ramana, in the selection committee meeting, underlined the significance of this order, as a key factor to eliminate other contenders for the top job.

Although the selection committee had before it a list of six names (which, according to Chowdhury, was preceded by a list of 109 names, followed by two short lists of 10 and six), the shortlisting of three names became possible because the CJI Ramana cited the 2019 order, which made its task easier. Chowdhury had given a dissent note, objecting to the casual approach of the Department of Personnel and Training to the selection process.

The government, which included Border Security Force chief Rakesh Asthana and National Investigation Agency chief Y.C. Modi in the list of 16 names, was perhaps not aware of the Supreme Court’s 2019 order. Or, even if it had been aware, it probably brought in names of several non-eligible candidates to make it appear that Jaiswal’s selection was a result of the democratic exercise of consideration of the inputs of non-government members of the selection committee, who favoured the 2019 order.

Both Asthana and Y.C. Modi – who are to retire on July 31 and May 31 respectively – did not qualify for the post of the CBI director, if the Supreme Court’s 2019 order limiting the choice of empanelled officers to the post of the DGP in a state to those with residual tenure of six months before retirement were to be applied.

The CJI’s reliance on the 2019 order – which the other two members including the prime minister complied with – would mean that the degree of discretion which this government enjoyed before Jaiswal’s selection has now been limited, while appointing persons to sensitive posts which require persons of impeccable character, integrity and professionalism as incumbents.

What is the 2019 order about?

A three-judge bench comprising then CJI Gogoi and Justices L. Nageswara Rao and Sanjiv Khanna decided on March 13, 2019 an Interlocutory Application (IA) filed in the landmark case of Prakash Singh v Union of India. 

In this case, the Supreme Court held in 2006 that the DGP of any state shall be selected by the state government from amongst the three senior-most officers of the department who have been empanelled for promotion to that rank by the Union Public Service Commission (UPSC) on the basis of their length of service, very good record and range of experience for heading the police force. Once a person has been selected for the job, the Supreme Court had held, he should have a minimum tenure of at least two years irrespective of his date of superannuation.

The DGP may, however, be relieved of his responsibilities by the state government acting in consultation with the State Security Commission – also a creation of the Supreme Court in the Prakash Singh case – consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following  his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Different states enacted their Police Acts, or have amended their Police Acts, following the Supreme Court’s judgment in the Prakash Singh case. As all such amendments did not wholly follow the dictum laid down in Prakash Singh, it led to filing of writ petitions in the Supreme Court in 2013 challenging their validity.

On July 3, 2018, the Supreme Court bench comprising then CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud held that all the states shall send their proposals in anticipation of the vacancies to the UPSC, well in time at least three months prior to the date of retirement of the incumbent on the post of DGP; the UPSC shall prepare the panel as per the directions of the court in the judgment in Prakash Singh and intimate to the states; the state shall immediately appoint one of the persons from the panel prepared by the UPSC; and none of the states shall ever conceive of the idea of appointing any person on the post of DGP on acting basis for there is no concept of acting DGP as per the decision in Prakash Singh (emphasis added).

The Supreme Court emphasised in 2018 that an endeavour has to be made by all concerned to see that the person who was selected and appointed as the DGP continues despite his date of superannuation. However, the extended term beyond the date of superannuation should be a reasonable period. “We say so as it has been brought to our notice that some of the states have adopted a practice to appoint a DGP on the last date of retirement as a consequence of which the person continues for two years after his date of superannuation. Such a practice will not be in conformity with the spirit of the direction,” the court held in 2018.

The Dipak Misra bench made it clear in 2018 that the UPSC should empanel persons, as far as practicable, from amongst the people within the zone of consideration who have got clear two years of service. Merit and seniority should be given due weightage, it said, and added that any legislation/rule framed by any of the states or the Central government running counter to the direction shall remain in abeyance to the aforesaid extent.

But the 2018 order led to another problem of sorts. The UPSC, it was pointed out, while empanelling officers for consideration for appointment to the post of DGP, was considering the minimum residual tenure required to be taken into account as two years. In the process, many suitable and eligible officers were being left out, the court was told in 2019 by Prakash Singh himself, seeking effective remedies through is IA.

The Ranjan Gogoi bench held in 2019 that the Prakash Singh judgment had envisaged the appointment of a DGP purely on the basis of merit and insulating the office from all kinds of influences and pressures, by insisting that once appointed, the incumbent should get a minimum tenure of two years of service irrespective of his date of superannuation.

“Neither this court had contemplated recommendation for appointment of officers who are on the verge of retirement or appointment of officers who have a minimum residual tenure of two years. The emphasis was to select the best and to ensure a minimum tenure of two years’ service of such officer who is to be selected and appointed. The Police Acts enacted also do not contemplate any fixed residual tenure for an officer to be recommended for appointment as the DGP of a state,” the bench observed.

“In the above conspectus the object in issuing directions in Prakash Singh, in our considered view, can best be achieved if the residual tenure of an officer, that is, remaining period of service till normal retirement, is fixed on a reasonable basis, which, in our considered view, should be a period of six months,” the bench held.

“This will take care of any possible action on the part of the state government which can be viewed by any quarter as an act of favouritism.  Recommendations for appointment of the DGP on the eve of retirement of the incumbent or of the UPSC in embarking upon a course of action which may have the effect of overlooking efficient and eligible officers will stand obviated by the above direction which we had deemed to be fit and proper to issue,” the Gogoi bench reasoned.

The bench held that the direction that the minimum residual tenure of six months, that is, officers who have at least six months of service prior to the retirement, alone can be empanelled by the UPSC, will hold the field until the validity of the Police Acts in force which provide to the contrary are examined and dealt with by the court in Writ Petition (Civil) No.286 of 2013.

This case Amicus Curie (Harish N.Salve) v Union of India, registered on May 8, 2013 is still pending, and was last listed on July 30, 2018 along with the Prakash Singh case by the Misra bench.

It appears from the case docket that the Supreme Court has been approached by various state governments, whenever the implementation of the guidelines laid down in Prakash Singh case led to various problems. On July 30, 2018, for instance, the Meghalaya government told the Supreme Court that the state DGP was retiring on July 31, 2018 and the state had forwarded the shortlisted names of possible successor to him to the UPSC on July 12, 2018. The Misra bench, after obtaining the consent of the petitioner, Prakash Singh, approved Meghalaya’s proposal for appointing the senior-most IPS officer to hold the post of the DGP as an interim measure till the UPSC processed state’s recommendation within four weeks.

It was at this juncture that Prashant Bhushan, counsel for Prakash Singh, told the Misra bench that clause (f) of  July 3, 2018 order needed to be clarified to avoid problems that might arise in future. The bench gave Bhushan liberty to file an application for clarification, if the occasion arose. Under clause (f), the bench had directed the UPSC to empanel persons for the post of the DGP from amongst the people within the zone of consideration who have got “clear two years of service”.

The 2019 order of the Gogoi bench effectively clarified this order, by laying down that the residual tenure of an officer (remaining period of service till normal retirement) should be a period of six months. This has now become the new norm of eligibility for the post of the DGP, and by the current CJI’s reliance on it, to the post of the Director, CBI as well. For there is no reason to limit the application of the rule laid down in 2019 to the facts of that case, especially if the principle involved is capable of universal acceptance and application.

Flouting of the SC order in Prakash Singh case

The former CJI, S.A. Bobde, as a member of the selection panel on February 3, obviously failed to oppose the interim arrangement which enabled Sinha to look after the duties of the CBI director, even as the government took its own time to convene a meeting of the selection committee to finalise the name of Shukla’s successor.