File photo of Rakesh Asthana from his days as commissioner of police, Surat, Gujarat. Credit: Rakesh Asthana’s public Facebook page
New Delhi: The Supreme Court’s judgment upholding the official selection committee’s choice of Rakesh Asthana as special director of the Central Bureau of Investigation hinges on a key assumption that appears particularly unconvincing.
The NGO, Common Cause, had gone to court challenging Asthana’s appointment on the grounds that his name had figured in a 2011 diary seized from Sterling Biotech – a company being probed by the CBI for money laundering – as the recipient of payments worth Rs 3.8 crore.
The diary in turn became the basis for the CBI to file an FIR in August 2017against the firm’s promoters and “other unknown public servants and private persons.” Asthana was not named in the FIR but was clearly the subject of an ongoing investigation by his own agency.
During the course of the hearings before the court, it emerged that the CBI director had also raised the same concerns with the selection committee, and had even submitted a secret note detailing links between Rakesh Asthana and Sterling and its subsidiaries.
Curiously, the CBI director’s note was disregarded by the selection committee mainly on the astonishing ground that the “entries … relate to one Rakesh Asthana … and there is no finding in these papers that the person mentioned therein is the same person under consideration for appointment.”
Drawing on the official minutes of the selection committee meeting of October 21, 2017, the Supreme Court bench of Justice R.K. Agrawal and Justice Abhay Manohar Sapre, has gone along with this idea that there may actually be two Rakesh Asthanas out there and that the one mentioned in the CBI director’s note may not be the same person whose appointment was being challenged. The judgment notes, in paragraph 16:
What will the CVC do now if it emerges that the details in the note the CBI director handed over to the selection committee were indeed robust and “verified”? If chief vigilance commissioner Chowdary, under whose authority the request for information has been sent to the CBI, is seeking this information now, this means he still harbours a doubt about the identity of the ‘Rakesh Asthana’ mentioned in the Sterling diaries. Why then did he push through the “unanimous” selection of Asthana on October 21?
Chowdary’s own appointment, incidentally has also been challenged in the Supreme Court, with Prashant Bhushan questioning his eligibility for the key watchdog position given his failure – as member, investigations, in the income tax department – to act on information of alleged payoffs to politicians contained in the Birla-Sahara diaries .
The Supreme Court’s judgment is also erroneous in its assumption that a unanimous decision of the selection committee cannot be questioned. The court is competent to review the selection committee’s decision irrespective of whether it was backed by consensus or by a majority. And its acceptance of the selection committee’s argument that Asthana’s record must be good because the CBI had itself recommended his promotion to additional director in July 2017 ignores the fact that the FIR in the Sterling case was filed only in August 2017.
Given the doubts, the Supreme Court could have at least asked the selection committee – comprising of the chief vigilance commissioner, the two vigilance commissioners, the Union home secretary and the secretary of the Department of Personnel and Training – to reconsider the matter after it receives a categorical finding by the CBI director as to the identity of the ‘Rakesh Asthana’ mentioned in the seized diary.
Tuesday’s judgment will, therefore, remain unconvincing, both by the Supreme Court’s own standards of ensuring probity in public life and the requirements of institutional integrity.-The Wire