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:
“(i) The Director, CBI had furnished
a secret/confidential letter dated 21.10.2017 enclosing an unsigned note on M/s
Sterling Biotech Ltd. and related entities and that the entries in the note
referred, inter alia, to one Shri Rakesh Asthana.
(ii) The committee had considered the
note and the matter was also discussed with the director, CBI.
(iii) The committee found that there
are no findings in the papers that the person mentioned therein is the same
person under consideration for appointment and there is nothing about the
veracity of the contents of the document.” (emphasis added)
In paragraph 18 of its judgment, the
bench held as follows:
“We cannot question the decision
taken by the selection committee which is unanimous and before taking the
decision, the director, CBI, had participated in the discussions and it is
based on relevant materials and considerations. Further, even in the FIR filed
by the CBI, the name of Shri Rakesh Asthana has not been mentioned at all.
Thus, lodging of FIR will not come in the way of considering Shri Rakesh
Asthana for the post of special director, after taking into consideration his
service record and work and experience.”
It is clear from the above that the
court, like the selection committee, had doubts over whether the Rakesh Asthana
mentioned in the seized diaries was the same Rakesh Asthana being recommended
for the job of CBI special director. The bench gave the benefit of doubt to
Asthana the candidate, though it does not categorically assert that the two
Asthanas are different.
What is surprising is that both the
selection committee and the bench did not think it necessary to erase the doubt
with facts before reaching a final decision. Instead, the committee as well as
the bench simply brushed aside all objections on the ground that a doubt cannot
be a hindrance to Asthana’s selection.
A question of fact, unlike that of
law, can be easily answered by checking. If the selection committee had doubts
about the identity of the Rakesh Asthana who is mentioned in the Sterling
diaries, it could have asked the CBI itself to provide a categorical answer.
After all, the CBI is probing the diaries, and the FIR has been registered by
it.
If the Rakesh Asthana mentioned in
the diary is different from the one considered by the selection committee, the
CBI director would not have submitted the unsigned note, expressing his doubts,
for the consideration of the committee. Assuming that the director submitted
the note as an exercise in abundant caution, nothing prevented the selection
committee from directly checking with Asthana himself; his denial, if any,
could have been recorded in the minutes.
But the selection committee let the
doubt linger on even after the appointment. And the benefit of doubt went to
the appointee, as if the doubt was so complicated that it could not have been
resolved promptly, before the committee concluded its deliberations. Assuming
that the committee felt it would have meant some delay, it could have opted for
a brief adjournment – to let the CBI director investigate this aspect of the
matter and firmly establish the identity of the Asthana mentioned in the diary.
One can understand that the selection
committee was not diligent enough to undertake this exercise before it
recommended Asthana. But what about the Supreme court bench, when it was
confronted with this doubt and treated it as if it did not matter? How could
the bench assume that a doubt on facts – which is easily verifiable – will be
cleared if the authorities concerned make no effort to verify it?
It now emerges that the Central
Vigilance Commission finally wrote to the CBI on November 9, 2017 – nearly
three weeks after selecting Asthana – seeking a report on the “authorship” and
provenance of the note that the CBI director had handed over to the selection
committee on October 21, 2017. The CVC letter also asks “whether any
verification has been carried out on the documents referred in the note by the
CBI” and requests copies of those documents as well.
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
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