W.P. (C) 54/2019
Petition challenging the appointment of M Nageshwar Rao as Interim Director, CBI

Summary :

To uphold the independence and autonomy of the premier investigating agency of the country, Central Bureau of Investigation, Common Cause has filed a petition to quash the order dated 23.10.2018, issued by the Appointment Committee of Cabinet, that handed over the charge of Director CBI to Mr. Nageshwar Rao. 

The Delhi Special Police Establishment Act provides for the constitution of the CBI and lays down the procedure for the appointment of the Director of the CBI. The DSPE Act as amended by the Lokpal and Lokayuktas Act, 2013 provides for the appointment of the CBI, Director by a high powered selection committee which does not have a preponderance of the government and its representatives. The committee consists of the Prime Minister, the Leader of Opposition and the Chief Justice of India or any Judge of Supreme Court nominated by him.

This committee has again been bypassed by the centre when Nageshwar Rao was appointed as the Interim Director of CBI. The order dated January 10, 2019 states that the Appointment Committee of the Cabinet has approved the appointment of Nageshwar Rao “as per the earlier arrangement”. However, this earlier arrangement i.e. Order dated October 23, 2018 making Shri Nageshwar Rao interim CBI Director, had been quashed by this Hon’ble Court vide order dated 08.01.2019 as it was made in violation of the procedure for appointment of CBI Director as defined in the DSPE Act. 

Common Cause has prayed for the meeting of a High-Powered Committee under Section 4A of the DSPE Act to take a decision on the appointment of Interim Director, CBI. 

On mentioning the matter on January 16, 2019, the matter was taken on board.

The matter was listed on January 21, 2019, to be heard by a bench headed by the Chief Justice of India, Ranjan Gogoi and Justice Sanjiv Khanna. 

On January 21, 2019, the CJI decided to recuse from sitting on the bench considering this matter since he will also form a part of the High-Powered Selection Committee.

On January 24, 2019, Justice Sikri cited personal reasons and recused himself from the bench hearing the matter.

On January 31, 2019, Justice NV Ramana cited personal reasons and recused himself from the bench hearing the matter. 

On asking further questions, he said that he has attended Rao's daughter's wedding, is acquainted with his son-in-law and they hail from the same state. 

Dushyant Dave requested the matter to be listed the next day with another bench. The Registry was directed to place this matter before the Chief Justice, for listing of this matter before an appropriate Bench.

As requested, the matter was listed on February 1, 2019. The new bench consists of Justice Arun Mishra & Justice Navin Sinha. The Attorney General prayed that the matter be listed on February 6, 2019 as the High-powered Committee was supposed to meet for the appointment of CBI  Director on the same day. 

On February 6, 2019, the bench consisting Justice Arun Mishra and Justice Navin Sinha heard and reserved the matter institued by Common Cause.

In the Contempt Petition (Crl.) Nos. 1/2019 and 2/2019, the bench heard the Attorney and Solicitor Generals of India, K.K. Venugopal and Tushar Mehta respectively, who had filed contempt charges against Mr. Prashant Bhushan. Mr. Bhushan’s act of discussing certain aspects of the ongoing case on twitter, led to two contempt petitions being filed against him by the Attorney General and the Government of India. The Court is set to hear the matter next on March 7, 2019.

On February 18, 2019, due to unavailability of Justice Arun Mishra, the bench did not pronounce the judgment on this matter. It has been listed to be heard on the next day, February 19, 2019.

On February 19, 2019, the Court declared that since regular Director has been appointed, the main prayer of the petitioner has been satisfied and found no justification to continue with the petition in the aforesaid circumstances. The Court also indicated that if due process has not been followed in the appointment, it is always open to any incumbent and the appointment could be questioned in accordance with law.

During the hearing on February 1, 2019, the High Powered Selection Committee placed the minutes of the meeting before the bench. The Committee had, by majority, decided to authorise the Government of India to appoint an Interim Director while passing a resolution. In light of this, any questions raised against the wrongful appointment of Interim Director were dismissed.