Should Existing CBI Director Continue If New Appointment Gets Delayed? Supreme Court Seeks Centre's Response

The Supreme Court on Wednesday sought the response of the Central Government to an argument made by the NGO 'Common Cause' that if the appointment of the new CBI Director gets delayed, the existing Director should be allowed to continue instead of making an ad-hoc appointment of an Acting Director.

A bench comprising Justices L Nageswara Rao and BR Gavai asked the Attorney General for India KK Venugopal to respond to the argument made by Advocate Prashant Bhushan for Common Cause.

Common Cause had filed the writ petition in March this year against the appointment of an interim CBI Director in February, after the retirement of the incumbent. Later, in May, Subodh Kumar Jaiswal was appointed as the CBI Director for two years. In view of the appointment of regular director, the bench asked Bhushan if the petition has not become infructuous.

However, Bhushan replied that he was pressing for the other reliefs in the writ petition seeking categorical directions to stop the practice of appointment of Acting Directors for CBI. He stressed that the Supreme Court in the Prakash Singh case has barred the practice of appointment of Acting CBI Directors and Acting DGPs. However, those directions are being repeatedly violated, he submitted.

"In 2018 this happened. They appointed the regular director only after we moved the court. This happened again in 2019 and this year", Bhushan submitted.

Asking why should the Court reiterate its directions, Justice Rao observed that Bhushan can move contempt application if there is a future violation.

In reply, Bhushan submitted that there should be directions to start the appointment process at least two months ahead of the retirement of the incumbent, so that ad-hoc appointments can be avoided.

"If there is a violation, the person in charge should be held for contempt. They are getting away keeping an acting director for several month. The only way to stop is by issuing a clear and clean direction", Bhushan urged.

Responding to Bhushan's submissions, the Attorney General stated that the delay in regular appointment happened as the High Powered Committee could not meet due to COVID-19 pandemic. The AG pointed out that the HPC consists of the Prime Minister, the Chief Justice of India(or his nominee judge) and the Leader of Opposition. At times, there might be difficulties in the meeting of HPC, and in such exceptional circumstances, ad-hoc appointments are made, the AG explained.

The AG submitted that ad-hoc appointments should be allowed in such exceptional circumstances.

"Mr.Bhushan, if we say there can be no ad-hoc appointments except in exceptional circumstances, you have an objection?", Justice Rao asked.

"In exceptional circumstances, the existing director has to continue, because the existing director is appointed by the HPC, but the acting director is appointed by government", Bhushan replied.

"Would you accept the submission of Mr.Bhushan that the existing director should continue in such exceptional circumstances?", Justice Rao asked the AG.

The AG said that he needs time to respond to this submission. Accordingly, the case was adjourned to next Monday, October 25.

Case Title : Common Cause v Union of India| WP(c)

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