Observing that it cannot pass a blanket order on appointment of CBI director, the Supreme Court on Wednesday asked the Centre to respond to the submission of an NGO that there should not be an ad-hoc arrangement and the existing chief should be allowed to continue till a successor is appointed after his tenure.
A bench comprising Justices L Nageswara Rao and BR Gavai asked Attorney General KK Venugopal to address the court on the submission made by NGO Common Cause.
The top court was hearing the NGO which had filed the plea concerning the appointment of the regular CBI director before the appointment of the present chief.
At the outset, the bench said the matter has become infructuous as the appointment has already been made.
Attorney General KK Venugopal told the bench that an appointment to the post of CBI director was made on May 25, 2021, by the committee of which the Chief Justice of India is also part.
Advocate Prashant Bhushan, appearing for the NGO, submitted that this is a regular phenomenon that is happening again and again despite the orders of the top court.
Bhushan said that his first prayer in the plea was an appointment to the post of CBI director which has been done.
He said the second prayer seeks a direction to the Centre to initiate and complete the process of selection of the CBI director well in advance, at least one to two months before the date on which the vacancy to the post is about to occur.
He said that despite the categorical order of the court in the Prakash Singh case (relating to DGPs of states), "we have to move again and again over the same issue."
"The Centre knew that the CBI director was retiring in February. There was no COVID at that time and they could have easily initiated the process of selecting the new director but they didn''t do that. When we filed this plea, they took a plea that COVID is going on. This is happening repeatedly and they are flouting orders of this court. This has to stop," Mr Bhushan said.
The court asked Mr Bhushan to file another writ petition if this happens again.
"We can't pass some blanket orders. File contempt petition. Why should we reiterate what we said in the Prakash Singh case? If there is another cause of action you file a plea then. How can we pass an order when there is no lis before us. Now we have to anticipate and pass directions," the bench said.
Mr Venugopal told the court that the meeting of the committee convened to appoint the director of CBI could not be convened due to the unavailability of the Leader of Opposition who sent a letter saying he would not be available till May 2.
Keeping in view the convenience of members of the committee the meeting was held later and the appointment made, the AG said.
The top court told AG that Bhushan is submitting that appointment of the CBI director on an adhoc basis or additional charge is not permissible because of Prakash Singh's judgement.
"He (Bhushan)says the appointment of CBI director should be initiated two months in advance so that a situation of ad hoc appointment does not arise," the bench said while asking the AG to respond.
The AG said the suggestion seems to be reasonable but when an extraordinary situation arises there may be some delay.
Responding to Mr Bhushan's submissions, Venugopal said that the delay in regular appointment happened as the High Powered Committee, to appoint CBI director, could not meet due to the COVID-19 pandemic.
The AG said the committee 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 the committee, and in such exceptional circumstances, ad-hoc appointments are made, the AG said, adding that ad-hoc appointments should be allowed in such exceptional circumstances.
Bhushan said that 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 the government.
"Would you accept the Bhushan's submission that the existing director should continue in such exceptional circumstances?", the bench asked Mr Venugopal.
The AG then sought time to respond to this submission and the court posted the matter for hearing on October 25.
The NGO had contended that the appointment of a regular CBI director as per the statutory law is necessary for upholding the rule of law and for enforcement of the rights of citizens under articles of the Constitution dealing with equality before law and protection of life and personal liberty.
Referring to an earlier judgement of the court, the plea had said the top court had directed that Director Generals of Police (DGP) in the states should have a minimum tenure of at least two years irrespective of his date of superannuation.
DGPs are the heads of the police force in states and CBI is the premier central investigating agency. Both the DGPs as well as the CBI director have a minimum tenure of two years, as per the existing law of the land, it had said.
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