On January 23, the Supreme Court bench of Justices R.K. Agrawal and Abhay Manohar Sapre dismissed a review petition filed by NGO Common Cause seeking reconsideration of its order delivered on November 28 last year.

The order had rejected the NGO’s prayer that the appointment of Rakesh Asthana as the Special Director, Central Bureau of Investigation (CBI), be quashed, as being illegal, arbitrary, mala fide and in violation of the principles of impeccable integrity and institutional integrity, as laid down by the Supreme Court in a case in 2011.

The Court had held, in 2011, these attributes to be sine qua non for appointment to a key position in an integrity institution such as the CBI. It said that strict adherence to the letter and spirit of the statutory law in such appointments is necessary for upholding the rule of law and for enforcement of the rights of the citizens under Article 14 and 21 of the Constitution.

Asthana’s name had figured in a 2011 diary seized from Sterling Biotech – a company being probed by the CBI for money laundering – as the alleged recipient of payments worth Rs 3.8 crore.

The diary, in turn, became the basis for the CBI to file an FIR in August 2017 against the firm’s promoters and “other unknown public servants and private persons”. Asthana was not named in the FIR but was presumably the subject of an ongoing investigation by his own agency.

During the course of 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.

Drawing on the official minutes of the selection committee meeting of October 21, 2017, the Supreme Court bench of justices Agrawal and Sapre had endorsed the idea that there might actually be two Rakesh Asthanas out there, and that the one mentioned in the CBI director’s note might not be the same person whose appointment was being challenged.

New material in the review plea

In the review petition, Common Cause brought to light new material that clearly showed that the Central Vigilance Commissioner (CVC) had not formed a final opinion on the matters raised in the note of the CBI director by the time the selection committee met.

The CVC addressed a letter to the CBI on November 9, 2017, seeking further information about the director’s note opposing Asthana’s appointment. The CVC sought a report from the director, CBI, on the authorship of the unsigned note given by the CBI director in the selection committee meeting along with his own letter. In this letter, the CVC had also enquired whether any verification was carried out on the documents referred in the note given by the CBI director and sought copies of the same.

The review petition pointed out that even 20 days after the selection committee meeting had recommended Asthana’s promotion, the CVC was seeking further information regarding his role. It alleged that the minutes of the selection committee meeting produced by the counsel for the Centre were based on incorrect facts in order to mislead the Supreme Court into believing that CVC had verified the documents, and had found nothing on the same.

The review petition claimed that the CVC selection committee recommended Asthana without even the most rudimentary enquiry/probe into the contents and the authorship of the note, produced by the CBI director at the meeting. The selection committee was not even aware if CBI had conducted any verification of the documents mentioned in the note, and what the result of such verification, it had further alleged.

The petition also alleged that the Attorney General K.K.Venugopal, representing the Centre, had concealed the November 9, 2017, letter from the CVC to the CBI. The letter contained the unsigned/secret note given by the CBI director in the selection committee meeting from the Supreme Court during the hearing.

The selection committee had met on October 21 and was chaired by the CVC K.V. Chowdary and attended by two vigilance commissioners, the secretaries of the Home Ministry and Department of Personnel and Training, and the CBI director. The CBI director furnished “a secret/confidential letter” dated October 21, 2017, in the meeting enclosing a note “on the Sterling Biotech Ltd.& related entities”. It was mentioned by the CBI director that “entries in the note refer, inter alia, to one Shri Rakesh Asthana”.

Based on CVC’s November 9 letter to the CBI, the review petition contended that the selection committee was not given full opportunity to examine the nature of evidence against Asthana.

Besides, Common Cause argued that the November 28 order did not deal with the issue of institutional integrity enunciated by the Supreme Court in the CVC case in 2011. The investigating officers in the Sterling matter would not be able to freely and fairly investigate the role of their hierarchical superior, who is known to be close to Sandesara/Sterling Biotech Limited and therefore, the institutional integrity of CBI would be compromised, the petition underlined.

Common Cause’s review petition had also pointed out that the November 28 order is silent on the issue of employment of Asthana’s son with Sterling Biotech and the pre-wedding party of Asthana’s daughter, which was held at a farm house owned by Sandesara. The order also chose to ignore the non-filing of property details, which is mandatory for vigilance clearance for any appointment/empanelment/promotion etc.

On January 23, when the review petition was listed before the bench of justices Agrawal and Sapre, in their chamber, by circulation, it held in its order, without any reasoning :

“Having carefully gone through the review petition, the order under challenge and the papers annexed therewith, we are satisfied that there is no error apparent on the face of the record, warranting reconsideration of the order impugned. The review petition is, accordingly, dismissed.”

Four judges vindicated?

The listing of the Common Cause’s petition challenging the appointment of Rakesh Asthana before the bench of justices Agrawal and Sapre, was one of the issues, alluded to by the four senior-most puisne judges, in their press conference, held in New Delhi, on January 12, drawing to the nation’s attention, the threats to judicial independence, caused by the arbitrary listing of matters by the Chief Justice of India Dipak Misra, as the master of the roster.

The Common Cause’s writ petition was first listed before justices J. Chelameswar and S Abdul Nazeer on November 9, when it directed: “List the matter on Monday, the 13th November, 2017 before 3rd Court.”

On November 13, at court no. 3, justice Ranjan Gogoi, sitting with justice Navin Sinha, could not hear the matter because the latter recused himself from hearing the case. The bench, however, had directed listing of the case on November 17, before a bench without justice Sinha.

On November 17, a three-judge bench presided by justice Gogoi sat at court no. 3. The other judges of this bench were justices Rohinton Fali Nariman and Sanjay Kishan Kaul. The Rakesh Asthana matter ought to have been listed before this bench. Instead, it was listed at court no. 8.

The listing of sensitive matters before “preferred benches” by the CJI, in his administrative capacity as the master of the roster, was one of the grievances articulated by the four judges in their letter to the CJI, and later at the press conference. The denouement in the Rakesh Asthana case, despite convincing grounds cited by the petitioner, makes the four Judges vindicated in their concerns.

The dismissal of the review petition in this case may indeed be a routine exercise, as the same judges who heard the main case, also hear the review petition, and the outcome is likely to be the same, as the judges hear the petition in their chambers, by circulation, and not in open court. Last week alone, the Supreme Court’s different benches dismissed more than 87 review petitions in this manner.

Yet, the question remains of why this matter went before the bench it did.