India’s Supreme Court has set aside an October 2018 order and reinstated Alok Verma, the head of the federal Central Bureau of Investigation (CBI). The CBI is India’s equivalent of the American FBI. In October last year, Verma was sent on leave following a furious dispute with his number two, Rakesh Asthana.

Both the officers belong to the elite Indian Police Service (IPS). Asthana is from the Gujarat cadre, the home state of prime minister Narendra Modi and Verma was the commissioner of police in Delhi before being selected for the top job in the CBI.

Senior advocate Sanjay Hegde told the media that the Supreme Court’s decision can be seen as “a victory not for Alok Verma alone, but for independence of investigative agencies in this country.”

However, there was also skepticism over the Supreme Court’s order since it included a rider barring Verma from taking any “major policy decisions” until the statutory select committee that appointed him takes a final decision on his continuing as the CBI Director. This committee consists of the prime minister, the chief justice of India and the Parliamentary leader of the opposition.

Statutory independence for CBI

At the heart of the issue is the statutory independence of the CBI, which flows out of a 1997 Supreme Court order known popularly as the “Vineet Narain judgment“. Narain is a journalist who approached the Supreme Court seeking safeguards that would give the agency independence and protect the CBI director’s tenure. In its new ruling the Supreme Court pointed out that it could neither ignore the Vineet Narain judgment nor the current laws that govern the director’s appointment and tenure.

Interestingly, it also highlighted limits on the power of the government to transfer officials, virtually stating that it cannot be used to remove a director whose tenure is protected by the Supreme Court’s 1997 judgment and the current laws in force.

However, as lawyer Gautam Bhatia noted on Twitter, the Supreme Court “has stuck to its time-honored practice of grand perorations through the course of the judgment, and then diluting the actual, operative order.”

Meanwhile others point out that the Supreme Court led by the chief justice of India did at least go by the book after the petition was filed. The trigger for the internecine war between the CBI’s top two officials was a case that was registered under Verma’s instructions against Asthana. The case alleged that Asthana had taken bribes to settle another case. It also produced a witness who gave a statement in front of a judicial magistrate, making it admissible as evidence.

Asthana hit back by firing off counter allegations against Verma. As the flurry of charges continued, the government stepped in and sent both officials on leave. However, the Supreme Court set up a committee to look into the allegations against Verma, while it adjudicated on the law around his “transfer”. The select committee has been asked to meet within a week to take a decision on Verma and it could opt to send him on leave until his two-year tenure ends on February 2.

Rafale deal

While Verma has been banned from taking any “major policy decisions” he can still direct the agency to register cases. One such case could be India’s Rafale combat aircraft deal with France, which has faced an unrelenting litany of allegations from the Congress party. There are fears within the government that Verma could file a “Preliminary Enquiry” into the deal. Such a move would prove extremely embarrassing for the Narendra Modi government just two months ahead of the general elections.

Delhi Chief Minister Arvind Kejriwal of Aam Aadmi Party in a Tweet also lauded the Supreme Court’s decision. He wrote, “SC reinstating CBI director Alok Verma is a direct indictment of the PM. Modi govt has ruined all institutions and democracy in our country. Wasn’t CBI director illegally removed at midnight to stall the probe in Rafale scam which directly leads to PM himself?”

For months Congress, the principal opposition party, has been leading the charge, revealing several flaws in the Rafale deal and causing considerable discomfort to the Modi government. A preliminary enquiry from the CBI could lend to credence to the opposition party’s charges of corruption against the prime minister.