Vice-President Dhankhar Questions CJI’s Role in CBI Director Appointment

The Chief Justice of India (CJI) has in the recent past been questioned by Vice-President Jagdeep Dhankhar on its role in the appointment process of the Director of the Central Bureau of Investigation (CBI). His words point at one of the continuing controversies on the dilemma of taking balance of powers between the executive and judiciary in India. The article shall discuss the validity of the legal framework in appointment of the CBI Director, and the constitution of the utterances of the Vice-President who is following the letter and the law.

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The Role of the CBI Director: The Crucial One

Central Bureau of Investigation Director has a pivotal role to play in the law enforcing system of India. The CBI is the best investigation department which investigates cases of corruption, economics related crime and other severe crimes. Impartiality and independence of the CBI Director are viewed as essential elements in upholding the integrity of investigation and respect of the rule of law.

Legal Foundation of Appointment

Under the terms of the Delhi Special Police Establishment (DSPE) Act, 1946 appointment of the CBI Director is to be made. The Lokpal and Lokayuktas Act, 2013 and the Central Vigilance Commission (CVC) Act, 2003 brought major changes to this Act. Such amendments formalized a review process that became somewhat structured in the selection process that improved the functional independence of the CBI Director and minimized executive discretion.

The Selection Committee

As per amended DSPE Act, the CBI Director is rostered by the Central Government on the advice of high-powered Selection Committee. This committee is having statutory mandate to it and it involves three important members:

• The Prime Minister: Who is the chairperson of such committee.
• Leader of the Opposition of the Lok Sabha: Or in a case where no such recognized Leader of the Opposition exists, the leader of the single largest party of opposition in the Lok Sabha.
• A Supreme Court Judge nominated, by the Chief Justice of India (CJI): This is the exact matter of disagreement between the Vice-President.

Selection Committee nominates names panel to Appointment Committee of the Cabinet, which then makes the final appointment. The Director is appointed for a fixed term of not less than two years, a provision aimed at ensuring security of tenure and insulating the position from political influence.

Historical Circumstances and Judicial involvement

Inclusion of Chief Justice of India or a judge designated by the Chief Justice of India to the selection committee has been because of the judicial judgments and amendments in the laws that have tried to make the CBI independent. Before these amendments, the possible interference of the CBI by the executive was frequently voiced and the agency was argued to require more independence.

The case of Vineet Narain & Ors. vs. Union of India & Anr. in 1997 (popularly called the Vineet Narain case) contributed enormously to this appointment process. In this verdict, the Supreme Court had given a number of directives on securing directive of the CBI. These guidelines stressed on having a stable term of the CBI Director as well as a transparent way of selecting them. These principles were later enshrined in the statute law via the Central Vigilance Commission Act, 2003 and subsequently by the Lokpal and Lokayuktas Act, 2013 which also mandated the constitution of the current form of selection committees.

Statements of Vice-President Dhankhar

The Vice-President Jagdeep Dhankhar has raised doubts about the involvement of the Chief Justice of India in an executive appointment such as that of the CBI Director. His declarations, in a number of venues of the public discourse, challenge the constitutional correctness of such a participation. He has highlighted the concept of separation of powers which is also the core of the Constitution of India that defines the specific functions of legislative, executive and the judicial arms of the government.

This is based on the fact that the Vice-President believes in the importance of the executive appointments to belong solely to the executive, responsible to the legislature and consequentially to the electorates. He has raised the concern on how the CJI under the guise of a committee that makes an executive appointment can be part of the overall appointment by the statutory prescription also implying that such an authorization may end up encouraging the violation of the separation of powers and therefore a kind of arrogation of powers by the judicial branch into the executive functions. He has termed it a need to re-visit such norms.

Separation of powers in India

Although the Indian Constitution does not technically adhere to a rigid division of powers, which other democracies are characterized with, the concept remains enshrined in the framework. The roles of the Parliament (legislature), the President and Council of Ministers (executive), and Supreme Court and High Courts (judiciary) are provided in articles of the Constitution. There is an inherent system of checks and balances where each branch has the limiting or scrutinizing power on the powers of the other.

As in the case the judiciary conducts judicial review on legislative enactments and executive actions. The executive is answerable to the legislature by a number of parliamentary measures. Nonetheless, the procedure of appointments to some of the most prominent offices, some positions where a high level of independence is necessary, has changed to have some aspects of various branches to the appointment, or usually in the form of a judicial decree or a legislative impulse on maintaining impartiality.

The controversy between the two supreme authorities Vice-President Dhankhar and Chief Justice of India with regard to the appointment of a Director of the CBI brings out a web of constitutional issues and the interpretation of the statutory provisions amidst the context of development of the governance system of the nation. As formed by the DSPE Act and the amendments, as it stands currently, there are statements to the effect that the CJI or nominee should be a part of the selection committee, a development that has come about trying to ensure that CBI is free of bureaucracy. The fact that this arrangement was challenged by the Vice-President raises the debate of what is the best balance of power and what should the doctrine of separation of powers mean with its peculiarities in India as a nation with its own peculiarities of the democratic system.