#StoryAlert🚨 Rahul Gandhi’s dissent over the CBI Director selection...

#StoryAlert🚨

Rahul Gandhi’s dissent over the CBI Director selection has reopened a larger constitutional question: if the process stays opaque and extensions keep favouring the Executive, what exactly is the CJI there to guarantee?

The Chief Justice of India’s seat in the Prime Minister-led three member committee to select a CBI Director produces neither neutrality, nor transparency, nor accountability. So what purpose does it then serve?

It merely produces a halo to a process that @RahulGandhi now describes as “biased”. If Gandhi’s account in his dissent note is accurate, and that indeed the procedure currently only favours a “pre-decided candidate”, then how does it reflect on Chief Justice of India Surya Kant?

The larger issue I address in this special column for @frontline_india is that it is not publicly known whether the Chief Justice himself received the full records of persons he was going to vote for.

If the Leader of the Opposition was kept in the dark, the judge may well have been kept there beside him. In this column, I write about what happened after I attempted to intervene through the RTI Act to uncover the truth behind the CJI’s participation.

Link to the story: frontline.thehindu.com/columns/cbi-di…

In May 2023, this author had filed a RTI application addressed to the Supreme Court of India on the role of its Chief Justice in the appointment of the CBI Director. The application sought answers on a few pointed questions:

1. when did the CJI’s Office receive the list of eligible officers being considered for the post,
2. whether service records, integrity records, personal details, and other relevant material were received.
3. And more importantly, what criteria did the Chief Justice’s side apply for shortlisting names and what inputs, if any, did the Chief Justice provide during the Committee’s meeting.

This was the same month when the selection process was on which ultimately led to current Director Praveen Sood’s appointment.

In reply, the Public Information Officer (PIO) of the Supreme Court rejected the RTI citing three sections of the RTI Act, two of which were exemptions from disclosure.

First, section 8(1)(e) which exempts disclosure of information held in a fiduciary relationship.

Second, section 8(1)(j) which relates to personal information which has no connection to public activity or public interest.

And third, section 11(1) which is actually just a procedure to be followed if information concerning third parties are to be disclosed. It is not a free-standing exemption clause.

As is routine with the Supreme Court’s RTI responses, the rejection was not justified. It is a settled principle of law that the PIO ought to justify why a particular exemption clause has been invoked and how it applies in the facts of the case.

Following the three-tier process under RTI, a first appeal was filed before the designated First Appellate Authority—a Registrar at the Supreme Court. The Registrar’s order made the contradiction even more visible.

It recorded that the CJI’s office “is not the custodian” of the applications or other information relating to the selection of the CBI Director.

That the Chief Justice is only one member of the High Level Committee.

And that there is “no separate Secretariat” in the CJI’s office to deal with the matter.

Having said all that, the same order proceeded to uphold the denial on grounds of confidentiality, third-party treatment, and privacy, and went so far as to suggest that there is “public interest in the maintenance of confidentiality”— not only for private individuals but “even government”.

On second appeal to the apex forum that adjudicates RTI cases, the Central Information Commission, it held in one short paragraph in its August 2024 order that the reply was “self-explanatory” and that no further intervention was warranted—even after the argument that almost all parts of the request were non-personal in any case.

The point here should not be amiss: the judicial member is invoked as constitutional reassurance at the front of the process and as a non-custodial bystander at the back of it. The present system borrows judicial prestige for the Executive’s most politically charged personnel choice while imposing no public accountability obligation on any of the parties.

It is for this reason that calls from legitimate circles for the CJI’s involvement in selecting Election Commissioners and other such authorities does not inspire confidence given the current opaque selection process.

A day after the High-level committee failed to reach a consensus on the next CBI Director, Sood was given his second one-year extension.

What can be said is that the outcome does not inconvenience the government in the slightest. An incumbent who has served the present Executive’s political priorities, kept on for another year, is not a setback for the government but only a continuity it has every reason to welcome.

Which again brings us back to the central question: what exactly did Chief Justice Kant do to make an executive-driven process—one that has repeatedly been challenged on grounds of fairness, transparency, and legitimacy—more credible and constitutionally robust? What did Chief Justice Chandrachud do when he was asked to recommend Sood in 2023?

A constitutional democracy that wants confidence in its principal investigative agency must build it through reasons, records, and public process. It cannot manufacture it by parking a Chief Justice in a closed room and then declaring the room itself a secret, asking people to have blind “faith and trust” on its representatives.

Until that changes, the Chief Justice’s seat at the CBI selection table will continue to do what the RTI file already shows it does: it will lend the executive a halo, and lend the public absolutely nothing.

More on this in my special, 30th Case In Point column for @frontline_india magazine.

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frontline.thehindu.com/columns/cbi-di…