Extension of power

New Ordinances will make CBI and ED less independent

Two Ordinances promulgated just ahead of the winter legislative session are likely to disrupt the functioning of Parliament. They extend the terms of two of the country’s most powerful investigative agencies, the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED), from two to five years. By themselves, longer terms for the heads of the CBI and ED may have been acceptable but the deception in both Ordinances lies in the detail. Instead of a consolidated five-year term, the Ordinances enable the government to extend each director’s tenure for a year at a time for three years. In effect, this creeping extension arrogates to this and future governments more powers over these two investigative agencies and crimps the scope for independence, which is already fairly narrow, further. It would be difficult for any government to resist the temptation of linking the grant of a CBI or ED chief’s extension to the direction of investigation in sensitive cases.

It may be no small coincidence that these Ordinances, which amend the Delhi Police Special Establishment Act, the parent law for the CBI, and the Central Vigilance Act, which covers the ED director’s appointment, follow a Supreme Court ruling over the extension of the latter’s term. The apex court had clarified that any extension of the tenure of the ED director beyond the age of superannuation should be for a short period and in rare and exceptional cases such as the need to complete a current investigation. The tenure of the incumbent concerned, Sanjay Kumar Mishra, was extended for a year in 2020 and set to expire at the end of this month. The Supreme Court had ruled that Mr Mishra’s term could not be extended. It is possible that extensions to both posts may be harder to do than irate opposition parties are making out.

The ED director is appointed on the recommendation of a committee comprising the Central Vigilance Commission chief and members, the home secretary, revenue secretary, and the secretary to the Department of Personnel and Training, and the extension also requires the committee’s recommendations. The CBI director is appointed on the recommendation of a committee comprising the prime minister, the leader of the opposition, and the chief justice of the Supreme Court or a nominated judge. This extension could well become controversial since it involves the acquiescence of a political leader. But this is only one aspect of the problem. The broader issue is the cavalier manner in which the government treats appointments of senior civil servants. The recent replacement of the secretary general of the Rajya Sabha secretariat, the first to be appointed from the ranks, within two months of his appointment and his replacement by a retired bureaucrat is a case in point. It is unclear yet what a former taxman will bring to a consequential role that demands a sound understanding of parliamentary procedure and administration. But, as with these Ordinances, the precedent that has been set is an unhealthy one.