TENURE EXTENSION OF THE INVESTIGATING AGENCIES CHIEF

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THE CONTEXT: In November 2021, the Centre has brought in two ordinances to facilitate the continuance of the chiefs of the Enforcement Directorate and the Central Bureau of Investigation in their posts for a maximum period of five years. In this article, we will analyze the consequences of this move.

THE DEVELOPMENT

1. TENURE EXTENSION FOR INVESTIGATING AGENCIES CHIEF

• The Centre moved an ordinance that allowed the tenure of the Central Bureau of Investigation director to be extended by up to five years. A similar ordinance has extended the tenure of the director of the Enforcement Directorate.
• The Directors of CBI and ED enjoy a fixed tenure of two years from the date of their appointment in the wake of the directives of the Supreme Court in the famous Vineet Narain case.
• For the CBI director, the central government amended the Delhi Special Police Establishment (DSPE) Act, 1946 and for the ED director, the government amended the Central Vigilance Commission (CVC) Act.
• Both the Acts allow the chiefs of ED and CBI the nation’s nodal organisations entrusted with fighting corruption, money laundering and other serious crimes to get three one-year extensions after the completion of their two-year tenures.
• The CBI is currently headed by 1985-batch IPS officer Subodh Kumar Jaiswal, who was appointed in May 2021 for a two-year period.
• The ED is headed by IRS officer Sanjay Kumar Mishra, who was appointed to the post in November 2018. In November 2020, his tenure was extended by another year by the Centre.

2. AMENDMENT IN FUNDAMENTAL RULES

• The Centre amended Fundamental Rules (FR), 1922 also to facilitate extended tenure and in-service benefits to CBI and ED directors.
• The FR is a set of guiding principles applicable to all government servants and covers the entire gamut of their in-service and post-retirement working scenarios.
• It bars extension in service to any government servants beyond the age of retirement of sixty years except a few including Cabinet Secretary, those dealing with budget-related work, eminent scientists, Cabinet Secretary, IB and RAW chiefs besides the CBI director among others with certain conditions.
• The rules now allow the central government to give extension in the public interest to the Defence Secretary, Home Secretary, Director of Intelligence Bureau (IB), Secretary of Research and Analysis Wing (RAW) and directors of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) on a case-to-case basis.

HOW DO THESE AGENCIES CHIEFS APPOINT?

CBI CHIEF

• The procedure for the appointment of the CBI chief is laid down in the Delhi Special Police Establishment Act of 1946.
• Section 4A of the Act says that any director of a special police force or establishment, including the CBI chief, is to be appointed by the central government, which has to go by the recommendation in that regard of a committee comprising the Prime Minister, Leader of Opposition in Lok Sabha along with the Chief Justice of India or any judge of the Supreme Court nominated by him.
• For filling the post of CBI chief, the committee is mandated to recommend a panel of officers “on the basis of seniority, integrity and experience in the investigation of anti-corruption cases” who are to be chosen from amongst officers belonging to the Indian Police Service (IPS).
• Section 4B of the DSPE Act provides that persons appointed as directors under it shall “continue to hold office for a period of not less than two years from the date on which he assumes office”.

ED CHIEF

• The appointment of the ED chief is governed by the Central Vigilance Commission Act of 2003. Article 25 of the Act lays down that the Centre shall appoint the ED Director on the recommendation of a panel that will have the Central Vigilance Commissioner as its chairperson and include vigilance commissioners as its members along with the Union home secretary, the secretary of the central Ministry of Personnel, and the revenue secretary.

WHY DID THE GOVERNMENT BRING TWO ORDINANCES?

Both CBI and ED are the two most important investigating agencies. The ED has the sole jurisdiction to investigate money-laundering cases, while the CBI has the primary responsibility to investigate cases of corruption.

• A fixed upper limit to the tenure of such appointments to “maintain independence”.
• India faces certain sensitive investigative and legal processes in important cases, requiring extradition of fugitive offenders, which need a “continuum”.
• The ED and CBI chiefs are a “relevant and significant part of the global movement against corruption and money laundering”, and hence “any possibility of restricting the tenure may defeat the object under certain circumstances”.
• The world is facing “global contingencies” such as fugitives running away, the laundering of funds using shell companies, and extradition cases and there is every possibility of such global contingencies occurring in the future and therefore, amendments in the Delhi Special Police Establishment Act, 1946, are necessitated to meet such contingencies whenever arises with certain in-built safeguards.
• It is mandatory for senior personnel to hold their positions for sufficiently long tenures.
• Enhancing capacity and resources for continuing oversight by the senior officers, especially the heads of the two agencies, is “fundamental to the proposed re-strengthening”.
• It is strongly felt that assured long tenures of the heads of ED and CBI on similar lines would be highly desirable.
• A longer-term could give the ED and CBI chiefs greater leeway, helping them pursue sensitive cases to their logical conclusion — the US’ Federal Bureau of Investigation (FBI) does give its head a 10-year tenure.

A case study of ED working under present director Sanjay Mishra

Sanjay Kumar Mishra brought about fundamental changes in the work culture of the Enforcement Directorate.

• He maintained a low public profile and did not give any interviews to the media. He also ensured that the zonal directors, who were earlier working essentially as regional satraps, also did the same. He ensured that no motivated leaks or rumours attributed to sources within ED were floated.
• He avoided indiscriminate arrest of the accused, giving them ample opportunity, by way of summons, to join the investigation. Anil Deshmukh case and P. Chidambaram case.
• The Enforcement Directorate is handling a number of many sensitive cases that are at a crucial stage, it would have been neither in the national interest nor in the interest of the administration of justice to change the head of the organisation, merely because of a legal provision.

WHAT ARE THE ISSUES?

Autonomy of the agencies: One-year extensions would harm the independent functioning of these agencies and would also take away the stability required to protect them from political interference.

Tinkering with tenure: While there have been attempts to bring independence and stability to the appointment and functioning of CBI directors, their appointments and tenures have frequently been mired in controversy. The new ordinance would give the Central government even more power to decide the tenure of the director, one year at a time, undermining the idea of a fixed and minimum tenure for the person in the post.

Appointments in question: Despite several measures to bring impartiality to appointing CBI directors, the process has frequently been questioned. In 2013, the Lokpal and Lokayuktas Act prescribed that the CBI director would be selected by a panel comprising of the prime minister, the leader of the opposition and the CGI. While this process seems to ensure fairness, the director is usually chosen from a pool of candidates elected by a Central government department. The current selection criteria are based on “seniority, integrity and experience in the investigation of anti-corruption cases”. But they have been criticised for being vague since relatively junior officers have been appointed as directors. Apart from this, there have been numerous instances of the government trying to tinker with the appointment of CBI directors. In 2018, there was a long drawn fight between Alok Verma, who was then CBI director, and Rakesh Asthana, special director of the CBI. Asthana is believed to be close to the government and was appointed as special director despite being accused of corruption by Verma. Asthana in turn also alleged corruption by Verma. In a context that is already politicised, giving the government more control over the appointment of the CBI director could undermine the independence of the institution.

Timing of the ordinance: The timing of the ordinances has also raised questions, coming just before the tenure of the current Enforcement Directorate chief Sanjay Kumar Mishra was about to expire. His tenure was retrospectively extended last year so that he could continue till 2021. His term has already been extended by a year using the ordinance. The ordinance was brought in two weeks before the winter session of Parliament.

The working of the agencies is already under doubt: The CBI is frequently misused by the Central government for political goals. In 2013, the Supreme Court described the CBI as a “caged parrot speaking in its master’s voice”. At present, eight states ruled by governments led by opposition parties, have withdrawn the “general consent” to the CBI. This means that the CBI, being a central agency, will have to obtain the state government’s consent to proceed in a case.

Against the SC judgement: The move has sidelined the 2020 judgment by the Supreme Court bench that had pointedly said in the case linked to the extension of Mishra’s tenure that such an extension can only be “in rare and exceptional cases”. The ordinances have not been a rare incident. The Centre has been outreaching and making such changes earlier too. When Ed chief tenure was extended in Nov. 2020, it was a challenge in SC. Then Supreme court ruled that the ED director can be appointed for a period of more than two years by following the relevant procedure. But for Mishra’s case, the court said no further extension shall be granted and also said the extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases.

The proper procedure is not followed: Unlike the CBI director, the head of the ED is not selected by the committee consisting of the prime minister, leader of the opposition and chief justice of India. However, the recommendation of extension of the term of ED director comes from a committee comprising the chief vigilance commissioner, vigilance commissioner, home secretary and the secretaries of the Department of Personnel and Training and Revenue. By extending the ED director’s tenure through an ordinance, the Union government has bypassed this committee.

PATRONAGE OVER PROBITY?

• Ordinances are meant to deal with emergencies and brought when circumstances demand swift action. But previous 2 years viz: 2019 & 2020 have seen ordinances surpassing Parliament scrutiny and 16 & 15 ordinances were promulgated in 2019 & 2020.
• Parliamentary proceedings offer a wonderful platform to debate, discuss & devise any new legislation. Any new legislation should be debated at length, as has been the tradition. At a time when the Parliament Session was just days ahead, taking the ordinance route could have been avoided.
• Promulgating an ordinance in such circumstances is nothing but a means to undermine the institution. Parliament is an appropriate body for law-making and decisions that weaken its role should be avoided.

THE WAY FORWARD

• At a time, when the working of investigating agencies is under doubt, the government should give more autonomy to these agencies in their work to show their neutrality.
• As in present, parliament session is going on, so there should be a proper discussion about the ordinances.
• The selection procedure for the appointment of heads of these agencies should be more transparent, and government should try to appoint neutral officers.
• As the supreme court ruled that, the extension should be in rare conditions, this guideline should be followed.
• There should be a proper selection panel for the selection of ED chief also.
• In future, such a decision should be taken after the proper debate and discussion in parliament.

THE CONCLUSION: Although, the tenure extensions of such bodies are needed, and they should be, but these decisions should be taken after proper discussion in parliament and government. In an era where one of the most progressive legislation has been passed, transparency and accountability to the people are called for on the part of all democratic institutions.