Listen to this article:
New Delhi: The Modi government’s decision to give itself the power to recommend extending the tenures of the chiefs of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) for up to five years – as opposed to the current fixed two-year tenure – is being seen as an attempt to subvert the independence of the two key probe agencies.
On Sunday, the president signed two ordinances promulgated by the ministry of law and justice which state that after an ED or CBI’s chief two year term ends, the Union government may extend his or her tenure by a year for three consecutive years. The ordinances amend the Delhi Police Special Establishment Act, which is the parent law for the CBI, and the Central Vigilance Act, which covers the appointment of the ED director.
Shocking & malafide! An attempt to further subvert the independence of the CBI & ED https://t.co/crDCWCca90
— Prashant Bhushan (@pbhushan1) November 14, 2021
“Whereas the parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action,” the ordinances say.
That the ordinances have been promulgated just two weeks before parliament is scheduled to convene may cause further controversy.
Parliament session begins on 29th.
To avoid its scrutiny, Centre on Sunday promulgates ordinances to extend the tenure of Directors of CBI and ED.
This desperate hurry smacks of something fishy. pic.twitter.com/X309ODjqAL
— Sitaram Yechury (@SitaramYechury) November 14, 2021
The timing of the ordinances suggests that the move was meant to extend the tenure of ED director S.K. Mishra, which is scheduled to end on November 17. Mishra’s tenure was already extended by a year in 2020, a move that was described as ‘exceptional’ and ‘unprecedented’. He took charge in 2018.
The Centre had stated while extending his tenure: “The President of India is pleased to approve the modification in the earlier order dated November 19, 2018, appointing Shri Sanjay Kumar Mishra as director of enforcement in the Enforcement Directorate.” A 1984-batch Indian Revenue Service officer of the Income Tax cadre, Mishra, now 61 years old, was appointed the ED chief on November 19, 2018.
A Supreme Court bench recently delivered its judgment in the case linked to the extension of Mishra’s tenure, saying that such an extension can only be “in rare and exceptional cases”.
The ordinances say “no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment”.
The Ministry of Law and Justice announced that the two ordinances – the Delhi Special Police (Establishment) Ordinance, 2021 and the Central Vigilance Commission (Amendment) Ordinance, 2021 – will come into effect immediately.
Through the Delhi Special Police (Establishment) Ordinance, the ministry has introduced an amendment to the Delhi Special Police Establishment Act, 1946, inserting a clause that states: “Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on recommendation of the Committee under sub-section (1) of section 4A and for the reasons to be recorded in writing, be extended up to one year at a time: Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.”
On the other hand, the Central Vigilance Commission (Amendment) Ordinance, 2021 will introduce an amendment to the Central Vigilance Commission Act, 2003. Here, the new clause states that “provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under clause (a) and for reasons to be recorded in writing, be extended up to one year at a time: Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.”
In the past, opposition leaders have accused the Union government of using the ED to target them. Under Mishra’s leadership, the agency has opened up investigations into many leaders. Opposition leaders have also said that when an opposition leader defects to the BJP, the ED appears to lose interest in cases against them.
Following the ordinances, questions are being raised about the manner in which the Centre has been regularly tinkering with the appointment and tenure norms of high-level officers in these two investigating agencies.
Unlike the CBI director, the head of the ED is not selected by the committee consisting of the prime minister, leader of 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.
Congress leader and Rajya Sabha MP P. Chidambaram told The Wire that the ordinances will be opposed in the parliament and also taken up in the apex court.
“Amending the Acts through Ordinances will not obliterate the judgement of the Supreme Court. The judgement is law under Article 141. The Ordinances will be opposed in Parliament and challenged in the Supreme Court,” he said.
A Delhi-based journalist tweeted about how the move would result in the ED and CBI directors having a five-year term each.
This means, CBI and ED Directors can have tenure of 2+1+1+1 (5 years in total).
That is, after the initial two years, based on their ‘service’, Govt can extend their tenure for a year, again based on their ‘service’, another year and again based on their ‘service’, another year ! https://t.co/5E2L4Z9nIt
— Arvind Gunasekar (@arvindgunasekar) November 14, 2021
He added that “this ordinance is squarely against the crux of Prakash Singh judgment, ‘fixed tenure’ for Police Chief. With this ordinance, CBI & ED Chiefs might do anything to please the bosses for extensions. This at a time when the credibility of the agencies at all time low!!”