Troubling Questions on Ordinance Making CBI, ED Chiefs' Tenure Extendable

This ordinance is bound to put the fate of senior echelons within these two agencies in a churn.

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Democracies around the world struggle to fend off the lure of populism. They are often tested at the altar of governance within the parliament and outside. This entails a high degree of transparency and accountability on part of the democratic institutions to perform as per the expectations of the people, in an efficient and unbiased fashion. Sardar Patel exhorted the All India Services to act like the steel frame and the police for working in coordination all over the country to solve crimes in a time-bound manner.

Over the years, however, a series of internecine inter-state squabbles and political grandstanding have mired the credibility of these institutions. Both Central Bureau of Investigation and Enforcement Directorate come in for special mention by the courts, opposition and the media. While CBI carries the tag of a caged parrot, ED is called the weaponised arm of the Union against the opposition.

Why was the ordinance giving them five-year terms passed when ED and CBI chiefs already had two-year fixed tenures? Besides, the Supreme Court had clearly directed, with reference to the present ED chief, that extensions after retirement cannot be given except for short periods in “rare circumstances”.

Troubling questions remain. Why an ordinance when the next parliament session is due round the corner? The ED chief’s extension was coming to an end on November 19, so the ordinance surely came in handy to carry him over till next year. The catch in the five-year tenure is the clause which specifies that the fixed part is only for two years and then is extendable every year for the next three years, depending on the “performance” of the candidate. Such an order detracts from the dignity accorded to the high office.

To the credit of the government, a debate has been going on for a while for giving long tenures to chiefs of critical institutions for continuity in policy making and raising performance standards. Certainly, this will be in the interest of the country if such a policy is evolved from a series of public debates and discussions within the parliament with representatives of all political parties. After all, these two agencies have an all-India reach, hence the need to keep everyone on board. Besides, the choice of CBI chief rests with the chief justice, prime minister and the leader of opposition. The Supreme Court only recently assessed the performance of the CBI. Shouldn’t this committee deliberate upon the pros and cons of such a move first?

Also read: With ED, CBI Ordinance, Centre Ups Its Game for ‘Fourth Gen Warfare’ Within Civil Society

Will the five-year tenure raise performance standards? Hardly. The two-year fixed tenure rule itself is under scanner. The germane issue is the selection of the right leader. If the best candidates are not chosen, the entire exercise becomes meaningless. What, for example, could be the reason behind shifting out the senior most officer in the IB after the chief, who was due to take over? Sheel Vardhan served the organisation with distinction and was the best choice as the chief.  Incidentally, both RAW and IB chiefs are already on one-year extension after their fixed tenures. Obviously, they are performing so brilliantly that only the government is aware of what they are doing but not the people. Or, are we moving towards that stage where every government coming to power chooses its own set of officers for their five-year term?

Similarly, a new Rajya Sabha secretary general has been posted who got three extensions as Central Board of Direct Taxes chief. If he was so outstanding, he could have been made a special Tax Czar. But more importantly, the one who was removed had risen from the cadre and had barely been there for a few months. He was also rated as highly professional and unbiased.

Such choices will certainly raise doubts in the minds of people. With the latest change in fundamental rules, extension of service can be given to the chiefs of IB, RAW, CBI and home and defence secretaries, but the impact of wrong choices for such crucial posts can be well imagined.

Also read: Why It’s Important to Audit India’s Institutional Failures

This ordinance is bound to put the fate of senior echelons within these two agencies in a churn. Unable to see a clear career path ahead, after more than two-three decades of service, many will choose to go back to their home cadres or just bide their time out. There is already a paucity of posts at the highest pay grade for the IPS and the IRS at the Centre, thanks to their cadres being managed by watchful IAS officers who keep devising intricate, meaningless formulas to ensure that IAS officers corner 95% of the secretary-level posts in the Government of India. This migration of IPS officers towards home cadres is already noticeable and is bound to get further pronounced.

After a Supreme Court audit of the CBI, both organisations required urgent course correction. Infusion of fresh blood, ramping up of infrastructure and enhancing credibility would have been the right approach. CBI cases are languishing for sanction. Eight states have withdrawn consent. The ED’s actions often smack of bias and need to be reined in and rationalised. This is where the government needed to focus immediately.

In an era where one of most progressive legislations has been passed, transparency and accountability to the people are called for on the part of all democratic institutions. The Right to Information Act enjoins upon the government to lay bare before the people, reasons behind all its actions and the public goods they are expected to deliver. But RTI commissioners have themselves been reduced in status, from election commissioners to secretaries, Government of India. Whether or not the five-year tenure to ED and CBI chiefs will lead to fairer and more transparent functioning of these bodies is a question that will be pondered upon and debated for a long time ahead.

Yashovardhan Azad is chairman, Deepstrat, a former central information commissioner, and a retired IPS officer who served as secretary, security and special director, Intelligence Bureau.