Centre's Move to Subvert CBI and ED Undoes Years of Effort to Secure Their Independence

All gains have been effectively undermined by a government determined to make these agencies their instruments to harass and intimidate.

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In 1997, the Supreme Court after seeing how the Central Bureau of Investigation (CBI) was being used and abused by the government to selectively investigate cases of corruption in order to harass and victimise the political opponents of the government and to let off the corrupt within the ruling parties, gave a path breaking judgment.

The judgment in Vineet Narain and Ors v UOI and Ors designed to try and secure the independence of the CBI and the Enforcement Directorate (ED) from the government. 

Relying on the recommendations of expert committees earlier, the court directed that the CBI chief would be selected by a committee headed by the central vigilance commissioner with the home Secretary and secretary (personnel) as members. The present selection committee of the prime minister, the leader of the opposition and the chief justice of India was introduced by way of the Lokpal Act, 2014 which amended the Delhi Special Police Establishment (DSPE) Act.

The court also directed that the Central Vigilance Commission (CVC) be given statutory status so that its members do not remain under the normal disciplinary control of the government, that the CBI be placed under the supervisory jurisdiction of the CVC, and further that the CVC oversee transfer and posting of senior officers of the CBI. The same judgment also directed that the director of the ED would be selected by the government on the recommendations of the CVC. He too would have a minimum tenure of two years. 

Thereafter, a similar exercise was sought to be undertaken by the Supreme Court in 2006 in Prakash Singh’s case (Prakash Singh and Ors v Union of India and Ors), in order to secure some degree of independence for the police forces of the states.

Again, relying upon the recommendations of a number of expert committees, the court directed a slew of measures for this purpose, including, a minimum statutory tenure of two years for the police chief of each state who would be selected from a panel prepared by the Union Public Service Commission from among three senior most officers of the state considered fit by the UPSC. 

The Supreme Court further clarified this direction to say that the person selected should have a residual tenure of at least six months before retirement for him to be appointed DGP and once appointed he would have a minimum tenure of two years.

File photo of Alok Verma arriving at the CBI office. Photo: PTI

In 2019, when the then CBI director Alok Verma was considering starting an investigation into the purchase of Rafale aircrafts by the Narendra Modi government, the government in a midnight “coup”, sealed the CBI director’s office, removed him prematurely and appointed a junior officer, Nageshwar Rao, known to be a lackey of the government, as acting director.

This move was later quashed by the Supreme Court while holding that there is no concept of appointment of an acting director and that the director cannot be removed without the concurrence of the appointing committee. However, by the time the Supreme Court gave its judgment, there were only a few days left before Verma’s retirement. He was reinstated for barely two days before being sacked with a 2:1 vote by the high-powered committee comprising by Modi, Mallikarjun Kharge and Justice Sikri.

Also read: Modi-Led Panel’s Decision to Remove Alok Verma as CBI Chief Is Fundamentally Flawed

In May 2020, the ED director S.K. Mishra, reached the age of superannuation. His statutory tenure of two years was expiring on November 19, 2020. By an order dated November 13, 2020, he was given an extension for a year by retrospectively amending his appointment order dated November 19, 2018, to increase his tenure from two years to three years, even though he was normally superannuating in less than two years.

There is neither any enabling provision in the CVC Act for extension of service of the director of the ED nor any enabling provision which provides for such retrospective modification of appointment orders. The purpose behind Section 25(d) of the CVC Act in providing a minimum tenure of two years, is only to insulate the ED director from all kinds of influences and pressures. However, the said purpose gets defeated if on the verge of his two year tenure and much after his retirement age, the director is given a de facto extension in service by adoption of a circuitous route of modifying the initial appointment order itself. 

Sanjay Kumar Mishra. Photo: Twitter/IRS Association

When this retrospective extension was challenged by NGO Common Cause, the government came up with a plea that the government could appoint the director for a period of more than two years even if the remaining time before superannuation is less than two years. The government also took the plea that he was doing some important work that needed to be completed and therefore, he was given an extension and that the extension of Mishra was approved by the selection committee of the members of the Central Vigilance Commission. 

The Supreme Court in its judgment dated September 8, 2021, while not completely prohibiting an extension said that the extension can only be granted in extraordinary circumstances and for a limited period of time and since Mishra was retiring in two months, allowed him to continue but directed no further extension would be given to him. 

On November 14, 2021, just five days before Mishra’s extended tenure was to end, the government issued an ordinance effectively providing that the term of the CBI and ED directors could be extended by the government for one year at a time upto a maximum of five years. It also amended fundamental rule 56 which states that no government servant other than certain categories like specialist in medical or scientific fields, eminent scientist of international stature, defence secretary, home secretary, director of the  Intelligence Bureau, etc. can continue in service beyond the age of 60 years. It provided an exception for the CBI director and the director of the ED. 

Expectedly, on November 17, 2021, the government issued an order extending the tenure of Enforcement Director for another year. Presumably this has also been done with the concurrence of the selection committee of the CVC which is currently manned by only one out of three persons as two posts are still vacant. 

The Enforcement Directorate handles a large number of cases involving huge corruption, many of which are politically sensitive in nature.

Such illegalities in appointment of the director shake the confidence of citizens in the institution of the ED. Such actions are totally against the laudable principles of impeccable integrity in persons holding high public offices and the consequent need for insulating the said offices from extraneous influences, as enshrined in the Vineet Narain judgment.

Also read: As ED Chief Gets One-Year Extension, Here’s a List of Cases He’s Probing Against Opposition Leaders

Mishra as ED director has been instrumental in harassing several opposition leaders and activist organisations, in particular Harsh Mander’s Centre for Equity Studies and Amnesty India International – and has not been able to come up with anything incriminating till date. It has also targeted INX Media, involving former finance minister P. Chidambaram, Karnataka Congress chief D.K. Shivakumar, National Conference’s Farooq Abdullah and leaders of the Dravida Munnetra Kazhagam, Bahujan Samaj Party and many others.

He is widely seen and regarded as the hatchet man of the government to be used to harass and intimidate opposition leaders as well as activists who are seen as thorns in the flesh of the government. 

The second extension granted to the Enforcement Director is in the teeth of the SC order prohibiting any further extension to him and in my view, is clear contempt of court. This extension also makes a mockery of the whole object of Supreme Court’s judgment in Vineet Narain which gave a fixed tenure to the CBI and ED directors, on the basis that this was necessary to secure the independence of these agencies from the government and to preserve the rule of law.

Also read: Troubling Questions on Ordinance Making CBI, ED Chiefs’ Tenure Extendable

The ordinance allowing extensions to be given to the two directors effectively undo and undermine the Supreme Court’s judgment, by allowing the government to keep the carrot of extension hanging before these chiefs. All that the government needs is a compliant CVC in the case of the director of ED and a compliant leader of opposition or CJI who are willing to play ball in the case of the CBI director. This is why the ordinance and extension of the director of ED’s tenure has been challenged by several people including Trinamool Congress MP Mahua Moitra, Congress leader Randeep Surjewala and a group of eminent retired civil servants. 

In the Vineet Narain and Prakash Singh judgments, important victories were won after a long legal battle of several years for securing the independence of the investigative agencies such as the CBI, the ED and the police. Unfortunately, in the past several years, all these gains have been effectively undermined by a government determined to make these agencies their instruments to harass and intimidate opposition leaders and outspoken activists. 

Prashant Bhushan is a public interest advocate practicing at the Supreme Court of India.