Extension of terms of CBI, ED chiefs up to 5 years

Context: Recently, Government of India has brought two ordinances to extend the tenure of Enforcement Directorate (ED) and Central Bureau of Investigation(CBI) directors up to 5 years.

• The chiefs of the Central agencies currently have a fixed two-year tenure, but can now be given three annual extensions.

The amended Acts

• For CBI director: The Delhi Special Police Establishment Act, 1946 was amended
• The Central Vigilance Commission Act, 2003 was amended with respect to the ED Director’s post.

About Central Bureau of Investigation (CBI)

• The CBI is the premier investigating agency of India.
• Ministry: Ministry of Personnel, Public Grievances and Pensions. 
• Role: It was originally set up to investigate bribery and governmental corruption. In 1965, it received expanded jurisdiction to investigate breaches of central laws enforceable by the Government of India, multi-state organised crime, multi-agency or international cases. 
• CBI is exempted from the provisions of the Right to Information Act.
• CBI is India’s officially designated single point of contact for liaison with the Interpol.
• The CBI headquarter: New Delhi.

About Enforcement Directorate (ED)

• Directorate of Enforcement (ED) is a law enforcement agency and economic intelligence agency responsible for enforcing economic laws and fighting economic crime in India.
• Ministry: Department of Revenue, Ministry of Finance

The prime objective is the enforcement of two key Acts

• The Foreign Exchange Management Act 1999 (FEMA) 
• The Prevention of Money Laundering Act 2002 (PMLA)

Headquarters: New Delhi

• Five regional offices: Mumbai, Chennai, Chandigarh, Kolkata and Delhi headed by Special Directors of Enforcement.

What are the concerns associated with the ordinances?
The criticisms include

• 1. Can be used to target political opponents and take away the independence of CBI and ED,

2. Circumventing the Supreme court’s directive in two different cases:

• i) SC stipulated a minimum of a two-year term for Directors of CBI and ED in the Vineet Narain case, 
• ii) fixed tenure for certain posts means their superannuation within that period will not end their term. In the SK. Mishra’s case, the Supreme Court declined to interfere with the one-year addition to his original term of appointment. 
• But the court held that “extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases”. And that the further extension should only be for “a short period”.

3. 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. This will act as a reward for guided functioning instead of a necessity to keep ongoing investigations on track,

• 4. Dilute the ‘doctrine of pleasure’ implicit in civil service, 5. Using ordinance route.

Article 123 of the Constitution allows the Centre and state governments to frame laws through an ordinance, but the Constitution-makers envisaged a much-restrained use of this practice.

• In the DC Wadhwa case, 1986, the Supreme Court clarified that “the power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation, and it cannot be perverted to serve political ends.”
• The current government on average proclaim 11 ordinances a year.

What needs to be done?

• 1. As held in the Vineet Narain case, 1997, the organisations need “permanent insulation against extraneous influences”, 
• 2. In the SK Mishra case, the court made clear that no further extension shall be granted to the incumbent Director of Enforcement. The government must abide by and not give the benefit of the amendment to the present Director of Enforcement.

The extension allowed in exceptional circumstances cannot become a rule and a norm.