Extensions given to crony bureaucrats acting as hatchet men betray Modi govt's contempt for 'Steel frame'

Never before have so many senior bureaucrats been given extensions. The Home Secretary Ajay Kumar Bhalla was given a one-year extension in August after he completed his two-year term. Director Intelligence Bureau, Arvind Kumar and Research & Analysis Wing (RAW) chief Samant Kumar Goel received a year’s extension in May. Defence Secretary Ajay Kumar completed his two-year tenure in August but continues in his post. And now Sanjay Kumar Mishra, Director, Enforcement Directorate, received another year’s extension this week.

Subodh Kumar Jaiswal, a Maharashtra cadre IPS officer, was appointed director of the Central Bureau of Investigation (CBI) in May for a two-year term and still has a year and a half to go in the office. But the government promulgated an ordinance to amend the Delhi Police Establishment Act to facilitate annual extensions up to five years to the CBI director as well.

Besides two ordinances promulgated on November 14 which empower the Centre to extend the tenures of the directors of CBI and ED, the govt on November 15 amended the Fundamental Rules 1992, saying that the extensions for the Defence Secretary,Home Secretary, Director of Intelligence Bureau, and Secretary of RAW cannot “exceed two years”.

This order would mean that if the government wants, it can give them an extension for up to two years and one officer may end up remaining in that post for up to four years.

What this means in effect is that Bhalla will now be eligible for another extension of one year. Similarly, IB chief Arvind Kumar, already on an extended tenure, and Goel can get yet another extension for a year.

Defence Secretary Ajay Kumar, who finished his two-year tenure in August 2021 but continues to be in the post since he is yet to retire, will be eligible for a two-year extension after his retirement if he remains the secretary of defence. The Foreign Secretary's name too has been added to the list.

The ‘extension raj’ betrays the government’s lack of confidence and faith in professional bureaucrats, feel observers. Otherwise, it would not be necessary for the government to depend on a coterie of cronies, they say.

It also reflects poor governance because the chain of succession in the bureaucracy has been well defined and while the government gets to choose the officers at the helm, it would require strong reasons to bypass seniority. All the officers’ given extension would undoubtedly be competent, said one, but some are more convenient than others.

Old-timers are shocked though. To promulgate an ordinance to give extension to a ‘favourite few’, or one in the case of Sanjay Kumar Mishra, ED Director was unthinkable, they felt.

Low profile and unassuming, Mishra, a 1984 batch IRS officer, was actually given a three-year extension in November 2020 after he had completed his two-year term, with the extension order being modified retrospectively, which was challenged in the Supreme Court. While the court held the Presidential order to be ‘legal’ (because the CVC Act spoke of a term ‘not less than two years and could mean ‘more than two years’), it advised the government not to give Mishra another extension.

The ordinance promulgated on November 14 -- the Central Vigilance Commission (Amendment) Ordinance, 2021, which amended the Central Vigilance Commission Act, 2003 -- empowered the government to do just that. Mishra, whose extension ended on November 17, got a year’s extension that very evening.

The ordinance will also allow the government to give him annual extensions till November 2023, which was what the Presidential order intended in 2020, or possibly even longer! Mishra clearly is an invaluable asset.

“It is highly unusual to promulgate an ordinance for his benefit. No officer is indispensable,” said several bureaucrats grimly. “The Constitution does not envisage promulgation of ordinances just to extend the tenure of officers beyond superannuation. In one word, this move is unwarranted,” quipped constitutional expert PDT Achary, former Secretary-General of the Lok Sabha.

“It will affect the chain of succession for years to come. Three to four batches will be eliminated each time an extension is given,” explained a serving officer.

A retired IPS officer was more forthright. “The Centre needs the ED, which has draconian and sweeping powers to carry out searches, seizures and arrests so that select cases can be pursued. They want cases to continue against the Opposition and civil society dissenters, including media outfits,” he said. A more professional and independent agency would not suit the purpose.

The ED is now described as the ‘new CBI’ and is being used far more extensively by the Modi Government. In 2012-13, for example, ED conducted 99 raids in connection with FEMA and PMLA cases. The number jumped to 670 by 2019. Finance Ministry data indicate 1700 raids by ED between 2011 and 2020 January, an average of almost 200 raids a year. In contrast, it has managed to secure convictions in single digits every year, cases which were generally not the ones the ED sensationalised and publicised.

The reliance on ED as a political weapon, say lawyers, is partly because statements made before the ED are admissible in court as evidence. The PMLA also puts the burden of proof on the accused and presumes intent. ED’s power to attach the property of the accused is another handy tool. Having no detention facility of its own, ED apparently sends the accused to local police lock-ups, which is dreaded by the accused.

Reporting to the Department of Revenue in the Finance Ministry, ED was established in 1957 to look into foreign exchange related violations and used to be a low key and rather insignificant agency. Following the enactment of Prevention of Money Laundering Act (PMLA) in 2002, it started looking into financial fraud of a criminal nature.

Lawyers explain that the ED can book an individual under 29 laws. If any person commits a crime under these sections, the money accrued qualifies as “proceeds of crime”.

In 2018 the agency was given even more teeth under the Fugitives Economic Offenders (FEO) Act by the Modi govt, empowering it to confiscate the property of fugitive economic offenders both within and outside India—whether or not the properties have been purchased from proceeds of crime. It also covers a wide array of white-collar offences that can lead to an individual being classified as an economic offender.

But while the Enforcement Directorate (ED) has been constantly in the news, it managed only 15 convictions between 2005 and 2019. During the same period the agency registered 2,400 cases. The conviction rate thus was estimated to be 0.5% in 14 years.

However, former ED director Karnal Singh claims the conviction rate of ED has been as high as 93.33%. In a magazine column, he wrote, “People often comment that the conviction rate in money-laundering cases is poor. Till now, only a limited number of cases have been decided by the courts due to prolonged trial periods. Of the 15 cases decided (until 2018), 14 have ended in conviction. Thus, our conviction rate is 93.33 per cent, which is far better than any other agency”!

The ED also claims a distinct improvement in its functioning and says that many more cases have reached the prosecution stage in the last few years than was the case earlier. The value of assets attached by the ED (Rs in crore) between 2005 and 2012, it claims, was Rs 1,214.66; the figure went up to Rs 7,432.04 by the fiscal year 2017-18.

The Opposition accuses the agency of launching a selective witch hunt. While opposition leaders are routinely summoned, detained and arrested, they point out, the cases against them mysteriously drop out once they switch their loyalty to the BJP. The more glaring such cases are that of the present Assam chief minister Himanta Biswa Sarma and former union minister Mukul Roy from West Bengal.

A Member of Parliament, speaking on condition of anonymity, says there is a strong case for Parliamentary oversight of central agencies and an audit into the functioning of ED and the CBI etc. While the government, he said, cites the 10-year tenure of the FBI (Federal Bureau of Investigation) director in the United States to justify the extension given to the ED director, it is not interested in following the oversight protocol that the FBI director is subjected to.

The move to promulgate the ordinances just days before Parliament reconvenes for the Winter Session on November 29 has also attracted flak. Article 123 of the Constitution grants certain law-making powers to the President of India to promulgate an ordinance when either of the two houses of Parliament are not in session. However, it goes on to state that the “President cannot promulgate an ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’”.

The fundamental reason for bestowing the executive with the power to issue an ordinance, according to Pandit H N Kunzru, involved in framing the Indian Constitution, was “to deal with situations where an emergency in the country necessitated urgent action.”

In the first 30 years of our parliamentary democracy, there was one ordinance promulgated for every 10 Bills introduced in Parliament. In the following 30 years, the ratio was two ordinances for every 10 Bills. In the 16th Lok Sabha (2014-19), the number jumped to 3.5 ordinances for every 10 Bills. In the current Lok Sabha it is, so far, 3.3 ordinances to every 10 Bills.

Between 2014 and 2019, in the first term of the Narendra Modi government, the number shot up to 10 ordinances a year. About 10 ordinances were issued on the eve of the 2019 general election.

The Modi govt has tabled more ordinances in seven years than the previous UPA government did in two full terms. According to data compiled by PRS Legislative Research and the Lok Sabha secretariat, 61 ordinances were promulgated between May 2004 and May 2014. But after the National Democratic Alliance took over in 2014, over 76 bills have been pushed through the ordinance route.

The numbers are indicative of the fact that the current regime prefers the quicker executive route to enact laws rather than through the Parliament as envisaged by the country’s forefathers.

Interestingly, there are only three parliamentary democracies in the world that permit the ordinance route — India, Pakistan and Bangladesh. The practice in India was adopted from the Government of India Act, 1935, where the Governor General could do as he pleased. In every other country, Parliament has to be convened in order to get a law passed.

The experience of the last seven years suggests that the BJP government prefers ‘governance by Jhatka’, as a bureaucrat put it. The political establishment is secretive and prefers closet confidantes and kitchen cabinets to carry out their bidding. A highly politicised bureaucracy has emerged during this time with bureaucrats willing to serve politicians and political parties in power, he added.

On November 12 the government also appointed former CBDT (Central Board of Direct Taxes) chairman PC Mody as Secretary-General of the Rajya Sabha. In the process, it showed the door to PPK Ramacharyulu, a retired IAS officer of the Uttarakhand cadre, barely 10 weeks after he was appointed Secretary-General. Mody is the first IRS officer to hold the post.

The message is loud and clear. The government needs a committed bureaucracy in addition to other equally committed pillars of the state. Amen.

(The writer works as Senior Editor with National Herald. Views are personal)