Modi Govt bypassed all democratic norms in extending tenure of ED, CBI chiefs
Both the agencies are in the hands of the government. The step has therefore been interpreted as an attack on the objectivity and freedom of probe agencies
The year is almost at its end. Republic Day would bring back to us again the celebrations of democracy. As we revise our pledge on January 26 to abide by our Constitution, protect it and move ahead, the Government has been busy taking decisions and passing ordinances to subvert it. It has extended the tenure of the directors of the CBI and ED, and made it from two years to five years. With a nod from the President, the ordinances got clearance. The Parliament session is only a few days away but the possibility of deterrents coming from the opposition was obviously not acceptable to the government, hence the hurry.
Both the agencies are in the hands of the government. The step has been interpreted as an attack on the objectivity and freedom of probe agencies. The move has also been seen as taken in a hurry to extend the tenure of ED director S K Mishra that was scheduled to end on November 17. It is also seen as subversion of freedom of the key agencies as the government has usurped the right to take decision to extend the tenure of the chiefs. Earlier the centre could extend the tenure for a year for three consecutive times. 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. “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.
The term for SK Mishra was to be over in 2020 but was extended for one year. The step was termed as ‘exceptional’ and also ‘unprecedented’. Now the period of full five years has been granted by an ordinance. As the term was extended, the Centre justifying the step, said in the ordinance itself, “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. 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 move has also caused apprehension about the future of democracy since it has sidelined the recent judgment by the Supreme Court bench that had pointedly said in the case linked to the extension of Mishra’s tenure that such an extension can only be “in rare and exceptional cases”. The judiciary is not going to come to terms with the changes mutely, 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.
It has been announced by the Ministry of Law and Justice that the two ordinances – the Delhi Special Police (Establishment) Ordinance, 2021 and the Central Vigilance Commission (Amendment) Ordinance, 2021 – will come into effect immediately. There has also been an amendment in the Delhi Special Police (Establishment) Ordinance, in which the ministry has introduced a change in the Delhi Special Police Establishment Act, 1946. A clause inserted states: “Provided that the period for which the Director holds the office on his initial appointment may, in the public interest, on the 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.”
In the same context there is also another move that suggests that 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.”
The ordinances have not been a rare incident. The Centre has been outreaching and making such changes earlier too. 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.
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