Extension of Tenure of ED and CBI Directors

The Centre promulgated two ordinances to extend the tenures of the Directors of CBI and Enforcement Directorate from 2 years to upto 5 years and issued an order to amend the Fundamental Rules, 1922.

Amendment provisions

• The fifth provison of Clause (d) of Rule 56 of the Fundamental Rules, 1922 was amended to extend the services of the Defence Secretary, Home Secretary, Director of IB, Secretary of RAW, the Director of CBI and ED in “public interest”.
• The previous list comprised Defence Secretary, Foreign Secretary, Home Secretary, Director of Intelligence Bureau and Secretary of Research and Analysis Wing.
• Though Director of CBI was mentioned in the previous order, the new notification adds the Delhi Special Police Establishment Act, 1946 under which the investigation agency’s head is appointed.

CBI

• The precursor to the CBI was the Special Police Establishment, which was India’s first agency to investigate corruption. It was set in 1941 by the British.
• In 1963, the Home Ministry expanded its power and changed its name to the Central Bureau of Investigation. It is governed by the Delhi Special Police Establishment Act (DSPE), 1946.
• The CBI was established with a view to investigate serious crimes related to Defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications.
• CBI acts as an interface between the law enforcement agencies of India and other countries to ensure cooperation. It facilitates exchange and sharing of information by these agencies.

The superintendence of CBI related to investigation of offences under the Prevention of Corruption Act, 1988 lies with the Central Vigilance Commission (CVC) and in other matters with the Department of Personnel & Training (DOPT) in the Ministry of Personnel, Pension & Grievances.

CBI Director

• Before the lokpal act was legislated, the CBI director was appointed by the DSPE Act. Now, the Lokpal Act governs the appointment of the CBI director.
• Now, the CBI director is appointed by the Centre on the basis of the recommendation of a search committee comprising:
  • the Prime Minister as the chairperson,
  • the Chief Justice of India and
  • the Leader of Opposition.
• In the absence of a formal Leader of Opposition in the Lok Sabha, the leader of the floor of the largest opposition party takes part in the search committee meetings.

Director of CBI is appointed under the Delhi Special Police Establishment Act, 1946 and Director of Enforcement in the Directorate of Enforcement is appointed under the Central Vigilance Commission Act, 2003.

Concerns about this amendment

• It goes against the spirit of the Supreme Court judgment in Vineet Narain vs Union of India (1997) which said that the Directors of the CBI and the ED should have a minimum tenure of 2 years.
• While it did not bar longer terms or extensions, giving an annual extension can be an incentive for displaying loyalty to the ruling government in the discharge of their duties.
• Ordinance route – The changes were brought in through the ordinance route which raises a doubt whether the Government is keen on retaining the present Director of Enforcement, S.K.Mishra.

Judiciary’s view in this case

• • The Supreme Court declined to interfere with the one-year addition to the original term of appointment in Mishra’s case.
  • It also said that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases and only for a short period. It also made it clear that no further extension shall be granted to him.

• The protection given by a fixed tenure is meant to dilute the ‘doctrine of pleasure’ implicit in civil service but it may be breached, if the extension allowed in exceptional circumstances becomes the rule. (The Doctrine of Pleasure is one of the concepts which has been inherited from the British rule. Under this doctrine, the civil servants were regarded as servants of the crown and these civil servants served at their pleasure.)