Government brazenly extends tenure of CBI, ED Chiefs in defiance of Supreme Court

The growing objections over the BJP-led government’s pervasive control over CBI and ED, the nation’s premier investigation agencies, reached a crescendo this week. On November 14, 2021, the BJP government at the Centre brought two ordinances to extend the tenures of the Chiefs of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED). The chiefs of CBI and ED can now be given extensions every year for up to three years after they complete the two-year term. This raises their total tenure limit from the current 2-year period to a maximum period of 5 years. Both the ordinances have been approved by the President of India based on his satisfaction that “circumstances exist which render it necessary for him to take immediate action" in “public interest”.

The Government of India brings Ordinance to extend the tenure of Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) Directors up to 5 years. pic.twitter.com/r6NZ8cLyJS

— ANI (@ANI) November 14, 2021

An ordinance is a temporary law made when Parliament is not in session that enables the Central government to take immediate legislative action. An ordinance becomes a permanent Act on being approved by Parliament within six weeks of reassembly.

So, what is the hullabaloo all about?

At its core, the ordinances have been widely criticized as a move to “further subvert the independence” of the CBI and the ED. The opposition parties see this as another act by the BJP government to target its political rivals through the misuse of central investigation agencies and harassing the Opposition leaders and ministers. Following are the specific technical and implied aspects of the ordinance that have riled up the critics:

Bypassing Constitutional Laws

Section 4A of the Delhi Special Police Establishment Act of 1946 stipulates that the appointment of the CBI chief be done by the central government upon the recommendation of a committee comprising the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India. By extending the tenure of the CBI Chief through an ordinance, the BJP government has bypassed this committee and unilaterally appointed its chosen person to helm the premier crime investigative agency in India.

Article 25 of the Central Vigilance Commission Act of 2003 stipulates that the appointment of the ED Chief be done upon a recommendation 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 BJP government has bypassed this committee and allowed itself the unilateral right to have its chosen person lead the top financial crime investigation agency in India.

Timing of the Ordinance

In principle, an ordinance (temporary law) is passed under exceptional circumstances for critical legislative measures when the parliament is not in session. The winter session of the Parliament was only two weeks away from when the ordinance was passed. This calls into question the specific nature of the emergency and the BJP’s government’s motivation for the haste in passing this temporary law that by nature could easily wait for 2 weeks for it to be tabled in the Parliament as per constitutional norms.

Violation of Supreme Court Orders

The answer to the haste in passing the ordinance is evident from the immediate extension given to Sanjay Kumar Mishra, the ED Chief, whose tenure was due to expire on 18^th November, 4 days after the ordinance was passed. Through the ordinance, the government extended his tenure by another year and provided itself the option of further extending it by another year. Mishra, a 1984-batch Indian Revenue Service (IRS) officer of the Income Tax Department cadre was first appointed the ED director for a period of two years by an order on November 19, 2018. The BJP government at the Centre, through an order on November 13, 2020, modified the appointment letter retrospectively and increased his term of two years to three years. This controversial order was challenged before the Supreme Court which in its judgment on September 8, 2021, upheld the extension order but said that no further extension could be given to ED Chiefs except in "rare and exceptional cases" for a "short period". However, just 4 days before the expiry of Mishra’s extended tenure, the BJP government through an ordinance provisioned for another two years’ extension. This was in direct violation of the Supreme Court orders especially since there seems nothing “rare” or “exceptional” in the need for further extending Mishra’s tenure for a period that is by no measure “short”.

Opposition Moves

The two ordinances have drawn a lot of fire from the opposition parties which have been alleging for long that the BJP government at the Centre is using probe agencies such as ED and CBI to harass its political rivals. Most political parties are uniting in their efforts to block the ordinance from becoming law when the winter session resumes in a few days. Recognizing their slim chances in blocking the Ordinance in Lok Sabha where BJP is in a majority, petitions have been filed in the Supreme Court by some parties challenging the ordinance while some have put out some strongly-worded statements.

“Modi Govt used ED-CBI as henchmen to usurp power and destabilize elected Govts. Raids by ED and CBI on the Opposition leaders have become a norm. Now, these henchmen are being empowered & rewarded with 5 yrs tenure, so that malicious prosecution is used to silence dissenting voices." tweeted Congress leader Randeep Surjrewala.

"On a polluted Sunday, the government has embarked on an ordinance route to protect their caged parrots. Disapproval motion will be moved in Parliament against this ordinance raj. Distorting constitution Modi is in a hurry to make India a banana republic." CPI MP Binoy Viswam said in a tweet on Monday.

On its part, the BJP government has cited the criticality of S.K. Mishra remaining in his position given his involvement in the ongoing investigation of fugitive businessmen Vijay Mallya and Nirav Modi. The Opposition leaders see this only as a red herring just so that the BJP can have him selectively pursue cases against its leaders. They reckon that the otherwise autonomous Chiefs of CBI & ED may be hereafter inclined to please the Central government for extending their terms. Their distrust in the failing autonomy of the ED and CBI is palpable given their submissions of these agencies uncannily appearing to lose interest in cases against Opposition leaders when they cross over to the BJP.

And the political power games in India continue…

Those who foolishly seek power by riding the back of the tiger end up inside. – John F. Kennedy