CBI Director’s tenure

Syllabus: General Studies Paper 2

Context:

The Central government promulgated ordinances to give five-year tenure to heads of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED). 

Amendment in Acts –

• Delhi Special Police Establishment Act (1946)- the amendment was made under this act to change the tenure of CBI director
• Central Vigilance Commission Act (2003)- by amending this act changes were brought to the tenure of ED  director
• Fundamental Rules, 1922 
  • Fundamental rules are guiding principles applicable to all public servants and cover the full range of their in-service and post-retirement work scenarios.
  • It prohibits the extension of service to any public servant beyond the retirement age of 60 years, except a few, including the Secretary to the Cabinet, those engaged in budget-related work. , eminent scientists, the Cabinet Secretary, the heads of the IB and RAW in addition to the director of the CBI, among others with certain conditions.
  • Amendment was made in rules to bring them in sync with amendments to Delhi Special Police Establishment Act and Central Vigilance Commission Act 

Key provisions

• Earlier media CBI director could be appointed for two years, now the ordinance extends it to three more years thus a total of 5 years tenure. However, no extension can be given after 5 years
• The original fundamental  Rule 56(d) included top functionaries like home secretary, defence secretary, foreign secretary chief of intelligence Bureau and research and analysis wing whose term could be extended by the government to a maximum of two years and beyond
• The amendment to the rule mentions directors of ED as well as CBI along with defence secretary, home secretary, and director of Intelligence Bureau and R&AW secretary.

Pros of the ordinances 

• Two-year tenure for a CBI head is too short for any officer to make an impact on the organisation. The Federal Bureau of Investigation chief in the U.S. gets a 10-year term. 
  • 5-year tenure provides them with the much-needed continuity that a Director needs in an outfit charged with the task of conducting highly sensitive investigations, which sometimes impinge on the longevity and stability of a democratically elected government.
• Better Investigation of cases- the director will have an opportunity to pursue cases longer and thus can help in taking logical conclusions.
• Transparency in extension- All extensions will have to be approved by the PM-led committee where the Chief Justice of India  and Leader of Opposition will also have an opinion

Cons of the ordinance:

• One-Year extensions: At the end of the mandatory two-year tenure, the government will have to issue orders granting one-year extensions at a time. 
  • It would have been better if there was a straight five-year term for the Director. 
  • The rule about three annual extensions can be misused by a tendentious government. 
  • It may be construed as a reward for an obliging Director.
• Promulgation of ordinances- Article 123 of the Indian constitution allows centre and state governments to frame loss through ordinance making however, constitution-makers envisaged a much-restrained use of this practice.
• DC Wadhwa Case (1986)- the Supreme court clarified that Power to promulgate ordinance is essentially a party to meet an extraordinary situation and should not be perverted to serve political ends

Challenges for the autonomy of CBI

• Dependence on State governments: Successive chiefs have suggested the drafting of a CBI Act to ensure that the organisation is not dependent on the State governments, many of which have withdrawn consent for the CBI to function in that State. 
  • The Supreme Court has recently made references to this objectionable development. 
  • Eight States — West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh, and Mizoram — have withdrawn the general consent. 
• The government is sometimes arbitrary in choosing the Director. It is not rare to see temporary appointments given to favour some individuals. Seniority was often ignored in appointments and Directors were removed frequently. 

Need for an independent CBI

• Vineet Narain Case (1997)- in the landmark judgement the Supreme Court held that the agencies need permanent insulation against the external influence and down a dictum that directors of CBI & ED should have a minimum tenure of two years.
• Any dishonest interference in the working of the organisation interrupts straightforward investigations. The government will therefore have to show enormous restraint in its interactions with the head of the CBI.
• As a measure of accountability, the Director will have to keep the government informed of all major administrative decisions. 
• He or she should inform the executive but not take orders from it.

The CBI should be made to derive its authority for launching investigations from its own statute instead of depending on the Criminal Procedure Code, which makes the CBI a police organisation. Apt analogies are the Income Tax Act and the Customs Act, which enable the officers of the two departments to act on their own.

The Hindu Link:

https://www.thehindu.com/opinion/op-ed/longer-term-better-impact/article37527454.ece

Question: Examine the criticisms made against the functioning of the Central Bureau of Investigation (CBI) and in the light of these criticisms, discuss how its director should conduct himself.