Extending Terms Of ED & CBI Chiefs: Double-Edged Sword
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-11-16 15:49:38
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
The government was bent on further extending the term of service of Sanjay Mishra, the present director of the Enforcement Directorate (ED). But the Supreme Court had made it clear in September that his term should not be extended. Hence, fearing that if the term was extended by an executive fiat, the court might strike it down, it was left with no alternative but to change the law to facilitate the same. So it has now promulgated an ordinance which allows it to extend the terms of the directors of both the ED and the Central Bureau of Investigation (CBI) by three years through three extensions of one year each. But in doing so, the government has done three things it should not have done - first, it has gone against the judiciary; second, instead of making these federal agencies independent, it has further tightened its grip on them and third, once again, it has made use of an ordinance to change the law despite the fact that the winter session of the parliament is set to commence in just 15 days.
The government can justify going the ordinance route by saying that it had no alternative as Mishra's tenure is to end in November and parliament session will not start before that. It will also give the same reasons for wanting to extend his term as it gave before the Supreme Court in September- that he is handling several high profile cases which are at a critical stage and his continuation is needed. But this is a specious excuse. Every chief of an investigating agency handles critical cases at any given point of time, including the time when his career is about to end. In all such cases, when the time comes for him to retire, he or she hands over the files and briefs his or her successor who takes over the investigation. The retiring chief always helps the department with the investigations even after relinquishing the post. Further, whatever the reason, the ordinance route should be resorted to sparingly and in extreme cases as making laws is not the job of the executive but is the exclusive preserve of parliament. Extending the terms of the ED and CBI chiefs is not something that should have been done by promulgating an ordinance.
Further, with the Supreme Court making it clear that the terms of such high profile chiefs should be extended for a very short period, very selectively and ideally not after superannuation, it is not proper for the government to do so by changing the law, more so as Mishra superannuated in May 2020. The directions of the court were for good reasons. As it is, successive governments at the Centre have used ED and CBI in a biased manner to target opposition politicians and businessmen who do not toe their line. This compromises the independence of these bodies. If now the government is allowed to keep its favourite in the top post for five years instead of the present two, even the illusion of independence will vanish and bodies will become totally politicized. This is a double-edged sword as this government is not going to stay in power forever. The same law that it is now enacting to use against the opposition will be used against it when it is in opposition. Hence, the government should tread carefully before doing anything that erodes the independence of agencies tasked with enforcing the law in a fair and unbiased manner.
