[Editorial Analysis] Exception to the rule

Mains Paper 2: Polity
Prelims level: Central Bureau of Investigation
Mains level: Statutory/Non-statutory bodies.

Context:

• The new law authorising an extension of the services of the heads of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) until they complete a total tenure of five years will seriously compromise the autonomy of those agencies.

• Significantly, in the case of the present Director of Enforcement, S.K. Mishra, who was appointed for two years in November 2018, his services were extended by an order on November 13, 2020, which amended the original term of appointment from two years to three years.

Problems with the decision:

• Goes against the spirit Vineet Narain vs Union of India (1997) Judgement: The SC laid down a dictum that the Directors of the CBI and the ED should have a minimum tenure of two years. This was to prevent their sudden transfer out of office if their functioning goes against the interests of the regime of the day. While it did not specifically bar longer terms or extensions, the prospect of getting an annual extension can be an incentive for displaying regime loyalty in the discharge of their duties.

• Ordinance route: That the changes were brought in through the ordinance route barely 15 days before a Parliament session, raises a doubt. The government has promulgated two ordinances, for this one for CBI one for ED.

• Caged Parrot Criticism – Erosion of trust: Given that the central agencies have drawn much criticism for their focus on personages linked to Opposition parties, such a measure will be seen as a reward for guided functioning instead of a necessity to keep ongoing investigations on track.

• Impact on Independence: A further extension that will take the officers’ services well beyond superannuation, that too one year at a time, will render the heads of two investigating agencies unacceptably beholden to the Government.

Matters in Supreme court:

• Previously in Mr. Mishra’s case, the Supreme Court declined to interfere with the one-year addition to his original term of appointment(last year November 2020), but also said that:

1. “extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases”.
2. And that the further extension should only be for “a short period”.
3. It also made it clear that no further extension shall be granted to him. It is possible that the

• A New Petition by Vineet Narayan: He had made the original petition in 1993 in the SC. He contends that ideally, the government should have taken both prior steps: debated the matter in Parliament and allowed the Supreme Court to revisit the matter too.

Conclusion:

• Even if the government does not give the extension to Mr. Mishra, it does not render the act of authorising year-on-year extensions to future appointees any less detrimental to the public interest.

• The protection given by a fixed tenure and the use of a high-ranking committee to recommend appointments and transfers were meant to dilute the ‘doctrine of pleasure’ implicit in civil service. However, it may be breached, if the extension allowed in exceptional circumstances becomes the rule.

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Prelims Questions:

Q.1) With reference to the rail electrification in northeast, consider the following statements:

1. Northeast Frontier Railway (NFR) has successfully completed Electrification work of total 649 RKM / 1294 TKM from Katihar to Guwahati.

2. Guwahati is the biggest and busiest railway station of Northeast being located in the capital of Assam.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C

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