Objecting to the ordinances which empower the Centre to appoint chiefs of the Central Bureau of Investigation and Enforcement Directorate for tenures up to five years, the petitioner in the landmark 1997 Supreme Court judgment, which granted “independence” to the CBI and fixed a two-year term for its director, has said the apex court should now intervene and do a course correction.
Speaking to The Indian Express, Vineet Narain, who filed a petition in 1993 wherein he questioned the shackling of the agency, said: “Now the Honourable Supreme Court should take cognizance of this order and evaluate its merit in the light of its own previous judgment of 1997. The Supreme Court should intervene and decide how the spirit of autonomy should be maintained in the CBI as well as the Enforcement Directorate.’’
While the government, Narain said, was within its right to bring an ordinance on the subject, it should ideally have approached the Supreme Court before doing so and held a discussion on the floor of Parliament.
“Ideally, the government should have taken both prior steps: debated the matter in Parliament and allowed the Supreme Court to revisit the matter too,” he said.
Narain said while he had no problem with a fixed 5-year tenure for the heads of the two investigating agencies, the extended tenures should be given to them as a one-time appointment.
Elaborating on his objections to the current scenario, he said: “The CBI and ED are sensitive organisations and there have been any number of allegations of the government of the day misusing them. Giving the directors piecemeal extensions of a few months or a year at a time will lead to blackmailing them and with this the independence of the agencies will be thrown out of the window.”
“To keep the process transparent, the five-year tenure must be given in one go so that swords are not left hanging on the chiefs of the CBI and ED,” Narain said.
Former CBI directors had differing views on the ordinances. While some welcomed it, others said this would compromise the independence of the agencies.
Former CBI director A P Singh said: “The FBI director has a 10-year tenure. Even though the ordinance does not provide for a fixed five-year term, I welcome it. At least the director will have an opportunity to pursue cases longer and take them to the logical conclusion. All extensions will have to be approved by the PM-led committee where the CJI and Leader of Opposition will also have an opinion.”
It was Singh who in 2011 had recommended to Parliamentary committees that the CBI director should have a fixed tenure of five years. His recommendation, made during consideration of the Lokpal and Lokayuktas Bill, 2011, by Parliamentary committees, was eventually rejected.
But another former CBI director, who did not wish to be named, had a different take. “Through this order, the government has dangled a carrot in front of the CBI and ED directors that if you toe the line you might get an extension beyond your tenure. This can seriously compromise the independence of the agency. Every director will want to have a longer tenure. Earlier, a director who was not looking for a cushy post-retirement job could work with a modicum of independence because he knew he would not be removed before his tenure ends.”
Former CBI special director M L Sharma agreed with this view. “There are two ways to see it. They (CBI and ED directors) need to have longer tenures. But if they (government) wanted to give longer tenure, they should have fixed it. But to split that tenure in three parts is like the stick-and-carrot policy. It will compromise the autonomy of the agency. They will also have to prostrate before the committee members. No bureaucrat wants to retire. I don’t find it to be a very positive move,” he said.
Former CBI director Vijay Shankar said: “It is the privilege of the government. If they can do it for two years, they can do it for more. As far as the question of the agency being compromised is concerned, it will depend upon the person who is heading the agency.”
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