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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.

Concerns with decision

• 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.
• 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.
• 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.

Way forward

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.