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12th July 2023 (8 Topics)

Validity of tenure extension of CBI and ED Directors

Context

Recently, the Supreme Court (SC) asked Enforcement Directorate (ED) Director to quit four months before his third extension and held that tenures of Directors of the Central Bureau of Investigation and the ED has been stretched without any valid reason.

Background

  • Recently, the President promulgated two ordinances that would allow the Centre to extend the tenures of the directors of the Central Bureau of Investigation and the Enforcement Directorate from two years to up to five years.
  • The controversy was around the point that chiefs of the Central agencies currently have fixed two-year tenure, but can now be given three annual extensions.

About the case:

  • A Bench headed by Justice B.R. Gavai held that the continuous service extensions given to ED chief in 2021 and 2022 were illegal.
  • Besides, the committees were required to record reasons in writing in support of their recommendations for these extensions.
  • They also cited Fundamental Rule 56 which states that tenures of Government employees cannot exceed the age of retirement at 60 years.
  • The Court mentioned that while deciding this case in 2021, the Court held that the CVC Act only laid down a minimum tenure of 2 years.
  • Tenures could be extended if the Director reached retirement age before the two year tenure completed.
  • Extensions to CBI or ED Directors were to be given only in ‘rare and exceptional cases’.

Who can extend the tenure of services?

  • A five-member panel composed of the Central Vigilance Commissioner and Vigilance Commissioners had to recommend if an ED Director was worthy of an extension in service.
  • In case of the CBI Director, a High-Level Committee of the Prime Minister, Opposition Leader and the Chief Justice of India had to recommend.

Tenure and Extension of service of ED & CBI Chief:

  • The Delhi Special Police Establishment (DSPE) Act,1946 and the Central Vigilance Commission (CVC) Act, 2003 have been amended to give the government the power to keep the two chiefs in their posts for one year after they have completed their two-year terms.
  • Amendments made in DSPE Act:
    • Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (the committee led by the Prime Minister and leader of Opposition and CJI as members) and for the reasons to be recorded in writing, be extended up to one year at a time.
    • Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.
  • Amendments in CVC Act:
    • Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee (comprising of CVC chief, Revenue and Home Secretaries among others) and for the reasons to be recorded in writing, be extended up to one year at a time.
    • Provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.

Significance of the move:

  • Considering that the CBI and the ED investigate corruption in the government and money laundering, it is crucial that these investigative institutions are kept safe from political interference.
  • Many argue that the wide powers of the ED, combined with a leader arguably in the good-books of the government, are a threat to democracy.

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