Another hurried Ordinance

Julio Ribeiro

A few days before Parliament was to convene, the Modi-Shah government brought in an Ordinance giving itself powers to extend the tenure of the Director, ED, and the Director, CBI, to five years from two! By doing so, it was cocking a snook at the Supreme Court which had ruled in a PIL or writ petition that no further extensions could be given to the ED Director.

Empowered by the last-minute Ordinance, the Central government did what it wanted to do — give Mishra, the IRS officer occupying the exalted chair of ED Director — a year’s extension in service, beyond the two he had already availed of.

Political bosses, armed with the power of appointments and transfers, can play havoc with the careers of senior officers who do not toe their line.

The two-year limit had been mandated by the Supreme Court in its Prakash Singh judgment, based on the recommendations of the National Police Commission. The purport of the recommendation was to prescribe a fixed tenure for high office when changes cannot be made by the appointing authority, thus enabling the incumbent to do his professional duty without fear or favour. The Director did not have to look over his shoulder at his political boss, which most officers today do out of compulsion.

The political bosses, armed with the power of appointments and transfers, can play havoc with the careers of senior officers who do not toe their political line. If then, the Director was assured of a fixed tenure, he or she could successfully disregard illegal or irregular requests emanating from politicians otherwise capable of removing the officer from that position.

There is no problem in prescribing a five-year, instead of a two-year tenure, to incumbents of high office, if it is applicable to all appointees from the inception of their tenures. Of course, it would close the door for other deserving, albeit junior, candidates in the service who are eagerly awaiting their turn in the sun! That would not be fair to them. But that is quite a different principle involved and a different consideration altogether. Leaving it to the political class to decide further extensions on a yearly basis, till five years end, is a negation of the very principle on which the two-year tenure was proposed by the National Police Commission and upheld by the Supreme Court.

Take the case of Subodh Jaiswal, the present CBI Director. As an honoured member of the IPS cadre of Maharashtra, his reputation for justice and fair play is known to his colleagues, and also those from among the public who have dealt with him officially. He is known as a man who cannot be purchased. I do not expect such a person to succumb to the temptation of continuing in high office by selling his soul. I would be surprised and very disappointed if that happened. But not all officers are made in the same mould. Human frailties can be exploited by unscrupulous operators. There are myriad ways in which this can be manoeuvred. Those who resist are Trojans, true warriors.

SE Joshi, a batch senior to me in service, rose to be the RAW chief. On completing 58 years (the prescribed retirement age in those days), he was requested by the government of the day to continue. He declined. The reason he gave was that it was unfair to his junior colleagues who were awaiting their turn to step into his shoes. I knew Joshi personally. He belonged to a different breed of officials who kept the good of the service and its interests above their own. They do not make too many such officers anymore, and that is a pity.

A bigger pity is that the system, as it works today, encourages the wrong type of buccaneering officers who worm their way into the open arms of waiting politicians and then indulge in the ungainly sight of men scratching each other’s backs! A prime example of this buccaneering is what is happening in Maharashtra, with a former Police Commissioner wanted in several cases of extortion disappearing from view till he was declared an ‘absconder’ by the courts and a threat to the confiscation of his sizeable properties loomed.

It appeared incongruous to me that a party which came to power on the plank of fighting corruption, and, of course, the accompanying promise of development, should so blatantly circumvent the stated intent of the highest court of law in India to ward off political involvement in the dispensation of justice. You may be an active supporter of the party in power, but that does not give you the freedom to contravene the law. The opposite premise is also valid. You cannot become a law-breaker merely by opposing or criticising the party in power. In any event, the truth is not negotiable. No one should interfere in the investigation of crimes, except the departmental supervisors, and, later, the courts of law which adjudicate.

The Ordinance introducing the new powers given to the government to have its own way in the investigation of sensitive cases with a political flavour has already been challenged in the court.

The government says it will introduce an Act in Parliament to see it through. It will attempt to propel the legislation through both Houses without discussion, as it has done in the case of the three now-repealed farm laws.

This will be a travesty of justice and fair play. For how much longer will such tactics succeed? It will shift debates from Parliament to the streets. And this will not be a happy ending to parliamentary democracy as we know it.

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