The story so far: The Union Government has brought in two ordinances allowing the service of the directors of the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) to be extended beyond their fixed tenure of at least two years up to a maximum of five years. The extension can be given only one year at a time. That is, after a fixed two-year tenure, they may get three annual extensions. The current ED chief, Sanjay Kumar Mishra, whose term was to have ended on November 17, is the first officer to have received a one-year extension under the new rule.

The Government's move has drawn sharp criticism from the Opposition parties, which have accused it of taking the ordinance route despite the Parliament session beginning on November 29. At least three petitions have been filed in the Supreme Court, challenging the validity of the ordinances.

What are the two ordinances?

Allowing extension of service to the CBI Director, the President has promulgated an ordinance for necessary amendment to the Delhi Special Police Establishment Act. Accordingly, in Section 4B of the Act, in Sub-Section (1), the following provisos have been inserted. “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 under Sub-Section (1) of Section 4A 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.”

In the case of ED Director, the Central Vigilance Commission (Amendment) Ordinance, 2021, has been brought in to insert similar provisos in Section 25 of the CVC Act. This means that the committee which appoints the CBI Director has to recommend an extension, that the reason should be recorded in writing, and it should be only for one year at a time.

How does it compare with holders of other offices?

Under the Fundamental Rules, 1922, framed for civil servants, the current age of superannuation is 60. However, FR 56 has a list of government functionaries who are eligible for extension of service. The Cabinet Secretary can have extension of service subject to a cap of four years on total tenure. Until now, the Defence Secretary, the Foreign Secretary, Home Secretary, the Director and Secretary of the Research and Analysis Wing, besides, the CBI Director are eligible for extension up to two years. Further, the Home Secretary and Defence Secretary may have another three-month extension in public interest. In line with the ordinances, some changes in this Rule have been notified. The office of the ED Director has been added to the list. In addition, it has been amended to the effect that the CBI Director and ED Director may have extensions for a period provided in the respective Acts. (the reference is to the amended provisions in the Delhi SPE Act and the CVC Act). This facilitates a five-year tenure for the heads of these two agencies, with extensions being given once a year.

On what grounds have these ordinances been challenged?

About a year ago, the ED Director had been given a one-year extension retrospectively following the completion of a two-year fixed tenure, by modifying the 2018 order of his appointment as the agency chief. The move was challenged before the Supreme Court, which upheld the government's decision. However, it said that such a drastic measure should be taken only rarely. “ Any extension of tenure during superannuation should be for a short period,” said the judgment.

The petitioners, who allege that the two ordinances are arbitrary and unconstitutional, cite the judgment, as well as the Apex Court verdict in Vineet Narain vs Union of India (1997) which held that the CBI and the ED chiefs should have a minimum tenure of two years. “These Ordinances empower the Government of India to provide piecemeal extensions , following the conclusion of the fixed terms provided in their respective statutes, to the tenures of the Director of Enforcement and the Director, Central Bureau of Investigation (CBI). There are no criteria provided save for a vague reference to ‘public interest’ and is in fact, based on the subjective satisfaction of the Respondents. This has the direct and clear impact of eroding the independence of the investigative bodies in question,” says the petition filed by Congress leader Randeep Singh Surjewala.