Centre amends rules to keep CBI and ED as caged parrots forever

The Union Government's amendment of the Fundamental Rules, 1922 completes what it sought to achieve through the promulgation of ordinances to extend the tenures of the directors of the CBI and the ED, reversing the reforms initiated by the Supreme Court in its 1997 Vineet Narain judgment, writes PARAS NATH SINGH.

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THE Union Government on Monday issued a notification amending the Fundamental Rules, 1922 to the effect that the tenure of the Director, Central Bureau of Investigation (CBI) and the Director, Enforcement Directorate (ED) would be subject to the Act/Rules under which they are appointed, namely the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the Central Vigilance Commission Act, 2003 (CVC Act) respectively. This comes a day after the President promulgated Ordinances extending their tenure from two years to up to five years under their respective statutes.

What are the Fundamental Rules, 1922, and what has been amended in them?

Fundamental Rules are the set of general rules by which all government servants whose pay is debitable to the Civil Estimates and to any other class of Government Servants to which the President of India may, by general or special order, declare them to be applicable.

The amendment to the Fundamental Rules aims at bringing them in conformity with the parent Acts under which the Director, CBI and the Director, ED are appointed.

The existing proviso to Rule 56(d) of the Fundamental Rules, 1922 states-

"Provided also that the Central Government may, if considers necessary in public interest so to do, give extension in service to the Defence Secretary, Foreign Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, in the Central Government for such period or periods as it may deem proper, on a case-to-case basis, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule does not exceed two years".
Besides, it is provided that the union government may, if considers it necessary, in the public interest, so to do, give an extension in service for a further period not exceeding three months beyond the said period of two years to the Home Secretary and the Defence Secretary.
The new amendment modifies the proviso to the effect-
"Provided also that the Central Government may, if it considers necessary in public interest so to do, give extension in service to the Defence Secretary, Home Secretary, Director of Intelligence Bureau, Secretary of Research and Analysis Wing and Director of Central Bureau of Investigation appointed under the Delhi Special Police Establishment Act, 1946 (25 of 1946) and Director of Enforcement in the Directorate of Enforcement appointed under the Central Vigilance Commission Act, 2003 (45 of 2003) in the Central Government for such period or periods as it may deem proper on a case-to-case basis for reasons to be recorded in writing, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule, does not exceed two years or the period provided in the respective Act or rules made thereunder, under which their appointments are made." [emphasis supplied]

The proviso regarding further extension of three months to Home Secretary and Defence Secretary remains unchanged.

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What the amendment seeks to achieve

A bare reading of the existing proviso and the amended proviso will show that the latter incorporates the newly amended tenure of the Director, CBI and Director, ED by providing that their tenure will be what is provided in the respective Acts or Rules under which they are appointed. Further, the new amendment adds the Director, ED in this proviso for the first time.

Thus, the amendment to the Fundamental Rules seeks to incorporate in the FRs what is provided in the DPSE Act and CVC Act regarding the tenure of the directors of CBI and ED respectively.

Rule 56(D) of the Fundamental Rules states that no government servant shall be granted extension in service beyond the age of retirement of 60 years. However, the Rules provided for an exception of two years extension in services of the Defence Secretary, Foreign Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation.

The new proviso omits Foreign Secretary from the exception and instead adds Director, ED.

The NGO, Common Cause, in its petition before the Supreme Court challenging the extension granted to ED Director S.K. Mishra, had contended that as per Rule 56 of the FRs, every government servant should retire on attaining the age of 60 years. Posts for which there could be an extension beyond 60 years had been specifically mentioned in the Rule and that Rule did not mention the post of Director of Enforcement for which extension of service can be given. The contention of Common Cause was that all government servants are governed by Fundamental Rule 56, and except those holding posts for which an extension beyond 60 years was permissible, other Government servants could not continue beyond the age of 60 years.

The Supreme Court had answered this argument in September by referring to the non-obstante clause in Section 25 of the CVC Act that gives overriding power to the said provision, notwithstanding anything contained in any other law for the time being in force. It held that the minimum period of two years, which is provided in Section 25, would operate notwithstanding the provisions contained in Fundamental Rule 56(a). The Court further held that there was proscription on the government to appoint a Director of Enforcement beyond a period of two years because the words 'not less than two years' simply mean a minimum of two years and there is no scope for reading the words to mean not more than two years.
The apex court, however, held that any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. Since Mishra's tenure was coming to end on November 17, the Court refused to interfere with his appointment, but directed he would not be entitled to any further extension.

Although the amendment of Fundamental Rules appears to be a consequential amendment, necessitated by the amendment of the parent legislation through Ordinances to facilitate the extension of tenures of pliable chiefs of the CBI and the ED, there is considerable force in the argument that it compromises the independence of these agencies.

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By making extension of tenures of those heading institutions of integrity reviewable periodically by the government, the amendments only challenge their obligations to be neutral and impartial in their professional duties. In that sense, Monday's amendment of the Fundamental Rules completes what the Ordinances issued earlier sought to achieve: make the chiefs of CBI and ED feel insecure in their tenures, by dangling the carrot of extension periodically up to five years, on the condition that extension would be granted only if they listen to their political masters.

Clearly, by reversing the Supreme Court-initiated reform in the Vineet Narain judgment of 1997, to make the tenures of chiefs of investigating agencies secure from the Executive's meddling, the clock has been turned back by the Centre by several years.

Postscript:  The story says that the new proviso to Rule 56(d) of the Fundamental Rules, 1922, as amended, omits Foreign Secretary from the list of officers whose tenures can be extended. After the publication of this story, the Department of Personnel and Training of the Union Ministry of Personnel, Public Grievances and Pensions, issued a corrigendum inserting "Foreign Secretary" to the proviso as existed earlier. Therefore, the tenure of Foreign Secretary too can be extended beyond the age of retirement of 60 years, for a maximum period of two years. 
(Paras Nath Singh is a Delhi-based lawyer. The views expressed are personal.)