Bharat Bhushan: Incentivising pliant bureaucrats at the helm
Despite a Supreme Court ruling forbidding further extensions in service to the Director of the Enforcement Directorate (ED), the Narendra Modi government has gone ahead and given a second one year extension to Sanjay Mishra. For this an ordinance was promulgated barely four days before Mishra was to demit office and two weeks before Parliament’s winter session began.
The extension of the
service tenures of the director of the Central Bureau of Investigation (CBI) as
well as the Home Secretary, Defence Secretary, Secretary of the Research and
Analysis Wing (RAW) and Director of Intelligence Bureau have also been
accomplished by ordinances. While the service of the directors of ED and CBI
can now be extended up to five years, that of the others can be stretched to
four years – one year at a time after they complete their mandatory tenure of
two years.
Prime Minister Modi
has been widely quoted saying, “We cannot march through the 21st century
with the administrative systems of the 19th century.” Yet under
him crucial bureaucratic appointments increasingly resemble the nomination of
civil servants by the Directors of the East India Company. Is the so-called
“steel frame” of bureaucracy fast becoming a malleable fan club of loyalist
bureaucrats?
The government’s
actions favouring pliant officers by extending their tenure beyond superannuation
show a complete disregard for the Supreme Court and a disdain for Parliament.
As an ordinance is a legal route, the Supreme Court, contrary to the opinion of
some legal experts, may not hold the government in contempt for bypassing its
order. Nevertheless, it is a signal to the Apex Court that it cannot be a
hurdle in the way of the Executive.
Condescension for
Parliament is evident because if there was a general need to extend the service
of key officers beyond the mandated two-year period this could have been
brought before parliament. Now it must rubber stamp the whims of the current
regime. The Modi government’s haughtiness towards Parliament is rooted in its
overwhelming majority in the Lok Sabha and confidence that its clever machinations
will get ordinances ratified in the Rajya Sabha.
The present ordinances
though spurred by the impending retirement of a particular bureaucrat have
transmogrified into something of larger significance. When the Supreme
Court ordered that the tenure of the Directors of ED and CBI must be for two
years, in 1997, in the Vineet Narain vs. Union of India case,
it was to maintain and strengthen their independence in face of political
pressure by government. The Modi government has turned the intention of that
order on its head. The possibility of a series of one year extensions up to
four and five years (in the case of ED and CBI) could potentially incentivise
politicisation of these departments and investigative agencies. Beholden to the
government for extensions those heading these institutions are likely to be
guided by loyalty to the regime.
Indeed, there is
enough evidence to suggest that ED and CBI have been used punitively against
Opposition politicians and other critics of the regime. The ED, for example is
investigating politicians such as Congress party’s P Chidamabaram and D K
Shivkumar, Kamal Nath’s nephew Ratul Puri, Uttar Pradesh leaders Akhilesh Yadav
and Mayawati as well as the West Bengal illegal coal mining scandal involving
people close to the Trinamul Congress, the Kerala gold smuggling case which
helps the government target the Communist government there, a case against
Robert Vadra and the Augusta Westland helicopter deal. The intelligence agencies
are as much part of the mess in Jammu and Kashmir as the Home and Defence
Ministries. They are the blunt instruments that the Modi government uses to
underpin its ideological pursuits and majoritarian agenda.
It might be recalled
that Prime Minister Narendra Modi began his tenure with an ordinance in order
to override the legal bar to appointing retired IAS officer Nripendra Misra as
his Principal Secretary. Misra as a former member of the Telecom Regulatory
Authority of India (TRAI) was forbidden from taking any government employment
after retirement. An enabling ordinance (The Telecom Regulatory Authority of
India (Amendment) Ordinance of May 28, 2014 ) provided the legal backing for
Misra to take up his assignment just two days after the prime minister assumed
office.
The omission of the
post of Foreign Secretary from the ambit of these ordinances is telling and has
been a matter of some public speculation. It reaffirms the argument that
extensions will incentivise only those who broadly represent the “strong arm of
the state” –the police, the paramilitary, intelligence gathering, financial and
criminal investigations and prosecution.
From the case of Ashok
Lavasa a former IAS officer appointed to a tenured position of Election
Commissioner, the government seems to have learnt that a one-time
post-retirement tenure is not as effective in winning loyalty as a series of
one year extensions. Once appointed, Lavasa was perceived to have turned on his
benefactors. He and his family faced the brunt of the ED and Income Tax
department till it appears that he agreed to exit peaceably by accepting the
government’s nomination as Vice-President of the Asian Development Bank in
Manila.
The links of the
Executive and the bureaucracy increasingly appear to be only notionally
determined by law under the Modi regime. They are strongly influenced by
loyalty to the leader, servicing his ideological and political needs and his
level of personal comfort with a bureaucrat. The current extensions suggest
that the Modi government can only work with a coterie of tried and tested
bureaucrats and policemen.
However, the All India
Services pool is large enough to fish for talent. So is the government
betraying nervousness at the end of its second tenure by its seeming reluctance
to take a risk with those who rise up the bureaucratic hierarchy, based on fair
promotions and merit? There is no a priori reason to doubt their ability or
loyalty. Are the government’s actions then an admission of its shrinking
influence and legitimacy in the broader ranks of the bureaucracy itself?
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