Incentivising pliant bureaucrats at the helm

Are the govt's actions admission of its shrinking influence and legitimacy in the broader ranks of the bureaucracy itself?

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. An ordinance was promulgated a bare 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) and 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?

Read: Sanjay Mishra becomes beneficiary of ordinance, to be ED chief for one more year

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.

Though spurred by the impending retirement of a particular bureaucrat, the present ordinances 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 the face of political pressure by the 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 the 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 the 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 Chidambaram and DK Shivakumar, 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 Trinamool Congress, the Kerala gold smuggling case which helps the government target the Communist government there, a case against Robert Vadra and the AgustaWestland 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 Modi began his tenure with an ordinance in order to override the legal bar to appoint retired IAS officer Nripendra Misra as his principal secretary. As a former member of the Telecom Regulatory Authority of India (TRAI), Misra 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 the 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 police officers.

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 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 than an admission of its shrinking influence and legitimacy in the broader ranks of the bureaucracy itself?

(The writer is a journalist based in Delhi)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.

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