GS-2: Structure, Organization and Functioning of the Executive and the Judiciary—Ministries and Departments of the Government

Key phrases - ED, CBI, Delhi Police Establishment Act

Why in news-

Government increases tenures of CBI, ED Directors

Analysis:

Why is the Amendment about?

• Delhi Special Police Establishment (DSPE) Act,1946 and the Central Vigilance Commission (CVC) Act, 2003 have been amended to give the government the power to keep the two chiefs in their posts for one year after they have completed their two-year terms.
• Chiefs of the Central agencies currently have a fixed two-year tenure, but can now be given three annual extensions.

Why increase their tenure?

• Fixed tenure granted to the head of the investigative agencies would help in speedy disposal of cases and bring down pendency, as per the government
• Crimes in modern world have become interlinked and complex -the investigation of such crimes requires the two investigating agencies to have robust processes and senior personnel in position for sufficiently long tenures. As such, enhancing the capacity and the resources for continuing oversight by the senior officers
• Ordinarily, longer tenures are an established practice in major countries, two years’ tenure ought to be a minimum and that is what is contemplated in the statutory provisions. However, in India’s case owing to several factors, including the issues of seniority and hierarchy, two years’ tenure has in fact become the upper limit
• There will be continuity and stability. Certain information which is confidential with the head of an investigation agency will remain with him till the conclusion of the cases. This is going to address this (pendency of cases) issue

About ED:

• Directorate of Enforcement is a specialized financial investigation agency under the Department of Revenue, Ministry of Finance.
• Enforcement Directorate or ED is committed to preventing money laundering offenses.
• Part of ministry of finance

Functions of ED:

• Multi-Disciplinary Organization mandated with the task of enforcing the provisions of two special fiscal laws – Foreign Exchange Management Act, 1999 (FEMA) and Prevention of Money Laundering Act, 2002 (PMLA)
• Processing cases of fugitive/s from India under Fugitive Economic Offenders Act, 2018.
• Sponsor cases of preventive detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) in regard to contraventions of FEMA.
• FERA Empowered ED with the power to arrest for FERA violations. It allowed even Enforcement Officer to enter any business premises without a warrant and arrest anyone.
• Under PMLA, on the direction of the ED Director, money generated out of criminal activity (proceeds of crime) can be attached. If the wealth (money) is not available, ED can attach property equivalent to that value.

Challenges with ED:

• Critics say that the government has been using the foreign funding law as a tool to silence its critics and Non-government groups that have raised concerns about the social costs of India’s rapid economic development. For Ex: critics point out the recent ED raid on Amnesty India.
• The agency has conducted over 1,700 raids from March 2011 to January 2020 ED has managed to secure convictions in only a paltry 9 cases, most of which are relatively-speaking low profile cases.
• Anonymous ED sources have through various stories complained about insufficient manpower, the difficulty in establishing evidence of a proper money trail, and poor litigation strategies. For Example, since the PMLA enacted investigation is pending in over 1,000 cases.
• Question of Independence and misuse: Critics of ED are calling it a tool of political intimidation because of ED’s administrative control of Ministry.
• ED Lacks Jurisdiction if the convict is out of India. ED’s power to investigate or arrest the convicts at present is limited within the territory of India
• Funding is inadequate: The powers and the responsibilities of ED requires adequate financing but the previous budgetary allocations are inadequate with respect to the functions of the ED.

Way ahead:

• Increasing the funding of the ED: Increasing the Budgetary allocation of ED will help them to improve the conduct of investigation and consequently the conviction rate.
• Increasing the Man power: By increasing the man power ED can become more efficient and reduce the pendency of cases. Thereby increasing the credibility of ED as a whole.
• Considering the autonomous status of ED: This will curb the question over Independence and improve the ED’s image as a reputed agency against economic offenses in our country.

About CBI:

• Central Bureau of Investigation (CBI) is the premier investigating police agency in India.
• It functions under the superintendence of the Deptt. of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India - which falls under the prime minister’s office.
• Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for the administration of the organisation.
• Its conviction rate is as high as 65 to 70% and it is comparable to the best investigation agencies in the world.

Functions of CBI:

• Anti-Corruption Crimes - for investigation of cases under the Prevention of Corruption Act against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations.
• Economic Crimes - for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank frauds, Import Export & Foreign Exchange violations.
• Special Crimes - for investigation of serious and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts - such as cases of terrorism, bomb blasts, kidnapping for ransom.
• The Central Government can authorize CBI to investigate a crime in a State but only with the consent of the concerned State Government.

Issues faced:

• The Supreme Court of India has criticised the CBI by calling it a "caged parrot speaking in its master's voice", due to excessive political interference in its functioning.
• It has been accused of enormous delays in concluding investigations - For example, the inertia in its probe against the high dignitaries in Jain hawala diaries case [of the 1990s].
• Improving the image of the agency is one of the biggest challenges till now as the agency has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal; Hawala scandal, Sant Singh Chatwal case, Bhopal gas tragedy
• Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
• Acute shortage of personnel: A major cause of the shortfall is the government's sheer mismanagement of CBI's workforce, through a system of inefficient, and inexplicably biased, recruitment policies - used to bring in favoured officers

Way ahead

• Delink the CBI from the administrative control of the government - As long as the government of the day has the power to transfer and post officials of its choice in the CBI, the investigating agency will not enjoy autonomy
• Providing statutory status through legislation equivalent to that provided to the Comptroller & Auditor General and the Election Commission will help maintain the independence of the institution.
• The Second Administrative Reforms Commission (2007) also suggested that “a new law should be enacted to govern the working of the CBI”.
• The 19th and 24th reports of the Parliamentary Standing Committees (2007 and 2008) recommended that the need of the hour is to strengthen the CBI in terms of legal mandate, infrastructure and resources.
• Besides appointing the head of the CBI through a collegium, as recommended by the Lokpal Act, the government must ensure financial autonomy for the outfit.

Source: The Hindu