By giving the government the power to extend the tenure of the heads of the two agencies to a maximum of five years — from two years, currently — the two ordinances carry the potential of further chipping away the independence of these agencies.
Barely 15 days before Parliament is scheduled to convene for the Winter Session, the government has promulgated two ordinances, inviting questions about its intent. That these two ordinances have to do with the tenure of directors of the CBI and ED — two agencies that are widely seen to be regularly called out, in the recent past, for targeting political opponents — makes the move even more controversial. In September, the Supreme Court had made it clear that the tenure of the present ED director, Sanjay Mishra, should not be extended beyond November. It appears that the ordinance is aimed at circumventing the apex court’s directive. By giving the government the power to extend the tenure of the heads of the two agencies to a maximum of five years — from two years, currently — the two ordinances carry the potential of further chipping away the independence of these agencies.
Article 123 of the Constitution allows the Centre and state governments to frame laws through an ordinance but the Constitution-makers envisaged a much restrained use of this practice. The Supreme Court, too, has repeatedly affirmed the constitutional principle that the primary power to frame laws rests with Parliament, and not the executive. In the DC Wadhwa case in 1986, the court clarified that, “the power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be perverted to serve political ends.” However, in the past seven years, the Centre, as well as several state governments, have increasingly been succumbing to the temptation of bypassing the parliamentary route to make laws. The first NDA government averaged 9.6 ordinances a year and in its 10 years in office the UPA promulgated about seven ordinances a year. In comparison, in its seven years, the current government averages close to 11 ordinances a year. In April it went against the SC ruling of 2017 to re-promulgate an ordinance.
Successive governments in the past have abused the CBI, ED, Narcotics Control Bureau and the Income Tax department for partisan purposes. But the aggression with which central agencies have targeted political opponents of the current dispensation, without displaying anything close to a similar alacrity against alleged offenders from the BJP, marks a new low. The cases that the ED under Mishra has probed, or is currently investigating, involve members of the Congress, NCP, DMK, Samajwadi Party, TMC and National Conference. The list of Opposition leaders under the CBI’s scanner is as long. Extending the tenure of the heads of the two agencies also goes against the SC’s stipulation of a two-year term for them in the Vineet Narain case. The court’s observation in this landmark case in 1997 that the agencies need “permanent insulation against extraneous influences” has acquired greater prescience. It also points to the challenge that lies ahead.
This column first appeared in the print edition on November 16, 2021 under the title ‘Taming the agency’.
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