Prof. S N Misra in Bhubaneswar, November 17, 2021; The Government has promulgated two ordinances by amending CVC Act 2003 and SPE Act 1946 which will allow the Centre to extend the tenure of ED & Director CBI from 2 years up to 5 years.

The opposition party has termed it as a brazen move to subvert parliamentary discussion, as the parliament session is supposed to begin from 29th November. Besides, it has the potential to compromise independence of these agencies.

As per Article 123 of the constitution ordinances are to be promulgated when parliament is not in session to deal with situations where immediate action is necessary. Ideally every issue should be deliberated upon by the members of the parliament before they get converted into acts and ordinances should be the exception without a tendency to bypass parliamentary debates on important issues.

It may kindly be recalled in a recent judgment in October 2021 (Common Causes vs. SKMishra) involving retrospective appointment to S.K. Mishra present ED, the Supreme Court had allowed the govt. to go ahead with a retrospective appointment with a caveat that the tenure of Sri SK Mishra should not be extended beyond November 18 when his extended tenure runs out.

Justice N. Rao and Justice Gavai had also observed that extension of tenure to officers who have attained the age of superannuation should be done only in “rare and exceptional cases, like completion of ongoing investigation only after reasons are recorded by the committee under section 25 A of CBC Act. Quite clearly the present ordinance of the govt. would nullify the Supreme Court orders that 18th November is deadline for SK Mishra to stay as ED.

The ED enforces two central laws namely Prevention of Money Laundering Act and FEMA. In bank fraud cases registered by CBI with black money implication the baton is passed on to the ED. Mr. SK Mishra is presently overseeing allegations against involvement of Sharad Pawar’s nephew in the alleged loan fraud case in Maharashtra State Cooperative Bank.

He is also looking into allegations against Mr. Akhilesh Yadav, previously UP CM in an illegal mining case and of PC Chidambaram and his son in the INX media case. Mr. Y. Azad presently CIC has observed that such extension will demoralize young talents and undermine autonomy and independence of statutory agencies like CBI. ‘The proposed ordinances are not meant to reform and streamline the functioning of independent investigative agencies but designed to favor particular individuals.’

The Hon’ble Supreme court has been seized of the matter of frequent ordinance making by the Centre and the State Govts. under article 213. In the famous DC Wadhwa vs State of Bihar (1986) case the court had seriously frowned upon the frequent tendency of re promulgating ordinances in Bihar. Justice PN Bhagawati has famously observed “the power to promulgate ordinance is essentially a power to be used to meet an extra ordinary situation and it cannot be allowed to be “perverted to serve political ends”.

In another case involving KK Singh Vs State of Bihar (2017), the Supreme court with 5 –1 majority had observed that re-promulgation of ordinance is fundamentally at odds within principle of parliamentary supremacy Justice DY Chandrachud has further suggested that the power of the governor and the president to approve promulgation of ordinance is subject to judicial review,’ as to whether the President or Governor was spurred by an oblique motive.

There is a perception that whichever party comes to the power there is tendency to misuse investigative agency like CBI, ED and Income tax to settle score with political adversaries. CJI Lodha in the Coal Bloc allocation case had observed in May 2013 that the CBI has become “caged parrot speaking in its Master’s voice”. The latest move seems to indicate that the present Govt. is trying to curry favors with ED and Director CBI by dangling tenure extension.

This has serious implication on independence of investigative agencies like ED and CBI. In our constitutional scheme of things, the Supreme Court, the C & AG and Chief Election Commissioner are able to exercise their function as watch dog of democracy since they can be removed from office only through an impeachment procedure by both houses of parliament. It may be recalled that 5 judges were superseded in 1973 since the then PM felt that the judges were not toeing the party line.

The superseded judges resigned as they felt committed to the rule of law rather than to the party in power. In 1976 the story of supersession of independent minded judges repeated when justice HR Khanna was superseded as CJI since he had dared to give a dissenting judgment that right to life cannot be taken away during the emergency period in the ADM Jabalpur vs SP Shukla case (1977) .

The Supreme Court has shown remarkable resilience since then by asserting its independence by striking down the 42nd Amendment in the Minerva Mills Case (1980), which tried to make Parliament all powerful and nullify power judicial review. The C&G in India has also been showing remarkable independence by commenting adversely on Coal block allocation and 2G spectrum auctioning, which were subsequently upheld by the Supreme Court.

Unfortunately, agencies like CBI &ED being statutory authority do not have the Constitutional immunity that the judges, C&AG and CEC enjoy. The processes are further roiled by pliant civil servants who become complicit with the high handed action of politicians in power.

Fareed Zakaria in his book “The Future of Freedom” has observed that un-elected and independent institutions have contributed more to the growth of democracy than an elected representative. Ideally such agencies should be made constitutional authority so that they can exercise their power “without fear, favor or ill will” as the judges swear when they take oath of office. Hopefully the Supreme Court will intervene to ensure that such high handed ordinance by the party in power does not strike at the roots of checks and balances, which is the hall mark of a healthy and accountable democracy.