Extension of terms of CBI, ED chiefs by ordinance goes against SC verdicts

News: The Government of India has brought two ordinances to extend the tenure of Enforcement Directorate (ED) and Central Bureau of Investigation(CBI) directors up to 5 years.

Must read: Centre brings Ordinances to extend tenure of ED, CBI directors up to 5 years
What are the concerns associated with the ordinances?

The criticisms include,

1. Can be used to target political opponents and take away the independence of CBI and ED,

2. Circumventing the Supreme court’s directive in two different cases:

i) SC stipulated a minimum of a two-year term for Directors of CBI and ED in the Vineet Narain case, ii) fixed tenure for certain posts means their superannuation within that period will not end their term. In the SK. Mishra’s case, the Supreme Court declined to interfere with the one-year addition to his original term of appointment. But the court held that “extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases”. And that the further extension should only be for “a short period”.

3. Instead of a consolidated five-year term, the Ordinances enable the government to extend each director’s tenure for a year at a time for three years. This will act as a reward for guided functioning instead of a necessity to keep ongoing investigations on track, 4. Dilute the ‘doctrine of pleasure’ implicit in civil service, 5. Using ordinance route,

Article 123  and 213 of the Constitution allows the Centre and state governments to frame laws through an ordinance respectively. But the Constitution-makers envisaged a much-restrained use of this practice.

In the DC Wadhwa case, 1986, the Supreme 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.”

The current government on average proclaim 11 ordinances a year.

What needs to be done?

1. As held in the Vineet Narain case, 1997, the organisations need “permanent insulation against extraneous influences”, 2. In the SK Mishra case, the court made clear that no further extension shall be granted to the incumbent Director of Enforcement. The government must abide by and not give the benefit of the amendment to the present Director of Enforcement.

Must read: How Enforcement Directorate (ED) became so powerful?

The extension allowed in exceptional circumstances cannot become a rule and a norm.

Source: This post is based on the following articles

  • Extension of terms of CBI, ED chiefs by ordinance goes against SC verdicts” published in Indian Express on 16th November 2021.
  • Extension of power” published in Business Standard on 15th November 2021.
  • Exception to the rule” published in The Hindu on 16th November 2021
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