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. This raises questions about Government’s use of ordinance as the same matter has already been adjudicated by the Supreme Court before.
Who can promulgate an ordinance?
Article 123 of the Constitution allows the President to promulgate an ordinance when Parliament is not in session.
According to PRS Legislative Research’s data 16 and 15 central ordinances were promulgated in 2019 and 2020 respectively. In the 2010s, the yearly average was 7.
Misuse of an ordinance making power
Although BR Ambedkar said that ordinances are not meant to be used as a parallel power of legislation, still there have been several instances when the various governments used ordinances to bypass normal legislative process.
|Read more: Misuse of Ordinance Making Power|
Why does the present ordinance defeat its very purpose?
The 1997 SC judgment (Vineet Narain Judgment) created a legal structure to give operational autonomy to investigative agencies and statutory status to CVC.
The November 2014 amendment to the DSPE Act strengthened it further by providing for a selection committee for directors posts which included the Leader of Opposition in the Lok Sabha. This ordinance reverses the trend where the SC and GoI were progressively taking such matters through the legislative route.
|Read here: Extension of terms of CBI, ED chiefs by ordinance goes against SC verdicts|
Source: This post is based on the article “House not ordinance: Extending tenures of key officials of premier agencies should be debated in Parliament” published in the Times of India on 16th November 2021.