New ordinances issued will extend the tenure of ED and CBI chiefs to upto five years. An update.
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Fresh ordinances - longer tenures for CBI and ED Directors
- The story: The Modi government on 14th November 2021 brought two ordinances to extend the tenures of directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) up to a maximum of five years from the present two years. The ordinances shall come into force "at once".
- What the Ordinances do: Amending Section 25 of the Central Vigilance Commission Act, 2003, the Central Vigilance Commission (Amendment) Ordinance, 2021, promulgated by the President of India, reads: "Provided that the period for which the Director of Enforcement holds the office on his initial appointment may, in public interest, on the recommendation of the Committee under clause (a) and for the reasons to be recorded in writing, be extended up to one year at a time".
- The ordinance adds "provided further that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment". It adds "whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action".
- As regards the CBI, the Delhi Special Police Establishment (amendment) Ordinance, 2021 has amended Section 4 of the Delhi Special Police Establishment Act.
- Benefitting the incumbent: The move may pave the way for the extension of tenure of current ED director SK Mishra, whose extended one-year term was to expire in Nov 2021. Mr Mishra, an Indian Revenue Service officer, superannuated in May 2020 and was given a year extension in November 2020. Mishra was initially appointed as ED director for two years beginning November 2018.
- Mishra's retrospective one-year extension was challenged in the Supreme Court by NGO Common Cause. Dismissing the PIL argued by senior advocate Prashant Bhushan, a division bench of the SC in September held "any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period".
- Refusing to interfere with the one-year extension, the SC ruled "we do not intend to interfere with the extension of tenure of the second respondent (SK Mishra) in the instant case for the reason that his tenure is coming to an end in November 2021. We make it clear that no further extension shall be granted to the second respondent)".
- The judgement said "though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases". The SC further said "reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the committee constituted under Section 25 (a) of the Central Vigilance Commission (CVC) Act".
- Rejecting the PIL, the SC said "prescription of a minimum period of two years is to ensure that the Director of Enforcement is not transferred or shifted from the said post during the course of investigation of serious offences. There is no ambiguity in Section 25 (d) of CVC Act and the words 'not less than two years' simply mean a minimum of two years. There is no scope for reading the words to mean 'not more than two years'".
- Mr Bhushan later said that "the current ED director cannot be reappointed in light of the (said) Supreme Court order. If he (Mishra) is granted further extension after this ordinance, it will be contempt of the Supreme Court order. So far as the ordinance is concerned, we will consider challenging it after examining the same."
- It was not known whether the government had decided to extend Mishra's tenure.
- The legal point: Experts say that if a court interprets a law as it stands and such an interpretation runs contrary to legislative policy, the government using its legislative power through the ordinance route can take away the basis or substratum of a judgement. The court has upheld as that is considered a legitimate exercise of legislative power. But this power cannot be used to expressly undo a specific judgement. In this case, it seems to be that the ordinance has been promulgated only to get around the express directions of the court and this is legally impermissible. That would invite judicial scrutiny.
- EXAM QUESTIONS: (1) What are the rules governing ordinaces in India? Explain. (2) If governments make laws (or issue ordinances) with the specific goal to undo a particular judicial pronouncement, what could be the end result? Explain technically.
#Ordinances #Judiciary #ED #CBI
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