From the Viewsroom

Ordinance overuse

Poornima Joshi | Updated on November 17, 2021

Issuing ordinances to extend officers’ tenure just before the Parliament session militates against the Constitutional scheme as also undermines institutional integrity

It is hard to accept that it was an exigency that necessitated the promulgation of twin ordinances last weekend to extend the tenure of two central investigating agencies — the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).

Given the fixed nature of the officers’ tenure, the government was surely not oblivious to the fact that the Winter session of Parliament was not scheduled to begin before one of the officers was to demit office. If the intent was to continue the present incumbent in office, it should have been made clear to Parliament when it had convened during the monsoon session.

That the government did not deem it necessary to tell Parliament that it wants to extend the tenure of CBI and ED chiefs for three years with a yearly review only serves to validate the charge that the autonomy of the top investigating agencies is being undermined.

It simultaneously lends credence to the argument that the present government has normalised this practice that militates against the Supreme Court’s repeated assertions that the ordinance route is to be adopted only in the case of extreme exigencies.

“The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends,” observed Justice PN Bhagwati of the Supreme Court in DC Wadhwa-versus-State of Bihar.

In DC Wadhwa’s case, it was discovered that Bihar had issued a staggering 256 ordinances between 1961 and 1981 of which 69 were repromulgated several times. Repromulgation of ordinances, in fact, was later termed as a “fraud” on the Constitution by the Supreme Court in Krishna Kumar Singh-versus-State of Bihar. But that has not stemmed the practice; the Indian Medical Council Amendment Ordinance, for instance, was issued in September, 2018 and re-issued in January, 2019 as it was passed by only one House of Parliament in the intervening session. The Opposition is girdling up for the upcoming session with the TMC especially targeting the Centre for “ordinance overuse”.

How the Centre responds would be instructive in understanding whether Constitutional propriety has any place in the way laws are made in India nowadays.

Published on November 17, 2021

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