House not ordinance extending tenures of key officials of premier agencies should be debated in parliament

House not ordinance extending tenures of key officials of premier agencies should be debated in parliament

Article 123 of the Constitution allows the President to promulgate an ordinance when Parliament is not in session. Ordinances are meant to be used when circumstances demand immediate action. When assessing the procedural merit of the two ordinances promulgated recently to empower GoI to extend the tenure of the directors of CBI and ED for up to five years, some would make the case that Parliament’s winter session was not slated to begin before one of the officers was to demit office, and therefore an ordinance was required. However, these deadlines are not surprises, especially given that the Supreme Court had also heard the matter of extensions earlier. Therefore, it can also be argued that relevant amendments could have been placed before Parliament earlier.

Ordinances evoked some uneasy responses during Constituent Assembly debates. BR Ambedkar even pointed out that ordinances are not meant to be used as a parallel power of legislation. Sadly, that is what happened in many cases. The most egregious example perhaps is that of Bihar where between 1967 and 1981, 256 ordinances were repeatedly re-promulgated and kept alive for 14 years.

A related effect of changing legislation this way is that it doesn’t help institutions they are meant for. A landmark Supreme Court judgment in 1997 created a legal structure to give investigative agencies a degree of operational autonomy, and also statutory status for the CVC. Subsequent legislations tried to build on it, particularly the November 2014 amendment to CBI’s umbrella legislation. It created a selection committee for the director’s post that included the leader of the opposition. It’s all the more reason why the changes made through the ordinance should have taken the normal parliamentary route.

Ordinances are meant to deal with emergencies. Data shows otherwise. PRS Legislative Research’s data shows that 16 and 15 central ordinances were promulgated in 2019 and 2020 respectively. In the 2010s, the yearly average was 7.1. Parliament is the appropriate body for law-making and decisions that weaken its role should be avoided. These two ordinances should be now placed before Parliament and debated.