Article 123 of the Indian Constitution authorises the executive the prerogative to formulate ordinances. The same is bestowed upon the executive to ensure that any emergency in the country that requires rapid responses is adequately dealt with when the parliament is not in session for the length of time. It is an impactful instrument in the hands of the President, who approves the ordinance. Because an ordinance is enforceable until it is addressed to the parliament and then either accepted or rejected, it is functionally a law even if not sanctioned by the parliament, the formal law-making body, during the time parliament is not in session. It is reasonable to surmise that the authority of ordinance should be used with caution and only when absolutely required. Is this, nonetheless, the prevailing reality?
Honourable President Ram Nath Kovind awhile back authorized two ordinances empowering the Union government to expedite the tenures of the Directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) for up to five years, increasing from the standard two years. The revisions to the Delhi Special Police Establishment (DSPE)
Act and the Central Vigilance Commission (CVC Act) Act allow the heads of the ED and CBI, respectively, to garner three one-year extensions after their official two-year terms lapse.
The scepticism around this ordinance stems from two essential issues. Firstly, the ordinances were promulgated on November 14th, only 15 days before Parliament is slated to assemble for the Winter Session. This begs the issue of intent and what made the ordinance so urgent and crucial that it cannot be delayed for 15 more days. According to Article 123(1) of the constitution, the President may not issue an ordinance unless he is persuaded that there exist instances that necessitate 'immediate action.' What exactly is there about this that necessitates immediate action? This statement of purpose of the ordinance lucidly mentions that:
“The Directorate of Enforcement has sole jurisdiction to investigate money-laundering offences in India and co-ordination with global counter-parts, at times it becomes self-
defeating to have tenure restriction at supervisory and decision-making position considering that at the level of international coordination, it is the personal individual knowledge, information and diplomacy which are required more than just institutional knowledge and information. Considering that the Director of Enforcement and Director, CBI are an
important part of the concerted global actions against corruption and money-laundering, legal provisions or service rules restricting their tenure may be counterproductive”
This argument, however, is vulnerable to scrutiny because of the message it sends to those in line for promotion. Furthermore, even if we accept the point, the ordinance fails to explain what the urgency was that rendered it so critical that it could not have endured 15 additional days?
Secondly, this order contradicts the Supreme Court's decision regarding the extension of tenure of Sanjay Kumar Mishra, the director of the ED (retrospectively). Mishra was titled ED Director on November 19, 2018, for a two-year term. On November 13, 2020, barely days before his tenure was set to lapse, the President changed his prior decree and awarded Mishra a three-year term which would was set to expire on November 19, 2020 the Supreme Court had directed the government not to prolong Mishra's tenure any more, regardless of the fact that his three-year tenure was declared to be legitimate.
The bench of Justices L Nageswara Rao and B R Gavai declared resoundingly that "no further extension shall be granted" to S. K Mishra beyond November 2021.The bench further held that extending the term of officials who have reached the age of retirement should only be done in exceptional and extraordinary circumstances. Whilst Mishra's prolongation may appear to be the immediate result, the legislation also sets the stage for similar appointments in the coming.
Prolonging the tenure of the two agencies' chiefs also contradicts the Supreme Court's decision in Vineet Narain & Others versus Union of India & Others, wherein it was stipulated that the term for the heads of the ED and CBI should be limited to two years. The court's verdict in this pivotal judgement is that the agencies require "permanent insulation from external influences" has accumulated more relevance.
Furthermore, a robust procedure for the appointment of an ED director is designed to ensure that only the best candidates get to the top position. Candidates are generally in their late 50s and have a strong employment record. A standardised title for the top position ensured that the succession process was uniform and completely transparent. Now that the term is malleable ranging from two to five years it is totally in the hands of the government, and bureaucrats worry their career prospects may decline as a consequence
Anti-corruption crusaders lament that law enforcement agencies, which are already perceived as puppets of the government, would become even more so as their leaders feel obligated to the politicians who extended their tenure. Importantly, this comes at a time when the ED is pursuing investigations into officials from the opposing party. This sets a negative precedent for future instances. What does it indicate about the notion of balance of powers if the legislature's role in drafting legitimate laws is diluted? What sort of message does it evoke if the executive notices that the ability to issue ordinances is a shortcut to subvert the current democratic framework and, as a result, sidestep parliamentary scrutiny?
The problem is not confined to the current state of affairs. Misuse of such a meaningful power has far-reaching ramifications that must be thoroughly vetted. Afterall, injustice anywhere is a threat to justice everywhere.
 Vineet Narain & Others versus Union of India & Others, 1996 SCC (2) 199.
This article is written by Vikram Krishnan of Tamil Nadu National Law University.