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Saturday, November 27, 2021

Ordinances extending tenures of CBI, ED chiefs show a worrying trend

Binoy Viswam writes: Investigative agencies are often used by the government to accomplish its political goals.

Written by Binoy Viswam |
Updated: November 20, 2021 6:45:50 am
The Central Bureau of Investigation headquarters in New Delhi (Express Photo)

On a polluted Sunday, the government embarked once again on its favourite legislative route — promulgating ordinances. This time, it got the President to work overtime to release two ordinances on a weekend. This is a message to citizens about the level of political pollution that the country is being plunged into. Parts per million is a unit used to measure environmental pollution. However, India’s democratic senses have failed to evolve a way of measuring political pollution.

The two ordinances promulgated were the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021, which extend the tenures, respectively, of the director of the Central Bureau of Investigation and the Enforcement Directorate. Advocates for the government may argue that the government has the right to adopt such measures when the necessity arises. Article 123 of the Constitution empowers the government to issue ordinances when extreme circumstances warrant them. But when the Winter Session of Parliament is set to convene on November 29, what was the government’s constitutional validity for these two ordinances?

The Central Vigilance Commission (Amendment) Ordinance, 2021 states, “…Provided that the period for which the Director of Enforcement holds the office on his initial appointments may, in the 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.” What is the public’s interest in the extension of Sanjay Kumar Mishra’s tenure as the ED Director? The government may argue that its interest and that of the public are the same. Mishra was appointed to the present post in November 2018 and was to retire in November 2020. On November 13, 2020, he was given a one-year extension. When this was challenged in the Supreme Court, the bench ordered the government not to grant Mishra any further extension. It further stated that any extension of tenure during superannuation must be for a short period and the reasons must be recorded. The court stated unequivocally that such extensions may only be granted “in rare and exceptional situations”. The details of the current situation are only known to the political masterminds who run the show. It is so rare and exceptional a situation that the Centre can now give a one-year extension thrice after the completion of the initial two years. Given Mishra’s track record and the government’s political highhandedness, it’s easy to see how exceptional these stipulations are.

Investigative agencies like the ED and CBI are often used by the government to accomplish its political goals. Democracy and its institutions are sidelined to serve the interests of the ruling class. Parliament is a victim of this ideological assault — becoming more ornamental with every passing day. This is a warning to the nation on the 75th year of its independence and before the 72nd anniversary of the Constitution. In our country today, ordinances are no longer just ordinances. They are the forerunners of something harsher to come.

This column first appeared in the print edition on November 19, 2021 under the title ‘Not in public interest’. The writer is a Member of Parliament and Secretary of the CPI National Council

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