The ordinance was challenged by amicus curae Anil Divan during the hearing of the multi-crore Indian Bank scam on the grounds that it was ``not only contrary to recommendations of the Law Commission but is entirely subversive of Supreme Court's judgment in the Jain-hawala case.''

Appearing for the Union, Solicitor General Santosh Hegde sought two weeks time to explain the legality of the ordinance and a three-judge Bench of Justice S P Bharucha, Justice G T Nanavati and Justice B N Kirpal posted the case for further hearing on September 22.

In his submissions, Divan said the August 25 ordinance restored the single member Central Vigilance Commission, which was expressly invalidated by the Supreme Court in the Jain-hawala judgment.

``Thus, the very group of high ranking bureaucrats whose misdeeds and illegalities were to be inquired into, would decide whether the investigative agencies should even start an inquiry,'' the amicus submitted, adding that the ordinance also ``brazenly revives the single directive by which the whole system was being subverted by persons occupying powerful positions in the political, executive and bureaucracy.''

Divan said the rationale was that such directives were not only ultra vires but went against the whole constitutional scheme of equity before the law and the upholding of the rule of law.

Opposing the clause making secretary personnel an ex-officio member of the CVC, Divan said it is the Personnel Department which controls the Central Bureau of Investigation (CBI) and is under the Prime Minister's Office (PMO). ``Unlike the other Vigilance Commissioners he (Arvind Varma, secretary personnel) does not have to take oath of office, does not go through the selection process and is a member of the Commission though not a Vigilance Commissioner,'' Divan said.

The amicus contended that ``this provision is not only contrary to the recommendations of the Law Commission but is entirely subversive of the directions given in the judgment.''

He pleaded that Varma be restrained from serving as member of the Commission and also sought a stay on further appointment of Vigilance Commissioners or other officers under the Ordinance.

It was also submitted that the choice of CVC ``is restricted only to serving or retired civil servants and is further sought to be restricted to those experienced in `policy making, vigilance and administration' thus focussing basically on the IAS and the requirement that he should be a person of impeccable integrity under the judgment was deleted.''

Divan said the Jain-hawala judgment ``clearly mentioned that the panel could be from civil servants and others. The Law Commission draft also clearly contemplated `others' being considered. Yet the ordinance confines the choice to civil servants.''

He said the authority of the CVC was wholly diluted by giving co-ordinate powers to several other Vigilance Commissioners who would again be from the category of civil servants.

By conferring original powers for investigation, Divan said the Commission will start interfering with the normal powers of investigation by the normal investigating agencies.

``What was clearly contemplated by the judgment was that the role of the CVC was superintendence by a single CVC of impeccable integrity. This idea was discarded and jettisoned,'' the amicus said.

He submitted that on close analysis of the ordinance, not only did it appear to violate the principle of equality but seemed to be subversive of the rule of law and violative of the Court order.