Challenge To ED Chief's Tenure Extension | Not Concerned With Politics Of Petitioners, Says Supreme Court

“We are not concerned with who belongs to Bharatiya Janata Party and who belongs to Congress", said the presiding judge of the bench Justice Gavai after the amicus curiae, KV Viswanathan told the bench also comprising Justice Vikram Nath, “My submissions will be purely on the law. I am not concerned with the politics of the petitioners or the individual cases. I would appeal to you to exclude that aspect from the argument as well because this is a legal issue". Vishwanathan had told the bench during the last hearing that the extensions given to the ED director and also the amendments made to the CVC Act are illegal.

Bench expresses displeasure at the absence of Solicitor General

The bench has adjourned the hearing to Thursday, March 23 at the centre’s behest, but not before expressing their severe dissatisfaction with a request for granting a pass-over being made due to the absence of Solicitor General Tushar Mehta. Justice Gavai said, “On the last day, we had clearly stated that this matter would start at the time specified. The Solicitor-General had assured that on no grounds would an account be made to adjourn the matter. Is it not his duty to be here then? This is not fair to the court.”

Initially, the bench seemed inclined to let the counsel for the petitioners open their submissions, even in the absence of the Solicitor-General. Advocate Kanu Agrawal, appearing for the Union Government, however, pointed out that no law officer was present in court. “We kept it as the first item after fresh matters. Should the Union of India not have extended us the courtesy of arranging someone to be here by 10:30 AM?” Justice Gavai asked. You have a ‘battery’ of additional solicitor-generals, the furious judge added.

It was only after Additional Solicitor-General SV Raju personally came to the courtroom and explained that Mehta had some ‘personal difficulties’ that would prevent him from appearing in court, did the bench finally relent. Justice Gavai added in jest, “Whenever we see the Solicitor-General in court, we get an impression that the matter is likely to be adjourned.”

“But today he is not there,” Raju responded.

“The impression today, therefore, is fortified in absentia,” Justice Gavai quipped.

Background

The central government has been embroiled in a prolonged political controversy over its decision to extend Mishra’s tenure, who was first appointed in November 2018. According to the appointment order, he was set to retire two years later on reaching the age of 60 years. However, in November 2020, the Government retrospectively revised the order, increasing his tenure from two years to three years. The Supreme Court was moved to examine the validity of this retrospective revision and extension of Mishra’s tenure by an additional year in Common Cause v. Union of India. A division bench headed by Justice L. Nageswara Rao held that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time. While affirming the move to extend Mishra’s tenure, the apex court cautioned that no further extension was to be granted to the Chief of the Directorate.

In November 2021, three days before Mishra was about to retire, two ordinances were promulgated by the President of India, amending the Delhi Special Police Establishment Act, 1946 and the Central Vigilance Commission Act, 2003. These ordinances eventually culminated into bills that were approved by the Parliament in December. On the strength of these amendments, the tenure of both the CBI and ED Directors could now be extended by one year at a time till the completion of five years from the initial appointment. In November of last year, Mishra was given another one-year extension, which has been challenged now.

The recent amendment to the Central Vigilance Commission Act has also been challenged before the apex court in at least eight separate public interest litigations. The petitioners include Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. Apart from being assailed for having violated the injunction issued by the apex court in Common Cause, the ordinances were challenged for conferring "unfettered discretion" on the Union over the appointment and tenure of the Directors of CBI and ED, and therefore, allegedly compromising the independence of the investigative bodies.

In a counter-affidavit, the Centre told the Supreme Court that the petitions are motivated by oblique political interests since they have been filed by and on behalf of petitioners belonging to political parties whose leaders are currently being investigated on charges of money laundering. The petitions have been filed “to ensure that the Enforcement Directorate does not and cannot discharge its duties fearlessly,” alleges the Central Government. “The petitioner would only be convinced that these agencies are independent if these agencies were to turn a blind eye to the offences committed by the political leaders of their political party,” the affidavit stated.

In a significant development, in February, the amicus curiae told a bench comprising Justices Gavai and Aravind Kumar that not only the third extension granted to the chief of the Enforcement Directorate, but also the amendment to the Central Vigilance Commission Act permitting the central government to extend the tenure by one year at a time, up to a total of five years, was illegal. “The extension order and the statutory amendments, keeping in mind the long line of judgments from Vineet Narain, Prakash Singh I, Prakash Singh II, Common Cause I, and Common Cause II, are illegal. Not only the extension but also the amendments,” Viswanathan told the bench.

Case Title

Jaya Thakur v. Union of India & Ors. | Writ Petition (Civil) No. 1106 of 2022