Supreme Court Rejects Argument That 'Piecemeal’ Extensions Will Affect Independence Of Directors Of CBI & ED; Upholds Amendments To CVC Act & DSPE Act

“It is not at the sweet will of the government that the extensions can be granted to the incumbents in the office of the Director of CBI or the Director of Enforcement. It is only on the basis of the recommendations of the committees which are constituted to recommend their appointment and that too when it is found in public interest and when the reasons are recorded in writing, such an extension can be granted by the Government.”

A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol delivered this verdict in a batch of petitions challenging the extension granted to Enforcement Directorate (ED) chief SK Mishra by the central government, as well as the 2021 amendments to the CVC Act, the DSPE Act, and the Fundamental Rules. The petitioners included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. The bench had reserved its judgement in May.

The amendments that formed a subject-matter of the constitutional challenge before the apex court introduced, to both the CVC Act and the DSPE Act, two provisos to the provision dealing with the appointment of the ED or CBI directors, which allowed their initial two-year-long term to be extended by the central government, in public interest and for reasons recorded in writing, for not more than one year at a time, and till the completion of a total term of five years. However, the Union of India can grant such extensions only on the recommendation of the committees under the respective acts empowered to make recommendations to the government for the appointment of the heads of these agencies. Under the CVC Act, the committee is headed by the central vigilance commissioner, and also comprises the vigilance commissioners, the home secretary, the personnel secretary, and the revenue secretary. Under the DSPE Act, this committee is chaired by the prime minister, and includes the leader of opposition (or leader of the single largest party opposition party) and the Chief Justice of India.

The petitioners had raised concerns about the independence of investigating agencies and how it was threatened by what senior advocate Gopal Sankaranarayanan described as a ‘carrot-and-stick policy’ of granting piecemeal extensions of only one year at a time to the directors. Sankaranarayanan had argued, “The problem of the carrot-and-stick policy of dangling extensions over the incumbent and making the grant of further extensions contingent on their performance, the investigations presided by the director cannot be independent.”

Amicus curiae KV Vishwanathan – who has since been elevated to the top court as a judge – had also spoken about the importance of ensuring the independence of institutions like the ED and the CBI, ardently contending that such institutions ought to be insulated from executive influence in the larger interests of democracy. “These agencies do important work and need not just independence but the perception of independence,” the senior counsel (as he then was) had told the bench.

In its judgement, the Supreme Court considered whether the impugned amendments would permit the executive to adopt a ‘carrot-and-stick’ policy and whether they would “frustrate the very purpose of insulating the aforesaid high posts from extraneous pressures”. However, the bench headed by Justice Gavai found itself at odds with the line of argument advanced by the petitioners. With reference to the composition of the committees on the basis of whose recommendations, the central government appointed or extended the terms of the ED and CBI chiefs, the court found the provisions under challenge to be in compliance with the Vineet Narain dictum, in which the top court had highlighted the necessity of insulating investigating agencies like the CBI and the revenue department from any extraneous influence to enable them to fairly and effectively discharge their duties:

“What has been directed in the case of Vineet Narain and in subsequent judgments relied is that [the director of investigating agencies] should have a minimum tenure of two years irrespective of their date of superannuation. By the impugned amendments, the said period is not tinkered with. What has been done is only a power is given to extend their period for a period of one year at a time, subject to a maximum number of three such extensions. However, this has to be done only when the Committee which is constituted to recommend their appointment finds it necessary, in public interest, to grant such extension. It is further required to record the reasons in writing for the said purpose. The aforesaid provisions with regard to appointment have been enacted in pursuance to the directions given by this Court in the case of Vineet Narain.”

Rejecting the argument that a policy of granting incremental extensions would make the offices of the directors of the Enforcement Directorate or the Central Bureau of Investigation susceptible to executive influence and chip away at the independence of the concerned agency, the bench held:

“When a committee can be trusted with regard to recommending their initial appointment, we see no reason as to why such committees cannot be trusted to consider as to whether the extension is required to be given in public interest or not. At the cost of repetition, such committee is also required to record reasons in writing in support of such recommendations. We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED or CBI and has the effect of wiping out the insulation of these offices from extraneous pressures.”

Reports about other aspects of the judgment can be read here.

Case Details

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

Citation : 2023 LiveLaw (SC) 518

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