Carrot-and-Stick Policy Of Extending ED Director's Tenure By One Year At A Time Threatens Independence : Petitioners Tell Supreme Court

A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol was hearing a batch of petitions challenging the third extension given to the term of Enforcement Directorate chief SK Mishra and also the Central Vigilance Commission (Amendment) Act, 2021. Sankaranarayanan, appearing on behalf of one of the aggrieved petitioners, told the bench, “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, is that the investigations presided on by the director cannot be independent.” He added:

“The amendments should be struck down. The extension granted to the incumbent should be struck down and effectively his tenure should be brought to an end. There can also be no questions of equity either, because this is not a case where the court is belatedy considering the plea against an individual who has already continued in his role for several years. The gentleman has had his run, and the guillotine must be brought down now.”

Senior Advocate Abhishek Manu Singhvi echoed Sankaranarayanan’s submissions, saying that the amendments circuitously introduced a ‘probation-like situation’ while swearing by the fixity of tenure. “This amendment makes it equivalent to a probationary engagement. That's the crux. The director must perform as per the government’s will, and only then will he be granted an extension. The problem with such piecemeal extensions is that it erodes the institution's independence, which as a concept is neutral to posts,” the senior counsel argued.

Extension of tenure illegal, amicus curiae tells Court

“Men and women may come and go, but the institution should go on forever,” said the amicus curiae and senior advocate KV Viswanathan while speaking about the importance of ensuring the independence of institutions like the Directorate of Enforcement. He took the court through a catena of judgements in an effort to convince the bench that not only the extensions but also the 2021 amendment to the Central Vigilance Commission Act, 2003 enabling the central government to extend the ED chief’s tenure by one year at a time, up to a total of five years, was illegal. Reiterating the submissions he made in February, the senior counsel told the bench that the extension order and the statutory amendments were illegal “in light of the rulings in a long line of judgments from Vineet Narain, Prakash Singh I, Prakash Singh II, Common Cause I, and Common Cause II”. He further said:

“It is not about any particular political party or the government of the day, but the underlying legal position relating to the fixity of tenure and grant of extensions. When analysed in a strictly legal context, we arrive at the irresistible conclusion that the amendments and the extension fall foul of the law. In multiple judgements, the court has affirmed the principles of institutional independence and insulating these agencies from the executive in the larger interests of democracy. These agencies do important work and need not just independence but the perception of independence.”

Besides arguing that the amendments gave rise to a reasonable apprehension that officers in service would play to the tune of the government, which advocate Prashant Bhushan claimed would lead to the very purpose of the institutions being defeated and the rule of law being violated, the amicus also submitted that the ground of ‘public interest’ on which such extensions may be granted was also alarmingly vague. “There are no other conditions, and I can foresee that this might lead to grave misuse a few years down the line.”

Importantly, he also addressed a preliminary issue on maintainability raised by the Solicitor-General for India, Tushar Mehta on the ground of the lack of locus standi. The petitioners, the top law officer had insisted, were members of political parties whose senior members were facing money laundering charges and as such, were not working in the public interest. Viswanathan asserted, “There may be other motives, but insofar as maintainability is concerned, this court has consistently refused to throw out cases where the public interest is involved.” On the last day of the hearing, in response to Viswanathan’s plea to exclude the aspect relating to the political affiliations or the politics surrounding the petitioners, the bench had also plainly stated, “We are not concerned with who belongs to Bharatiya Janata Party and who belongs to Congress.”

Notably, many of the counsel, including Viswanathan, objected to the attempt by the government to justify Mishra’s extension by relying on the amendments, which the centre claimed, had retrospectively removed the basis for the court’s earlier judgement categorically enjoining it from granting any further extensions to the incumbent director. A writ of mandamus issued inter partes would be binding on the person against whom the writ has been issued, and this judicial act could not be nullified by a subsequent legislative measure, it was argued. “If this were to be permitted, it would become very easy to nullify any order of this court,” senior advocate Anoop George Chaudhari cautioned. Sankaranarayanan called this a “grave violation of the doctrine of the separation of powers”.

Questioning the extension order, Chaudhari pointed out, “Exigency refers to special circumstances. They have extended the director's tenure citing administrative exigencies, but such ‘exigencies’ cannot continue indefinitely.” The amicus curiae also disputed the logic underlying the order, saying, “Multiple extensions given to the same incumbent by law or by executive order cannot be permitted merely because some investigations are ongoing. What will happen if an incumbent resigns, for example? Someone will have to continue in their stead. There are other competent officers in the organisation to pick up the mantle.” Bhushan weighed in on the issue of the validity of the order, saying:

“Quite apart from the fact that the miscellaneous application filed by the government seeking the deletion of this court’s embargo on extending Mishra’s tenure is not maintainable on the ground that a review cannot be sought by filing a miscellaneous application, it is also to be noted that a subsequent legislative amendment cannot be a ground for seeking a review of this court’s order. Therefore, the effect of the law will remain.”

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.

Case Title

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