Supreme Court Reserves Judgment On Petitions Challenging ED Director's Term Extension & CVC Amendment Act 2021

In the course of the hearing today, Solicitor-General Tushar Mehta appeared to reiterate the centre’s preliminary objection that the public interest litigation (PIL) petitions filed by members of political parties should be dismissed since they were obliquely motivated. Among the petitioners are Congress leaders Jaya Thakur and Randeep Singh Surjewala, Trinamool Congress legislator Mohua Moitra, and TMC spokesperson Saket Gokhale. The law officer had pointed out during the last hearing that the leaders of these parties were under ‘serious investigation’ by the Enforcement Directorate. Mehta began, “The questions you are examining are at the behest of those who are being…”

“Please do not repeat that argument,” Justice Gavai interjected. He added that even while delivering the judgement in Common Cause v. Union of India (2021), the court had refused to “go into that question”. In 2021, a bench of Justices L Nageswara Rao and BR Gavai had, while holding that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time and affirming the first extension to Mishra’s tenure, had firmly held that no further extension could be granted to him.

“Your Lordships may keep that question open here as well,” Mehta suggested. He tried again, “But, I was making a legal argument…”

“Let this not be converted into a political platform,” Justice Gavai emphatically said. This is not the first time that the bench expressed its disinclination to consider the political affiliations of the petitioners when examining the question of law raised by the batch of petitions. Earlier, the amicus curiae had appealed to the bench to exclude the aspect relating to the political affiliations or the politics surrounding the petitioners. In response, the bench plainly stated, “We are not concerned with who belongs to Bharatiya Janata Party and who belongs to Congress.”

Today, in response to the Supreme Court’s judge’s remark, the solicitor-general said that it was not the centre that had ‘converted’ the top court into a political platform. “The petitioners have converted it into one,” the Mehta replied, “I will not.”

Justice Gavai went on to question the centre’s preliminary objection, saying that the membership of a political party would not necessarily disentitle them from initiating a litigation in public interest. The Solicitor-General, however, clarified that he was not trying to repeat the objection regarding the petitioners’ locus standi, but merely trying to point out that the term of the incumbent director was not extended to the detriment of other qualified officers waiting in line. 

“When the government has a justification for the extension granted, would this court’s examination nbe different, especially when there are no other officers whose chances would be affected?” the law officer asked. He further explained that the position of the director of the Enforcement Directorate was not a ‘promotional’ post. He said:

“The director is selected from a common pool of IAS officers, IPS officers, IRS officers. They are selected. A panel is prepared. It goes before the vigilance commissioners and the committee contemplated under the CVC Act. One person continuing will not take away the chance of the next below. There is no next below the director. The additional director and joint director will not get automatically promoted. They might not even be in the zone of consideration because of [eligibility requirements].”

“Therefore,” Mehta added, “This court’s parameter of judicial review would be different in a case where someone next in line approaches this court with the complaint that the continuance of the director would harm their chances, as against a case where petitions have been filed by members of political parties, whose colleagues are under serious investigation.”

Besides this, the solicitor-general also reiterated that the direction in the top court’s Common Cause judgement barring the central government from granting any further extension to Mishra’s tenure was not stricto sensu a mandamus. It was only issued in the context of the statutory framework as existed then, the law officer said. In response to the apex court’squestion of whether there was no other person who had the requisite competence to discharge the responsibilities, Mehta said that while the absence of one person would not stop the agency as a whole from functioning, the presence of one person and their leadership could make a big difference, especially in light of the FATF peer review.

Prima facie of the opinion that Common Cause judgement requires reconsideration: SC Bench

Notably, Justice Gavai said that the top court’s decision in Common Cause needed reconsideration. “Prima facie, I find that it was wrongly decided.” He added that his colleagues on the bench also concurred with him, but clarified, “We think it needs to be reconsidered, but don’t know which way it will go.” He said:

“The question is not on extension, but as to whether, once it has been held that there is no restriction on the government to appoint a person for more than two years, can a writ of mandamus be issued preventing further extension?.”

What is interesting is that Justice Gavai was on the bench that had delivered the decision two years ago. “You can raise this issue and we will consider it since we are sitting in a three-judge combination,” the judge told Additional Solicitor-General SV Raju. However, the law officer said the Centre did not want to press that argument. “It would open a pandora’s box,” he said. Smiling, he added, “A chunk of the judgement is in my favour, so I would not insist on that.”

Government retains majority in committee appointing ED chief: Petitioners, amicus tell SC

The petitioners forcefully challenged the Solicitor-General’s contention that the rigours of the selection process of the ED chief ensured that the post was insulated from executive interference. Senior Advocate Gopal Sankaranarayanan argued that owing to the majority enjoyed by government secretaries on the committee appointing the director of the Enforcement Directorate, the law officer’s argument was both legally and factually wrong. The senior counsel informed the bench, “They have not had a second vigilance commissioner in a very long time now.” He explained:

“Right now, what you have is the Central Vigilance Commissioner, one vigilance commissioner, and three secretaries to the government. This is a 3:2 majority. This kind of a majority was enough for a constitution bench to strike down NJAC. Independence of the judiciary would have collapsed if one less person held it to be unconstitutional. If one extra person could have made the independence of the judiciary collapse, surely, for the appointment of ED directors, one extra person makes a huge difference. The fact is that they won’t appoint a vigilance commissioner and would retain control of the committee.”

Amicus curiae and senior advocate KV Viswanathan, while urging the court to strike down both the 2021 amendment to the CVC act as well as the extension granted to Mishra, lent his support to Sankaranarayanan’s argument. Taking the court through the minutes of the meeting of the committee, he said, “In the first meeting, you will find that the Central Vigilance Commissioner is there, and the three government secretaries are there. No vigilance commissioner was present. In the second meeting, one vigilance commissioner is there, and the other is given leave of absence.”

“There is no mandate that all of the vigilance commissioners should assemble,” Viswanathan added, “There have been two or three instances where only the government secretaries have called the shots.”

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 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 the a bench comprising Justices Gavai and Aravind Kumar that not only the third extension granted to the chief of 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.

Over the course of several hours, the counsel for the petitioners 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 heads of the said agencies. Sankaranarayanan explained:

“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.”

Viswanathan also spoke about the importance of ensuring the independence of institutions like the Directorate of Enforcement, ardently contending that such institutions ought to be insulated from executive influence in the larger interests of democracy. Notably, he told the bench, “These agencies do important work and need not just independence but the perception of independence.”

The solicitor-general on the other hand, sought to defend the government's decision to extend the tenure of the ED director on the ground that ensuring continuity in leadership was imperative, especially in light of the upcoming Financial Action Task Force (FATF) peer review due to take place in 2023. India's performance according to the watchdog's norms will be assessed this year, after a decade, the law officer informed the bench. He also pointed out that based on this assessment, countries are categorised into lists indicating the level of their performance, which would ultimately entitle (or, disentitle) them from not just receiving financial assistance from international organisations such as the World Bank and the Asian Development Bank, but also borrowing from foreign banks and a host of other benefits.

Besides arguing that the impugned amendment was essential in the national interest, the solicitor-general also vigorously disputed the petitioners' contention that an incremental one-year-at-a-time policy of granting extensions would amount to a carrot-and-stick strategy employed by the government to ensure the obedience of the directors of investigating agencies like Enforcement Directorate and Central Bureau of Investigation. “This argument is a double-edged sword,” said the law officer. He explained, “The policy of granting one-year-long extensions at a time would actually ensure that the officer does not become a law unto themselves, and second, so that they do not become non-performers.”

Case Title

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

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