Supreme Court Refuses To Entertain Plea Challenging Selection Process Of ED Director

The Supreme Court on August 25 refused to entertain a petition challenging the process of appointment of the Director of the Directorate of Enforcement (ED) and allowed the petition to be withdrawn.

The bench comprising Justices BR Gavai, Justice PS Narsimha and Justice Prashant Kumar Mishra was hearing a PIL filed under Article 32 challenging the constitutionality of Section 25 of the Central Vigilance Commission Act, 2003.

Advocate Prashant Bhushan, representing the petitioner submitted that the current composition of the committee compromises the institutional integrity and independence of the ED.

He submitted that the selection of the head of the Directorate of Enforcement should be carried out by an independent high-powered committee, free from the influence of the political executive.

His plea stated “The CVC and Vigilance Commissioners (VCs), who constitute the selection committee, are themselves chosen by a committee dominated by members of the executive branch. The Prime Minister and the Home Minister have substantial influence over these appointments, while the Leader of the Opposition or the Single Largest Party has a minority role in the process. Moreover, even at present, there is one vacancy of Vigilance Commissioner in the 3-member Commission.”

Justice B.R. Gavai pointed out the mechanism was set up in terms of the Vineet Narain judgment and asked if the bench can get over that precedent.   

Bhushan responded that “Directions in Vineet Narain’s judgment were in 1997. We're 26 years down the line. we may need to revisit these directions.”

He expressed concerns about the political bias in the ED's functioning and contended “Power of ED has grown enormously. The last 26 years of experience shows, ED being used as a political tool by the sitting govt. Transparency is important since they perform important public functions.”

Justice B.R. Gavai responded by stating that these issues had previously been addressed and dismissed when the CVC amendments were upheld and term extensions were considered in Dr.Jaya Thakur v. Union of India.

Continuing the exchange, Adv. Bhushan submitted that “the Government controls the appointment of ED and extensions.”

He also drew attention to the selection process for the Central Bureau of Investigation (CBI) Director, which involves an independent selection committee as mandated by Section 4(A)(1) of the Delhi Special Police Establishment Act, 1946. The committee for selecting the CBI director comprises the Prime Minister, Leader of Opposition and the Chief Justice of India or his nominee judge. His plea sought a similar mechanism for the selection of the ED Director.

The bench was disinclined to hear the matter and allowed the petition to be withdrawn.

The Court observed “After arguing at some length, Shri Prashant Bhushan, learned counsel appearing for the petitioner, when this Court was not inclined to entertain the present petition, seeks permission to withdraw the petition.

Case title: Common Cause v. Union of India

Citation: Writ Petition(s)(Civil) No(s). 843/2023

For petitioner: Adv. Prashant Bhushan along with Adv. Rahul Gupta

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