CBI/ED Tenure Extension Day #1: Dr. Singhvi Explains Threat to Independence of ED
Challenge to Tenure Extension of CBI and ED DirectorsJudges: U.U. Lalit CJI, S.R. Bhat J
On May 5th 2022, Chief Justice U.U. Lalit and Justice Ravindra Bhat briefly heard a group of petitions challenging the tenure extension of Sanjay Mishra, director of the Enforcement Directorate (ED). The petitions were filed by Trinamool representatives Mahua Moitra and Saket Gokhale, Congress leaders Jaya Thakur and Randeep Surjewala and advocate M.L. Sharma among others. Today, the Bench heard Solicitor General Tushar Mehta, representing the Union, and Senior Advocate Dr. Abhishek Manu Singhvi, representing the petitioners.
Along with Mr. Mishra’s specific tenure extension, the petitions challenge amendments to the Central Vigilance Commission (CVC) Act, 2003. These Amendments, enacted days before Mr. Mishra was due to retire, enable the government to extend the tenure of the ED and Central Bureau of Investigation’s (CBI) director by one year at a time for a total period of up to five years.
Background
Mr. Sanjay Kumar Mishra, the director of the ED was meant to retire on November 17th, 2021. However, three days before his retirement, on November 14th, 2021, the President of India issued the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These Ordinances permit the extension of the tenures of the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED). They amended the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the Central Vigilance Commission Act, 2003 (CVC Act). The Ordinances allow up to 3 one-year extensions of the CBI and ED director’s tenure.
Previously, in Common Cause v Union of India (2021) the Supreme Court heard a challenge to the extension of Mr. Mishra’s tenure as ED director for an additional year after his initial two-year tenure expired. The SC held that extensions could be granted in ‘rare and exceptional cases’ for a short period of time. However, they made it clear that no further extension was to be granted to Mr. Mishra.
On November 18th, 2021, Mahua Moitra, a Member of Parliament from the All India Trinamool Congress (TMC), and Congress Leader Randeep Singh Surjewala filed petitions at the SC challenging the Ordinances. They argued that the Ordinances overrode and were contrary to the Court’s decision in Common Cause and allowed the Union to further extend Mr. Mishra’s tenure.
On December 14th, 2021, Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021. These Amendments confirmed the provisions for tenure extension that were first passed through the Ordinances.
On July 13th, 2022, Congress leader Jaya Thakur, who was among those who challenged the Ordinances, asked the Court to list the challenges to the Amendments, which the SC agreed to. On August 2nd, 2022, a 3-Judge Bench comprising Chief Justice N.V. Ramana, and Justices Krishna Murari and Hima Kohli issued notice to the Union government to respond to the challenges.
On March 23rd, 2023, a 3-Judge Bench led by Justice B.R. Gavai started hearing the case.
Dr. Singhvi: ‘Dangling’ One Year Extensions Damages Independence of the ED
Addressing the Court briefly, Dr. Singhvi argued that ‘dangling’ one year extensions before a soon to retire director endangers the independence of important institutions like the CBI and ED. Notably, the ED under director Sanjay Kumar Mishra has arrested several leaders from Opposition parties, including Lok Sabha Member Karti Chidambaram and Karnataka Congress President D.K. Shivkumar, for money laundering offences.
Dr. Singhvi mentioned two past Judgments in which the Supreme Court discouraged such tenure extensions, except in the ‘rarest of rare’ cases—Vineet Narain (1997) and Alok Verma (2018).
SG Mehta: Amendments Change the Basis of the Alok Verma Decision
SG Mehta, representing the Union government, stated that the Ordinances and the Amendments allowing the tenure extensions ‘changed the basis’ for the SC’s Vineet Narain and Alok Verma Judgments. He referenced a well-established principle according to which the legislature may undo a Judgment through an amendment if it changes the facts that form the underlying basis of the Judgment.
SG Mehta further emphasised that the CVC, which appoints the ED director and approves their tenure extension, is an independent body. He stated that CVC members are appointed jointly by the Prime Minister, Chief Justice and Leader of the Opposition. Tenure extensions approved by the CVC, hence, were not a partisan decision.
M.L. Sharma Demands to Be Made Lead Petitioner
Advocate M.L. Sharma, a serial PIL-ist, demanded the Court’s time as well. Mr. Sharma complained that the registry had shifted his name to the end of the list of petitioners at the Solicitor General’s behest. He asked to be reinstated as the lead petitioner, whose name the Court’s eventual Judgment will bear.
Justice Bhat clutched his head in his hands at this request. CJI Lalit reminded Mr. Sharma that his priority should be the case he has raised, not his place on the list of petitioners.
SG Mehta is expected to file the Union government’s counter soon. The Court has scheduled this case next on September 19th, 2022.