CBI/ED Tenure Extension Day #2: Petitioners Argue Tenure Extensions Oppose Past SC Decisions
Challenge to Tenure Extension of CBI and ED DirectorsJudges: B.R. Gavai J, Vikram Nath J, Sanjay Karol J
Today, a 3-Judge Bench led by Justice B.R. Gavai heard a batch of petitions challenging the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021. They allow the Union to extend the Director tenures of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED).
In today’s hearing, Sr. Adv. Anoop G. Chaudhary began the arguments on behalf of the petitioners. He was followed by Sr. Advs. Gopal Shankarnarayanan, Prashant Bhushan and A.M Singhvi. Finally, Sr. Adv. K.V. Viswanathan presented his findings as the Amicus Curiae of the case.
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.
Repeated Extensions Are Contrary To Past SC Decisions
Mr. Chaudhari commenced his arguments by specifically challenging the extension of Mr. Sanjay Mishra’s tenure as the Director of the ED. He argued that in Common Cause v Union of India (2021), the SC had already heard a challenge to the extension of Mr. Mishra’s tenure and established that after his initial two-year tenure expired, no further extensions could be granted to him. Despite this, his tenure was extended for the third time on November 17th, 2022.
Further, Mr. Chaudhari stated that the Ordinances allowing his extension were illegal as they directly opposed the decision of the SC. He also argued that the Acts passed by the Parliament recognising these Ordinances could not retrospectively undo a decision of the SC.
Mr. Gopal Shankaranarayanan appeared next. He argued that the Judgement in Common Cause (2021) held that Directors’ tenures of autonomous bodies (like the CBI/ED) can only be extended under ‘rare and exceptional’ circumstances and for a ‘short period’ of time. A ‘short period’ means a maximum of 6 months according to the SC’s judgement in Prakash Singh v Union of India (2006).
In the present case, Mr. Mishra’s tenure was supposed to end in November 2021. However, he continues to serve as ED Director after multiple extensions. The Union has provided no reasons for Mr. Mishra to continue in his position for three years.
Repeated Tenures Compromise Director’s Independence And Denies Opportunity To Other Candidates
Mr. Shankaranarayanan, Mr. Bhushan, and Mr. Singhvi also argued that if Directors knows that the Union can extend their tenure repeatedly, they will begin to act according to the whims of the Union to retain their position. This will compromise the independence of the director. This also sets a wrong precedent for future Directors that if they remain a ‘good boy’ in the eyes of the government, their tenure will be extended.
The petitioners finally argued that repeated tenure extensions violate the right to equality of other eligible persons worthy of the post from being appointed.
Amicus Curiae: Extension of Tenures is Illegal.
Finally, Amicus Curiae Mr. K.V. Viswanathan also presented his findings at the hearing. His ‘sole and irresistible conclusion’ in the case was that the extension of tenures was illegal and opposed the rule of law.
He clarified that his conclusions were not connected to a person or party. His sole consideration was the long-term impact of the Amendments on the independence of enforcement authorities such as the CBI/ED.
The Amicus cited the SC’s Judgements in Vineet Narain v Union Of India (1997) Common Cause (2021), and Prakash Singh (2006). He stated that these Judgements held that extension of tenures breached the principles of institutional independence.
Further, Mr. Mishra’s tenure was extended citing ‘public interest’ and the Union provided no further justification for his nearly 5-year tenure as ED director.
The Bench will hear arguments from Solicitor General Tushar Mehta, representing the Union, on April 20th, 2023.