Tenure Extension to CBI and ED Directors: Judgement Summary

Independence of the Investigative Institutions Untouched 

The Bench held that the Amendments do not hamper the independence of the CBI and ED. The Court was of the view that a statute cannot be declared unconstitutional ‘lightly’. To declare an enactment as unconstitutional, there has to be a ‘flagrant violation of constitutional provisions’. 

The petitioners had argued that ‘piecemeal’ tenure extensions would be detrimental to the overall independence of the investigative bodies as it permits a ‘carrot and stick’ policy. This would potentially violate the right to fair investigation and trial. It was speculated that the amendment would compel incumbent directors to work according to the wishes of the Union Government for an extension. The Bench dismissed these arguments by enumerating the process of appointment of directors for both the CBI and the ED. 

The Director of the ED is recommended by a committee led by the Central Vigilance Commissioner and other members including secretaries from the Ministry of Home Affairs, Ministry of Personnel and the Department of Revenue. The Central Vigilance Commissioner, who leads this committee, is appointed by a three-member body comprising the Prime Minister, the Minister of Home Affairs and the Leader of the Opposition in the Parliament. 

Similarly, the Director of the CBI is recommended by a committee consisting of the Prime Minister, the Leader of the Opposition in the Parliament, and the Chief Justice of India (or a Judge of the Supreme Court nominated by the CJI). 

The Bench held that the procedure in both instances has very little government influence. The committees, under the new amendment, are empowered to recommend an extension to the incumbent directors when it is found in the ‘public interest’. Interestingly, the Judgement remarked that the committee which recommended the initial appointment of the incumbent director cannot be prohibited from recommending an extension of the same director. The Bench was convinced by the arguments of the Union that the extensions are not being granted at the ‘sweet-will’ of the Government. 

Extension Granted to Mr. Sanjay Kumar Mishra Held Illegal

The Bench held that the extension granted to Mr. Mishra was illegal and directed the Union government to appoint a new director until July 31st, 2023. Mr. Mishra would retain his position as ED Director until then. 

In November 2020, the Union government extended the tenure of ED Director Mr. Sanjay Kumar Mishra by one year. This extension was challenged in Common Cause v Union of India (2021), where the Supreme Court upheld this extension. They held that such an extension can be granted only in ‘rare and exceptional cases’. However, they made it clear that no further extension should be granted to Mr. Mishra. 

In November 2021 his tenure was extended by one more year. This was enabled through the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These ordinances were passed in both houses of the parliament resulting in the challenged enactments. Mr. Mishra’s term was extended for a third time in November 2022. 

The petitioners argued that the two extensions granted to Mr. Mishra after Common Cause (2021) were illegal. The Bench held that a legislative enactment can nullify a judgement, but the enactment should be retrospective in nature. They pointed out that the Court in Common Cause (2021) had issued a mandamus barring any further extensions for Mr. Mishra. The extensions granted in November 2021 and November 2022 were in breach of the mandamus issued by the Court. They held that a writ of mandamus cannot be annulled by a legislative enactment.