ED Chief Tenure Hearing Today: Why Amicus Curiae Has Called Extension Illegal

The "friend of the court" cited previous top court judgments to explain why the extension was illegal. What else?

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When the Union Government extended ED Chief Sanjay Mishra’s  tenure for the first time in 2020, a bench of Justices LN Rao and BR Gavai refused to intervene. They, however, cautioned that no more extensions were to be allowed to Mishra.

Despite that, two more extensions followed and the case is now back to the top court. On Tuesday, 21 March, the court is slated to continue hearing pleas challenging the amended law that allowed the extension of up to five years for the director of the Enforcement Directorate (ED).

The hearing began on 12 December last year, after Congress Leader Jaya Thakur filed a petition stating that despite an order by the apex court, the centre had granted him a third extension.

But What Has Happened So Far?

In a significant development on 27 February, the amicus curiae (the lawyer assisting the court in deciding the case) called the extension ‘illegal.’

“The extensions are illegal and contrary to the line of judgments. It is not about the incumbent at all but the principle behind such extensions,” Senior Advocate KV Vishwanathan pointed out last week to a bench of Justices Justices BR Gavai and Aravind Kumar, according to LiveLaw.

The "friend of the court" cited previous top court judgments to explain why the extension was illegal. What else?

But, why did he deem this illegal? What previous judgments is he talking about? What else happened in court? And what’s next?


The ED Chief’s Saga Of Appointment & Extensions: An Overview

- Appointed  On 19 November 2018 for a term of two years till November 2020

-  First Extension granted through a President order on 13 November 2020 for another year till November 2021

- Second Extension: from 17 November 2021 to 18 November 2022 

- Third Extension: 18 November 2022 to 18 November 2023

While the first extension was granted through a president’s order which retrospectively altered Mishra’s two-year term to three years, the second and third tenures were granted through ordinances which later took the form of amendments.


And The Controversy?

Critics of the ruling party allege that since the Modi government first assumed power in 2014, central investigating agencies like the Enforcement Directorate and the Central Bureau of Investigation (CBI) have been used to target opposition leaders and silence dissenting voices.

“Modi Govt uses ED-CBI as henchmen to usurp power and destabilise elected governments. Raids by ED, CBI on the opposition leaders has become a norm. Now, these henchmen are being empowered and rewarded with 5 years tenure, so that malicious prosecution is used to silence dissenting voices
Congress leader Rajdeep Surjewala after the Centre introduced tenure extending ordinances

An Indian Express investigation in 2022, revealed a four fold jump in ED cases against politicians since 2014, out of which 95% hailed from the opposition.

Surjewala, in fact, became one of the petitioners who took the matter of Mishra’s repeated extensions to court. 

Besides him, advocate Manohar Lal Sharma, Congress leader Jaya Thakur, TMC leaders  Mahua Moitra and Saket Gokhale, in separate petitions challenged the Centre’s decision to grant a fresh extension to Mishra.

"The impugned ordinances allow the Central Government to effectively control an incumbent ED Director or CBI Director by wielding the power to extend the tenures of these Directors in the public interest," Moitra’s plea said.

The Supreme Court is presently hearing these pleas. (Jaya Thakur v. Union of India & Ors.)


Why the Amicus Curiae Called Extensions Illegal

Speaking to the court in February, Vishwanathan, who is the amicus curiae in the case, had said “My submission is that keeping in line with the long line of judgments from Vineet Narayan and the Common Cause cases... the extensions are illegal and contrary to the line of judgments.”

Vineet Narain Case: The top court, in its landmark 1997 verdict of Vineet Narain & Others vs Union Of India & Another (popularly known as Jain Hawala verdict), laid down guidelines related to the structure of central investigating agencies. The reason for this, as stated by the court in its order, was:

“A general impression appears to have gained ground that the concerned central investigating agencies are subject to extraneous pressures.”

In the present matter, the Amicus Curiae held on to a similar line of argument while calling the extension illegal.

“Your Lordships will have to take a view on this on the broader principle of insulating from the influence of the executive,” he had said.

Common Cause Case (Common Cause Vs Union of India & Ors): The Supreme Court in September 2021 had ruled that Mishra's tenure should not be extended beyond November 2021 and if at all an ED officer's tenure need to be extended, it should only be done in the rarest of rare cases.

This judgment had come after an NGO called Common Cause took Mishra’s first extension to court. A bench of Justices LN Rao and BR Gavai heard out the case, refused to interfere with the existing extension granted to Mishra, but held:

1) The Union of India did have the power to extend the tenure of the ED Director beyond two years but only in "rare and exceptional circumstances.”

2) No further extension was to be granted to Sanjay Mishra whose term was then slated to end on 16 November 2021

“We make it clear that no further extension shall be granted to the second Respondent,” the order read.


Despite This, How Did The Govt Grant An Extension?

Days after the top court’s judgment restricting further extensions to Sanjay Mishra came out, the President invoked his powers under Article 123 of the constitution and promulgated two ordinances on 14 November 2021, which elongated the two-year cap on the term of the ED chief to five years.

Note: Article 123 allows the President to promulgate ordinances when the Parliament is not in session.

These ordinances amended the Central Vigilance Commission Act, 2003 (CVC Act,) which provides for the appointment of the ED director. The centre had passed the CVC Act in 2003, after the Court’s landmark judgment in the Vineet Narain case.

The Central Vigilance Commission Amendment Act 2021 said that the tenure of the Director may be extended by up to one year at a time, till the completion of five years from the initial appointment.

The "friend of the court" cited previous top court judgments to explain why the extension was illegal. What else?

This, according to Senior Advocate Sanjoy Ghose, “undermined the judiciary” by “legislatively aborting” a judgment of India’s highest court.

“By these amendments, the power was given for annual extensions to such appointees totally up to a period of five years. In 67 days, a judgment of India’s Highest Court (Common Cause Vs Union of India) stood legislatively aborted, and that too, by the executive,” Ghose, wrote for The Quint.


But, What Has The Government Said?

Solicitor General Tushar Mehta, appearing for the government, told the court last week that the petitions have been filed by members of Congress and Trinamool Congress parties to protect their senior leaders who are facing money laundering cases.

The petition is "admittedly intended to scuttle the legitimate statutory investigation being carried out by the directorate of enforcement against certain politically exposed persons,” he said.

The top court, however, responding to that said, “We are not concerned with that.”

A counter affidavit filed by the government in 2022 alleges that the real motive of the petition is to question the investigation being carried out against INC president and certain office bearers and thus, is a misuse of Article 32 of the Constitution.

In the same  affidavit, the Union government argued that “clear enabling stipulations” for the tenure extension have been included in the two laws – the CVC (Amendment) Act 2021 and the DSPE (Amendment) Act 2021.

“Hence their tenure may need to be extended beyond the initial terms in special circumstances, on the recommendation of the committee prescribed under the respective statute and for reasons to be recorded in writing. There is no embargo that the term of Director CBI or ED cannot be more than two years,” the affidavit reads, according to Bar and Bench.


What Next?

Senior Advocates Abhishek Manu Singhvi and Gopal Sankaranarayan are slated to argue on behalf of the petitioners, when the case is taken up for a detailed hearing on 21 March.

As the matter draws towards conclusion, the court, on its part, is expected to look into why Mishra's tenure was extended twice despite directives that suggested otherwise; and provide answers to whether the ordinances extending the ED Chief's tenure up to five years:

1) go against the top court’s previous judgments, and

2) if they confer “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.

(With inputs from LiveLaw, Bar and Bench)

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