Last week, the Supreme Court accepted the Central Government’s submission in favour of a further extension to the current Director of the Enforcement Directorate (ED). While the order of the Court records the submissions advanced by both sides, ultimately the Court’s reasoning hinges on an unclear and unsubstantiated notion of “the larger national interest”. Interestingly, this is the second extension that the court has granted to the current director’s tenure despite finding the extension of his term to be illegal in a judgment rendered on 11th July.
In acceding to the Government’s request for another extension, the Court has both undermined its own authority and exemplified the problems with the loosening of the form and structure of judicial reasoning.
Many accounts of the Supreme Court’s public interest litigation jurisprudence often refer to the Court’s widespread reach in matters of transparency and anti-corruption. For instance, in Vineet Narain v Union of India, the Court overhauled the functioning of the CBI in an attempt to insulate it from political pressure by issuing guidelines akin to legislation using its “power to do complete justice” under Article 142 of the Constitution. It also employed the technique of “continuing mandamus” to monitor investigations by the CBI.
More recently, in Anoop Baranwal v. Union of India, the Court once again relied on Article 142 and created a Committee consisting of the Prime Minister, Chief Justice, and Leader of Opposition to advise the President on the appointment of election commissioners till Parliament enacts a law on the subject.
However, in the recent proceedings concerning the legality of the repeated extensions granted to the Director of the ED, the Court appears to have substituted its active approach with a passive one.