Sir Humphrey Appleby in the BBC series Yes Minister postulated: “Power goes with permanence; Impermanence is impotence; And rotation is castration.”
Sanjay Kumar Mishra, the hitherto all-powerful director of the Enforcement Directorate and his political masters, is now being commanded by the Supreme Court to appreciate the impermanence of power. The Supreme Court’s judgment in Jaya Thakur’s case has essentially reaffirmed its earlier direction that Mishra could not continue at the Enforcement directorate and his tenure could not be incrementally extended by the government.
The Justification to Extend Mishra's Term
In 2021, the Supreme Court in Common Cause’s case had ordered, “Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. We do not intend to interfere with the extension of tenure of the second Respondent (Mishra) in the instant case for the reason that his tenure is coming to an end in November 2021. We make it clear that no further extension shall be granted to the second Respondent.”
To get over the 2021 judgment, the Government amended the Central Vigilance Commission Act, the Delhi Special Police Establishment Act, and the Fundamental Rules, to provide for yearly extensions of the tenures of the CBI director and the Director of the Enforcement Directorate for a period of up to five years.
They claimed that these amendments had taken away the basis of the earlier judgment and now empowered the government to again extend Mishra's term to a total of five years all told.
The amendments and the extension granted to Mishra were challenged in the current round of petitions decided by the Supreme Court. The court's judgment has upheld the government’s power to amend the acts, but it has not approved the action of granting another extension to Sanjay Mishra. The court has essentially ruled that when it had ordered in 2021, that no further extension was to be granted to Mishra, the government had no option but to obey the court’s mandamus. The specific mandamus of the court, could not have been undone by a general amendment of the underlying laws of employment.
What the Court has Been Saying
Dealing with the amendments themselves, the court upheld the Government’s powers to amend the provisions to provide for extended terms beyond the initial period of two years.
The court ruled, “Such Director should have a minimum tenure of two years irrespective of their date of superannuation. By the impugned Amendments, the said period is not tinkered with. What has been done is only the power is given to extend their period for a period of one year at a time, subject to a maximum number of three such extensions. However, this has to be done only when the Committee which is constituted to recommend their appointment finds it necessary, in the public interest, to grant such extension. It is further required to record the reasons in writing for the said purpose…..We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures.”
However, the bite in the court’s judgment comes when it deals with the one-year extension given to Mishra in November 2022. The court snarls, “It is clear that this Court issued a specific mandamus that no further extension shall be granted to the second respondent. Undisputedly, the Union of India as well as the respondent No.2- Sanjay Kumar Mishra in Writ Petition (Civil) No. 456 of 2022 herein were parties to the said proceedings…. This Court has specifically issued a mandamus that no further extension shall be granted to the second respondent. The Union of India and respondent No. 2 were both parties in the proceedings before this Court in Writ Petition (Civil) No. 1374 of 2020 [Common Cause (2021)]. The mandamus issued to the parties was binding on them. We, therefore, find that respondent No.1 could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this Court vide its judgment dated 8th September 2021 in Common Cause (2021)."
Having undone the extension granted to Mishra, the court allowed him to continue till the end of July. It said, "We are inclined to take into consideration the concern expressed by the Union of India with regard to FATF review. We are further inclined to take into consideration that the process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit respondent No.2 to continue to be in office till 31 July 2023. "
On Rule of Law and Balance of Power
The judgment is likely to lay a significant precedent, in cases where a previous judgment of the court, is set at naught by a subsequent act of the legislature. An immediate case on the horizon for the application of the above ratio of the court is the case of the control over services under the Delhi government. A judgment of the Supreme Court in May 2023, was overnight sought to be overcome by the issuance of an ordinance. The challengers of the ordinance before the Supreme Court are quite likely to rely upon this judgment.
The principle of law succinctly put, is that the jurisprudential basis of a previous judgment may be overcome with retrospective effect by legislation. However, a judgment of a court on facts cannot be overcome by legislation as this would turn the legislature into a court of appeal.
The Supreme Court in this particular judgment has walked a fine line of not substituting its wisdom for that of the legislature, while simultaneously ensuring that its judgments on facts are obeyed to the letter, if not in spirit by a recalcitrant government. On the surface, this may seem like a simple legal decision. But beneath lies a powerful message about the rule of law and the delicate balance of power. It's like the Supreme Court, with a flick of its judicial wrist, reminded everyone, "Hey, you're not invincible, and your seat? It's not a lifetime subscription!"
(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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