Carrot-and-Stick Policy Of Extending ED Director's Tenure By One Year At A Time Threatens Independence : Petitioners Tell Supreme Court

The carrot-and-stick policy of granting piecemeal extensions of only one year at a time to chiefs of investigating agencies threatened the independence of the institutions since the heads would either be perceived to have or would actually be compelled to compromise their duties towards the end of their tenure to secure an extension, Senior Advocate Gopal Sankaranarayanan told the Supreme Court on Thursday. A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol was hearing a batch of petitions challenging the third extension given to the term of Enforcement Directorate chief SK Mishra and also the Central Vigilance Commission (Amendment) Act, 2021. Sankaranarayanan, appearing on behalf of one of the aggrieved petitioners, told the bench, “The problem of the carrot-and-stick policy of dangling extensions over the incumbent, and making the grant of further extensions contingent on their performance, is that the investigations presided on by the director cannot be independent.” He added: “The amendments should be struck down. The extension granted to the incumbent should be struck down and effectively his tenure should be brought to an end. There can also be no questions of equity either, because this is not a case where the court is belatedy considering the plea against an individual who has already continued in his role for several years. The gentleman has had his run, and the guillotine must be brought down now.” Senior Advocate Abhishek Manu Singhvi echoed Sankaranarayanan’s submissions, saying that the amendments circuitously introduced a ‘probation-like situation’ while swearing by the fixity of tenure. “This amendment makes it equivalent to a probationary engagement. That's the crux. The director must perform as per the government’s will, and only then will he be granted an extension. The problem with such piecemeal extensions is that it erodes the institution's independence, which as a concept is neutral to posts,” the senior counsel argued.Extension of tenure illegal, amicus curiae tells Court “Men and women may come and go, but the institution should go on forever,” said the amicus curiae and senior advocate KV Viswanathan while speaking about the importance of ensuring the independence of institutions like the Directorate of Enforcement. He took the court through a catena of judgements in an effort to convince the bench that not only the extensions but also the 2021 amendment to the Central Vigilance Commission Act, 2003 enabling the central government to extend the ED chief’s tenure by one year at a time, up to a total of five years, was illegal. Reiterating the submissions he made in February, the senior counsel told the bench that the extension order and the statutory amendments were illegal “in light of the rulings in a long line of judgments from Vineet Narain, Prakash Singh I, Prakash Singh II, Common Cause I, and Common Cause II”. He further said: “It is not about any particular political party or the government of the day, but the underlying legal position relating to the fixity of tenure and grant of extensions. When analysed in a strictly legal context, we arrive at the irresistible conclusion that the amendments and the extension fall foul of the law. In multiple judgements, the court has affirmed the principles of institutional independence and insulating these agencies from the executive in the larger interests of democracy. These agencies do important work and need not just independence but the perception of independence.” Besides arguing that the amendments gave rise to a reasonable apprehension that officers in service would play to the tune of the government, which advocate Prashant Bhushan claimed would lead to the very purpose of the institutions being defeated and the rule of law being violated, the amicus also submitted that the ground of ‘public interest’ on which such extensions may be granted was also alarmingly vague. “There are no other conditions, and I can foresee that this might lead to grave misuse a few years down the line.” Importantly, he also addressed a preliminary issue on maintainability raised by the Solicitor-General for India, Tushar Mehta on the ground of the lack of locus standi. The petitioners, the top law officer had insisted, were members of political parties whose senior members were facing money laundering charges and as such, were not working in the public interest. Viswanathan asserted, “There may be other motives, but insofar as maintainability is concerned, this court has consistently refused to throw out cases where the public interest is involved.” On the last day of the hearing, in response to Viswanathan’s plea to exclude the aspect relating to the political affiliations or the politics surrounding the petitioners, the bench had also plainly stated, “We are not concerned with who belongs to Bharatiya Janata Party and who belongs to Congress.”Notably, many ...

Carrot-and-Stick Policy Of Extending ED Director's Tenure By One Year At A Time Threatens Independence : Petitioners Tell Supreme Court

Awstika Das

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