27 Feb 2023 9:59 AM GMT
In a significant development in the petitions challenging the third extension given to ED Director SK Mishra, the amicus curiae in the matter, Senior Advocate KV Viswanathan, told the Supreme Court that the extensions are illegal.Not only the extensions, but also the 2021 amendment to the Central Vigilance Commission Act 2003 -which enables Centre to extend the tenure of the Director of...
In a significant development in the petitions challenging the third extension given to ED Director SK Mishra, the amicus curiae in the matter, Senior Advocate KV Viswanathan, told the Supreme Court that the extensions are illegal.
Not only the extensions, but also the 2021 amendment to the Central Vigilance Commission Act 2003 -which enables Centre to extend the tenure of the Director of the Enforcement Directorate upto 5 years- is illegal, opined the amicus.
"The extension order and the statutory amendments, keeping in mind the long line of judgments from Vineet Narain, Prakash Singh 1 and Prakash Singh II, Common Cause I and Common Cause 2, are illegal. Not only the extension but also the amendments", Viswanathan told a bench comprising Justices BR Gavai and Aravind Kumar.
The senior counsel further said that extension is illegal not just because of the direction in Common Cause judgment that Mishra should not be given further extension beyond November 2021, but also because of the specific observation made in the judgment that extension should be granted only in exceptional circumstances.
The senior counsel added:
“Your Lordships will have to take a view on this on the broader principle of insulating from the influence of the executive. Madras High Court has also gone into an important aspect of how 'public interest' is vague in terms of extension. It is not about the incumbent at all but about the principle"
The bench was hearing a bunch of petitions challenging the extension of ED Director's tenure and the CVC Amendment Act. In September 2022, a bench led by the then Chief Justice of India UU Lalit had appointed Viswanathan as an amicus in the matter.
Senior Advocate Abhishek Manu Singhvi, appearing for one of the petitioners, also assailed the extension on the ground that 'piecemeal' extensions impinged on the independence of an official who was beholden to the government for such yearly extensions. Fixity of tenure, Singhvi asserted, gave public officials strength and infuse them with independent objectives. “Here, a statute is effectively saying that the tenure will be extended for a period not exceeding one year, but as many as five times. The message is clear that such an extension would not be granted if the official fails to do the executive's bidding. This is antithetical to the court's consistent rulings that was reiterated in Alok Verma,” the senior counsel argued.
Senior Advocate Gopal Sankaranarayanan suggested that on the day when the matter is taken up for an extended hearing, the amicus curiae could open the submissions. Solicitor-General for India, Tushar Mehta however said that the amicus can open submissions only after the preliminary objection made by the ED against the locus standi of the petitioners is decided. The ED has stated in its counter-affidavit 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 top law officer said, “They are now saying, let the amicus argue first. They want the amicus to argue for them. Let the petitioners argue first. I will challenge their locus as well.”
The matter is listed on Tuesday, March 21 at 2 PM.
The central government has been embroiled in a prolonged political controversy over its decision to extend Mishra’s tenure, who was first appointed in November 2018. According to the appointment order, he was set to retire two years later on reaching the age of 60 years. However, in November 2020, the Government retrospectively revised the order, increasing his tenure from two years to three years. The Supreme Court was moved to examine the validity of this retrospective revision and extension of Mishra’s tenure by an additional year in Common Cause v. Union of India. A division bench headed by Justice L. Nageswara Rao held that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time. While affirming the move to extend Mishra’s tenure, the apex court cautioned that no further extension was to be granted to the Chief of the Directorate.
In November 2021, three days before Mishra was about to retire, two ordinances were promulgated by the President of India, amending the Delhi Special Police Establishment Act, 1946 and the Central Vigilance Commission Act, 2003. These ordinances eventually culminated into bills that were approved by the Parliament in December. On the strength of these amendments, the tenure of both the CBI and ED Directors could now be extended by one year at a time till the completion of five years from the initial appointment. In November of last year, Mishra was given another one-year extension, which has been challenged now.
The recent amendment to the Central Vigilance Commission Act has has also been challenged before the apex court in at least eight separate public interest litigations. The petitioners include Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. Apart from being assailed for having violated the injunction issued by the apex court in Common Cause, the ordinances were challenged for conferring "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.
In a counter-affidavit, the Centre told the Supreme Court that the petitions are motivated by oblique political interests since they have been filed by and on behalf of petitioners belonging to political parties whose leaders are currently being investigated on charges of money laundering. The petitions have been filed “to ensure that the Enforcement Directorate does not and cannot discharge its duties fearlessly,” alleges the Central Government. “The petitioner would only be convinced that these agencies are independent if these agencies were to turn a blind eye to the offences committed by the political leaders of their political party,” the affidavit stated.
Jaya Thakur v. Union of India & Ors. | Writ Petition (Civil) No. 1106 of 2022