Supreme Court Reserves Judgment On Petitions Challenging ED Director's Term Extension & CVC Amendment Act 2021

The Supreme Court on Monday reserved judgment on 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. A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol heard the matter. In the course of the hearing today, Solicitor-General Tushar Mehta appeared to reiterate the centre’s preliminary objection that the public interest litigation (PIL) petitions filed by members of political parties should be dismissed since they were obliquely motivated. Among the petitioners are Congress leaders Jaya Thakur and Randeep Singh Surjewala, Trinamool Congress legislator Mohua Moitra, and TMC spokesperson Saket Gokhale. The law officer had pointed out during the last hearing that the leaders of these parties were under ‘serious investigation’ by the Enforcement Directorate. Mehta began, “The questions you are examining are at the behest of those who are being…” “Please do not repeat that argument,” Justice Gavai interjected. He added that even while delivering the judgement in Common Cause v. Union of India (2021), the court had refused to “go into that question”. In 2021, a bench of Justices L Nageswara Rao and BR Gavai had, while holding that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time and affirming the first extension to Mishra’s tenure, had firmly held that no further extension could be granted to him. “Your Lordships may keep that question open here as well,” Mehta suggested. He tried again, “But, I was making a legal argument…” “Let this not be converted into a political platform,” Justice Gavai emphatically said. This is not the first time that the bench expressed its disinclination to consider the political affiliations of the petitioners when examining the question of law raised by the batch of petitions. Earlier, the amicus curiae had appealed to the bench to exclude the aspect relating to the political affiliations or the politics surrounding the petitioners. In response, the bench plainly stated, “We are not concerned with who belongs to Bharatiya Janata Party and who belongs to Congress.” Today, in response to the Supreme Court’s judge’s remark, the solicitor-general said that it was not the centre that had ‘converted’ the top court into a political platform. “The petitioners have converted it into one,” the Mehta replied, “I will not.” Justice Gavai went on to question the centre’s preliminary objection, saying that the membership of a political party would not necessarily disentitle them from initiating a litigation in public interest. The Solicitor-General, however, clarified that he was not trying to repeat the objection regarding the petitioners’ locus standi, but merely trying to point out that the term of the incumbent director was not extended to the detriment of other qualified officers waiting in line. “When the government has a justification for the extension granted, would this court’s examination nbe different, especially when there are no other officers whose chances would be affected?” the law officer asked. He further explained that the position of the director of the Enforcement Directorate was not a ‘promotional’ post. He said: “The director is selected from a common pool of IAS officers, IPS officers, IRS officers. They are selected. A panel is prepared. It goes before the vigilance commissioners and the committee contemplated under the CVC Act. One person continuing will not take away the chance of the next below. There is no next below the director. The additional director and joint director will not get automatically promoted. They might not even be in the zone of consideration because of [eligibility requirements].” “Therefore,” Mehta added, “This court’s parameter of judicial review would be different in a case where someone next in line approaches this court with the complaint that the continuance of the director would harm their chances, as against a case where petitions have been filed by members of political parties, whose colleagues are under serious investigation.” Besides this, the solicitor-general also reiterated that the direction in the top court’s Common Cause judgement barring the central government from granting any further extension to Mishra’s tenure was not stricto sensu a mandamus. It was only issued in the context of the statutory framework as existed then, the law officer said. In response to the apex court’squestion of whether there was no other person who had the requisite competence to discharge the responsibilities, Mehta said that while the absence of one person would not stop the agency as a whole from functioning, the presence of one person and their leadership could make a big difference, especially in light of the FATF peer review. Prima facie of the opinion that Common Cause ...

Supreme Court Reserves Judgment On Petitions Challenging ED Director's Term Extension & CVC Amendment Act 2021

Awstika Das

The bench also said its 2021 Common Cause decision needed reconsideration, but the Centre did not press that argument.

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