Extension of CBI/ED Director Tenures Challenged
Mahua Moitra v Union of India
The Supreme Court will decide whether the Central Vigilance Commission (Amendment) Ordinance, 2021 and the Delhi Special Police Establishment (Amendment) Ordinance, 2021 are unconstitutional because: it violates the principle of fair investigation and trial and overrules the Court’s previous decisions on the extension of the term of ED and CBI Directors tenure.
Petitioner: Mahua Moitra
Lawyers: Nupur Kumar
Respondent: Union of India
Whether the Executive lacks the power to issue the two Ordinances as they are contrary to the SC decision in Common Cause (2021)?
Whether the grant of Executive power to extend the tenure of the CBI and ED Director’s compromises the principles of fair trial and fair investigation under Articles 14 and 21?
In 2020, the Union government amended an appointment Order which made Sanjay Kumar Mishra the Director of the Enforcement Directorate (ED). The amended Order extended his term by a year. This was challenged by ‘Common Cause’.
In Common Cause v Union of India (2021), a Bench comprising Justices L. Nageswara Rao and B.R. Gavai decided the conditions under which the ED Director’s term may be extended. Section 25 of the Central Vigilance Commission Act, 2003 (CVC Act) provides that the ED Directors’ tenure should be ‘not less than two years’. The Bench interpreted s 25 to permit the Director’s tenure to be extended in ‘rare and exceptional cases’ for a short period of time.
S 4B of the Delhi Special Police Establishment Act, 1946 (DPSE Act) similarly provides that the tenure of the Director of the Central Bureau of Investigation (CBI) should be ‘not less than two years’.
On November 14th 2021, the President promulgated the Delhi Special Police Establishment (Amendment) Ordinance, 2021 and the Central Vigilance Commission (Amendment) Ordinance, 2021. The Ordinances amend the CVC Act and the DPSE Act to permit extensions of tenure for the Directors of the CBI and the ED, for up to five years from their date of appointment. These extensions are to be done one year at a time.
Mahua Moitra, an All India Trinamool Congress MP, filed a petition on November 18th 2021, challenging the Ordinances which were promulgated three days before the incumbent ED director, Sanjay Kumar Mishra’s, term expired. The petition claims that the Central Vigilance Commission (Amendment) Ordinance seeks to nullify the Court’s decision in Common Cause and by legislatively overruling the SC decision regarding Mr. Mishra’s appointment. It is also argued that a decision of the Court in respect of a specific party (as in the case of Common Cause and Sanjay Kumar Mishra) cannot be overruled by legislative exercise.
The petition further argues that the Ordinances allow the Union government to wield excessive power and control over the Directors and their tenure. This violates the principles of fair investigation and fair trial that are guaranteed under Articles 14 and 21 of the Constitution of India.