Supreme Court Upholds Union Power to Control CBI, ED Directors’ Tenure

DESK BRIEF: Two weeks into the monsoon session of the Supreme Court, we saw active Constitution Benches, and few critical judgements.

Week two of the monsoon session of the Supreme Court, witnessed active Constitution Benches, and a few critical judgements. Here’s a breakdown of the highlights of the week. 

Judgement: Union Can Offer Tenure Extensions to CBI, ED Directors 

On July 11, a 3-Judge Bench of the Supreme Court upheld the Union’s power to extend the tenures of Directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED). Two Amendments from 2021 allowed the Union government to offer one-year extensions—with a provision of three such extensions for CBI and ED Directors. Many argue that the state can abuse these amendments to encourage pro-establishment behaviour from the heads of these crucial investigative institutions. As the CBI and ED are often tasked with investigating the Government itself, these concerns weigh heavily. 

It came as a big relief to the government that the Supreme Court held that the Parliament was well within its right to make laws on this topic. The Bench noted that there were sufficient safeguards in the functioning of the CBI and ED to ensure that independence of the institutions will be protected. In March 2023, 14 opposition leaders approached the Supreme Court for protection from arrests by the ED. They submitted that since 2014, a whopping 95% of arrests have been of members of the opposition. Many reports indicate that over the past decade, the ED has evolved to be a tool to quash dissent and opposition to the ruling government. 

Challenge to Article 370 Resurfaces

After laying dormant since 2019, the challenge to the abrogation of Article 370 which confers special status to Jammu and Kashmir, was listed before the Court. The case was assigned to a 3-Judge Bench led by former CJI Rajan Gogoi in 2019, who referred it to a 5-Judge Constitution Bench. Justice N.V. Ramana’s 5-Judge Bench, heard arguments on whether a larger bench was required to decide the case. After eight days of hearings over three months they refused the plea for reference. This was in March 2020. The case saw no further movement till 2023. 

On July 3 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud with Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant. On July 11 2023, this Bench scheduled the case to be heard on August 2nd, 2023.

Constitution Bench Begins Hearings Challenge to Change in Appointment Processes

This week a 5-Judge Constitution Bench led by the Chief Justice started hearing one of the four newly listed hearings The case concerns the question of whether a public employer can change the rules for a public post appointment either during or after the selection process. Candidates appearing for the selection of different posts in the Kerala, Manipur, and other high courts, claimed that the rules in the appointment process such as eligibility criteria, cut off marks, or selection criteria were changed after the exam and selection process had already begun. They complained that they lost the opportunity to qualify for a District Judge, translator, or other positions in these Courts due to these mid-process changes. The Court decided to hear the challenges state-wise, and cleared all tagged cases. Next week, it will answer the core question of whether a public employer may change rules mid-process. 

Two New Judges Join the Supreme Court

Justice Ujjal Bhuyan and Justice S.V. Bhatti were appointed to the Supreme Court on Friday (July 14 2023). Justice Bhuyan hails from his parent High Court of Guwahati whereas Justice Bhatti comes from his parent High Court of Andhra Pradesh. While recommending Justice Bhatti the Collegium found it compelling that there were no judges from the Andhra Pradesh High Court at the Supreme Court. With these two appointments, the number of judges at the top court has increased to 32, out of its sanctioned strength of 34 Judges.