CBI/ED Tenure Extension #1: Dr. Singhvi Argues That Tenure Extensions Hamper Independence of ED

Extension of CBI/ED Director Tenures Challenged

On May 5th 2022, Chief Justice U.U. Lalit and Justice Ravindra Bhat briefly heard a group of petitions challenging the tenure extension of Sanjay Mishra, director of the Enforcement Directorate (ED). The petitions were filed by Trinamool representatives Mahua Moitra and Saket Gokhale, Congress leaders Jaya Thakur and Randeep Surjewala and advocate M.L. Sharma among others. Today, the Bench heard Solicitor General Tushar Mehta, representing the Union, and Senior Advocate Dr. Abhishek Manu Singhvi, representing the petitioners. 

Along with Mr. Mishra’s specific tenure extension, the petitions challenge amendments to the Central Vigilance Commission (CVC) Act, 2003. These Amendments, enacted days before Mr. Mishra was due to retire, enable the government to extend the tenure of the ED and Central Bureau of Investigation’s (CBI) director by one year at a time for a total period of up to five years. 

Dr. Singhvi: ‘Dangling’ One Year Extensions Damages Independence of the ED

Addressing the Court briefly, Dr. Singhvi argued that ‘dangling’ one year extensions before a soon to retire director endangers the independence of important institutions like the CBI and ED. Notably, the ED under director Sanjay Kumar Mishra has arrested several leaders from Opposition parties, including Lok Sabha Member Karti Chidambaram and Karnataka Congress President D.K. Shivkumar, for money laundering offences. 

Dr. Singhvi mentioned two past Judgments in which the Supreme Court discouraged such tenure extensions, except in the ‘rarest of rare’ cases—Vineet Narain (1997) and Alok Verma (2018). 

SG Mehta: Amendments Change the Basis of the Alok Verma Decision

SG Mehta, representing the Union government, stated that the Ordinances and the Amendments allowing the tenure extensions ‘changed the basis’ for the SC’s Vineet Narain and Alok Verma Judgments. He referenced a well-established principle according to which the legislature may undo a Judgment through an amendment if it changes the facts that form the underlying basis of the Judgment. 

SG Mehta further emphasised that the CVC, which appoints the ED director and approves their tenure extension, is an independent body. He stated that CVC members are appointed jointly by the Prime Minister, Chief Justice and Leader of the Opposition. Tenure extensions approved by the CVC, hence, were not a partisan decision. 

M.L. Sharma Demands To Be Made Lead Petitioner

Advocate M.L. Sharma, a serial PIL-ist, demanded the Court’s time as well. Mr. Sharma complained that the registry had shifted his name to the end of the list of petitioners at the Solicitor General’s behest. He asked to be reinstated as the lead petitioner, whose name the Court’s eventual Judgment will bear. 

Justice Bhat clutched his head in his hands at this request. CJI Lalit reminded Mr. Sharma that his priority should be the case he has raised, not his place on the list of petitioners. 

 

SG Mehta is expected to file the Union government’s counter soon. The Court will hear this case next on September 19th, 2022.