CBI/ED Tenure Extension Day #3: Union Argues Extension Devoid of Government InfluenceChallenge to Tenure Extension of CBI and ED Directors
Solicitor General Mr. Tushar Mehta began arguments in the challenge to the extension for Director tenures of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED).
Mr. Sanjay Kumar Mishra, the director of the ED was meant to retire on November 17th, 2021. However, three days before his retirement, on November 14th, 2021, the President of India issued the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These Ordinances permit the extension of the tenures of the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED). They amended the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the Central Vigilance Commission Act, 2003 (CVC Act). The Ordinances allow up to 3 one-year extensions of the CBI and ED director’s tenure.
Previously, in Common Cause v Union of India (2021) the Supreme Court heard a challenge to the extension of Mr. Mishra’s tenure as ED director for an additional year after his initial two-year tenure expired. The SC held that extensions could be granted in ‘rare and exceptional cases’ for a short period of time. However, they made it clear that no further extension was to be granted to Mr. Mishra.
On November 18th, 2021, Mahua Moitra, a Member of Parliament from the All India Trinamool Congress (TMC), and Congress Leader Randeep Singh Surjewala filed petitions at the SC challenging the Ordinances. They argued that the Ordinances overrode and were contrary to the Court’s decision in Common Cause and allowed the Union to further extend Mr. Mishra’s tenure.
On December 14th, 2021, Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021. These Amendments confirmed the provisions for tenure extension that were first passed through the Ordinances.
On July 13th, 2022, Congress leader Jaya Thakur, who was among those who challenged the Ordinances, asked the Court to list the challenges to the Amendments, which the SC agreed to. On August 2nd, 2022, a 3-Judge Bench comprising Chief Justice N.V. Ramana, and Justices Krishna Murari and Hima Kohli issued notice to the Union government to respond to the challenges.
On March 23rd, 2023, a 3-Judge Bench led by Justice B.R. Gavai started hearing the case.
Persons Under Investigation must not approach the Court Challenging the ED
Referring to the fact that some of the petitioners are under investigation for money laundering, the Solicitor General argued that they do not have legitimate grounds to challenge the Amendment. He stated that in Public Interest Litigations, a concern affecting the public at large is critical. In this case, the petitioners are privately motivated, and thus have no locus standi or the standing to approach the Court.
Central Vigilance Commission is Independent beyond Reproach
Next, Mr. Mehta began to argue that the Central Vigilance Commission (CVC), which chairs the committee that appoints CBI and ED directors, are ‘impeccably independent’. He stated that the one year extension is only provided to Directors who perform well. It is up to the CVC to decide whether such extension will be granted.
Justice Gavai raised concerns that the extension would be used to incentivise pro-Union action by the Directors. If the Director cooperated with the Union, they would get the extension, and if they refused, they would be removed immediately. Mr. Mehta responded that the CVC did not play to the whims of the government, and took independent decisions.
Money Laundering a Global Issue, National Laws Needs Flexibility
Mr. Tushar Mehta stated that money laundering has international implications, and is considered to be a grave offence. He referred to the Vienna and Palermo Conventions on Money Laundering, and the establishment of the Financial Action Task Force (FATF) to buttress the point that the issue has been closely monitored. He argued that there must be continuity of leadership in such critical issues.
Next, Mr. Mehta informed the Court that the FATF’s review of India’s compliance with their guidelines was supposed to be conducted in 2019-20. However, it was delayed due to COVID-19, and is expected to be completed in 2023. This was the main reason that the Mr. Sanjay Kumar Mishra’s tenure as ED Director was extended from 2021 to 2022, and then again to 2023. He argued that it was crucial that a person familiar with the functioning of the ED be at the helm for this review. By extending the tenure of the Director as needed, continuity of expertise is maintained.
Justice Gavai asked if there was no one else in the ED who was competent to deal with the FATF review. He raised concerns that there would then be no expert in the ED after Mr. S.K. Mishra retired. The Solicitor General stated that that no one was indispensable, yet, Mr. S.K Mishra’s extension was crucial to maintain continuity.
With the Solicitor General’s arguments remaining, the Court is scheduled to hear the case on May 8th 2023.