Tenure Extension to CBI and ED Directors: Judgement PronouncementChallenge to Tenure Extension of CBI and ED Directors
Justice B.R. Gavai read out the Supreme Court’s decision upholding the Amendments to the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021. However, the Bench clarified that though the Amendments were constitutional, the extension of Mr. Sanjay Kumar Mishra was not. The SC directed that he may continue his tenure till July 31 to give the Union time to find an appropriate replacement.
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 up to three one-year extensions of the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).
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 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 asked the Court to list the challenges to the Amendments. On March 23rd, 2023, a 3-Judge Bench led by Justice B.R. Gavai started hearing the case.
- Are the 2021 Amendments the CVC and DSPE Acts unconstitutional?
- Is the tenure extension granted to ED Director Mr. S.K. Mishra valid, despite SC's decision in Common Cause (2021)?
On Validity of the Amendments
Justice Gavai held that the Amendments were valid for four key reasons. First, the legislature was competent to make laws allowing tenure extensions
Second, the Amendments did not violate any fundamental right. The petitioners had argued that repeated tenure extensions violate the right to equality of other eligible persons worthy of the post from being appointed.
Third, the Bench saw no manifest arbitrariness, a violation of Article 14, in the Amendments.
Finally, the Bench noted that there were sufficient safeguards built in to ensure that independence of the institutions will be protected.
On the Tenure Extensions Granted to ED Director Sanjay Kumar Mishra
Mr. S.K. Mishra had received three extensions in total. The first one was upheld in Common Cause (2021). The Bench there had held that Mr. Mishra cannot be given further extensions.
Today, the Bench held that though the legislature is competent to make laws on tenure extensions, it cannot annul the mandamus given by the Court to a particular party. They were referring to the Supreme Court’s decision in Common Cause (2021) which specifically barred granting Mr. S.K. Mishra further extensions to his tenure. Justice Gavai stated that allowing the extension would amount to treating this case as an appeal to Common Cause, which it was not.
The Court today declared the two tenure extensions granted to Mr. Mishra after the Common Cause decision as invalid or illegal. However, as per the Union Government’s request in their affidavit, the Bench allowed them time till July 31st 2023 to appoint a new Director to the ED. Mr. Mishra will continue in his post till then.