Tenure Extension to CBI and ED Directors: Judgement SummaryChallenge to Tenure Extension of CBI and ED Directors
The Supreme Court, in a unanimous decision, upheld the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021 which permit up to three one-year extensions to the tenure of Directors of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED). The extension can be granted if it is found to be in ‘public interest’. Prior to the amendment, the tenure of the directors in these investigative agencies was fixed at two years.
The Supreme Court also held that the tenure extensions granted to Mr. Sanjay Kumar Mishra were illegal.
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.
Issues in Focus
- Is the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021 unconstitutional?
- Is the tenure extension of Mr. Sanjay Kumar Mishra contrary to the Judgement in Common Cause v Union of India (2021)?
Independence of the Investigative Institutions Untouched
The Bench held that the Amendments do not hamper the independence of the CBI and ED. The Court was of the view that a statute cannot be declared unconstitutional ‘lightly’. To declare an enactment as unconstitutional, there has to be a ‘flagrant violation of constitutional provisions’.
The petitioners had argued that ‘piecemeal’ tenure extensions would be detrimental to the overall independence of the investigative bodies as it permits a ‘carrot and stick’ policy. This would potentially violate the right to fair investigation and trial. It was speculated that the amendment would compel incumbent directors to work according to the wishes of the Union Government for an extension. The Bench dismissed these arguments by enumerating the process of appointment of directors for both the CBI and the ED.
The Director of the ED is recommended by a committee led by the Central Vigilance Commissioner and other members including secretaries from the Ministry of Home Affairs, Ministry of Personnel and the Department of Revenue. The Central Vigilance Commissioner, who leads this committee, is appointed by a three-member body comprising the Prime Minister, the Minister of Home Affairs and the Leader of the Opposition in the Parliament.
Similarly, the Director of the CBI is recommended by a committee consisting of the Prime Minister, the Leader of the Opposition in the Parliament, and the Chief Justice of India (or a Judge of the Supreme Court nominated by the CJI).
The Bench held that the procedure in both instances has very little government influence. The committees, under the new amendment, are empowered to recommend an extension to the incumbent directors when it is found in the ‘public interest’. Interestingly, the Judgement remarked that the committee which recommended the initial appointment of the incumbent director cannot be prohibited from recommending an extension of the same director. The Bench was convinced by the arguments of the Union that the extensions are not being granted at the ‘sweet-will’ of the Government.
Extension Granted to Mr. Sanjay Kumar Mishra Held Illegal
The Bench held that the extension granted to Mr. Mishra was illegal and directed the Union government to appoint a new director until July 31st, 2023. Mr. Mishra would retain his position as ED Director until then.
In November 2020, the Union government extended the tenure of ED Director Mr. Sanjay Kumar Mishra by one year. This extension was challenged in Common Cause v Union of India (2021), where the Supreme Court upheld this extension. They held that such an extension can be granted only in ‘rare and exceptional cases’. However, they made it clear that no further extension should be granted to Mr. Mishra.
In November 2021 his tenure was extended by one more year. This was enabled through the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These ordinances were passed in both houses of the parliament resulting in the challenged enactments. Mr. Mishra’s term was extended for a third time in November 2022.
The petitioners argued that the two extensions granted to Mr. Mishra after Common Cause (2021) were illegal. The Bench held that a legislative enactment can nullify a judgement, but the enactment should be retrospective in nature. They pointed out that the Court in Common Cause (2021) had issued a mandamus barring any further extensions for Mr. Mishra. The extensions granted in November 2021 and November 2022 were in breach of the mandamus issued by the Court. They held that a writ of mandamus cannot be annulled by a legislative enactment.