‘Extensions to ED chief may undermine agency’s integrity’
“Expectation of an extension of tenure will result in favouritism. Nobody should be seen or perceived to be seen that he will compromise towards the end of his tenure to get an extension,” Viswanathan said.
Piecemeal extensions by the Centre to heads of Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) will damage the independence and integrity of the investigating agencies and cause frustration among other eligible officers in the cadre, said a note by the amicus curiae assisting the Supreme Court in deciding petitions against the repeated extensions granted to ED director Sanjay Kumar Mishra.
Appearing before a three-judge bench comprising justices BR Gavai, Vikram Nath and Sanjay Karol on Thursday, amicus curiae and senior advocate KV Viswanathan said that the issue is not about action by a particular government or concerning a particular officer, but a larger issue about insulating investigating agencies from outside influence to enable them perform their task independently.
“Expectation of an extension of tenure will result in favouritism. Nobody should be seen or perceived to be seen that he will compromise towards the end of his tenure to get an extension,” Viswanathan said, adding, “This case is not about a particular officer and neither about any government. A government which is in power may be in opposition tomorrow. But no government should be allowed to misuse this provision.”
Mishra, an Indian Revenue Service officer of 1984 batch was initially appointed as ED director for a two-year tenure ending November 2020. Before his tenure came to an end, he was granted a one-year extension that was challenged in the Supreme Court by an NGO, Common Cause. By a judgment in September 2021, the court allowed the extension noticing that the teenure was coming to an end in about two months. However, the judgment was clear that no further extension was to be granted to Mishra.
On November 15, 2021 Centre brought amendments to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act governing the appointment of heads of ED and CBI. This allowed the government to extend tenure of CBI, ED chiefs for a period of three years beyond their two-year tenure by granting extensions of one-year each. These amendments were challenged in a clutch of petitions before the Supreme Court, filed by Congress leaders Randeep Singh Surjewala, Jaya Thakur, and Trinamool Congress MP Mahua Moitra, among others.
Under the challenged amendment, Mishra got an extension from November 2021 to November 2022. Last November, his tenure was further extended by a notification till November 2023.
Viswanathan said that the notifications and the amendments to the CVC Act are liable to be struck down since “piecemeal extension of tenure of one year each subject to a maximum cumulative tenure of five years undermines the independence and integrity of the office. It may result in stagnation and inefficiency of service/administration and cause frustration amongst other eligible officers in the cadre”.
He said that meritorious officers will be left without further avenues in the ED and this can “shake the very foundation of independence attached to the office of the Director of Enforcement, apart from defeating the very object of insulating the office from all kinds of influences and pressures and eliminating ad-hocism”.
The bench observed, “The question before us is whether the two subsequent extensions are permissible in law or not.” Viswanathan who was assisted by advocate Ravi Raghunath said, “The legal position must be made clear by the court. These notifications are invalid not for the facts they allege but purely as a matter of law. The sooner this extension issue is sorted out, the better it will be for democracy.”
As the Centre’s submissions on the issue are yet to be addressed, the Court posted the matter for hearing next on April 20.