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Supreme Court seeks Centre’s view on ED, CBI chief extensions
A bench headed by Chief Justice of India (CJI) NV Ramana issued notice on the petitions challenging the November 15, 2021 ordinance by which amendments were made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act governing the appointment of ED and CBI chiefs.
New Delhi: The Supreme Court on Tuesday sought the Centre’s response on a clutch of petitions challenging the ordinances brought by the government to extend the tenure of the heads of the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) up to five years.
The matter has been kept for hearing after 10 days.
A bench headed by Chief Justice of India (CJI) NV Ramana issued notice on the petitions challenging the November 15, 2021 ordinance by which amendments were made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act governing the appointment of ED and CBI chiefs. The present ordinance amended Section 25 of the CVC Act, which governs the appointment and tenure of ED director.
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The petitions, filed among others by Congress leader Randeep Singh Surjewala and Trinamool Congress (TMC) leaders Mohua Moitra and Saket Gokhale, alleged that the amendments have been brought to provide extension to ED director Sanjay Kumar Mishra, an Indian Revenue Service (IRS) officer of the 1984 batch, who was initially appointed in November 2018 for a fixed two-year tenure.
The Centre granted him a one-year extension till November 2021 which was challenged before the Supreme Court by NGO Common Cause in November 2020. On September 8 last year, the top court, while hearing that case, held that Mishra should not be given any further extension, and refused to interfere with the decision granting him extension since his tenure was getting over in November 2021.
However, Mishra was later given another extension till November 22 under the amended CVC Act on the grounds that the original act had itself been amended through the November 15, 2021 ordinance. The petitions filed between November 2021 and June 2022allege that the ordinance was in violation of the top court’s judgment and should be struck down.
Senior advocate Abhishek Manu Singhvi, appearing for Surjewala, told the court that ED administers not just offences under the Prevention of Money Laundering Act (PMLA) but also the Foreign Exchange Management Act (FEMA). He pointed out that, unlike the appointment of the CBI director, the selection of ED director under Section 25 of the CVC Act is done by a committee headed by chief vigilance commissioner, vigilance commissioners, and bureaucrats. “It is an important question to be gone into as who appoints ED director as all representatives are from executive,” Singhvi said.
The CBI director, meanwhile, is picked by a panel comprising the Prime Minister, the CJI, and the leader of the single largest party in the Opposition in the Lok Sabha.
The Centre, while arguing against Common Cause petition, defended the extension granted to Mishra as his continuation was crucial to certain pending investigations in transborder crimes.
Advocate ML Sharma, who has also filed a petition on the same issue, told the court that the amendments under challenge were passed without any voting in either the Lok Sabha or the Rajya Sabha, and the same cannot be treated as having been passed.
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Senior advocate Gopal Sankarnaraynan, representing TMC MP Mahua Moitra, told the court that Mishra will complete four years in office in November this year, and the petitioners apprehend the government will grant another extension.
One of the pleas filed by Congress Mahila Congress Committee general secretary Jaya Thakur said, “The respondent (Union of India) passed the CVC (Amendment) Act 2021 with a sole purpose to give benefit to respondent 2 (Sanjay Kumar Mishra).” The plea, filed in June this year against the backdrop of ED summons to Congress leaders Sonia Gandhi and Rahul Gandhi, said, “The ministry of finance is using the enforcement agencies against the Indian National Congress (INC) party’s president and their office bearer.”
When the Common Cause petition was argued before SC last year, Solicitor General Tushar Mehta said that the ED Director occupies an important post probing money laundering crimes having cross-border and trans-national ramifications. “Considering the huge ramifications, if the Government feels that in the interest of preserving the pending investigations, the officer must continue, is it necessary that curtains should fall when he crosses the two-year stage?” Mehta had then argued.
The Centre’s affidavit filed in the court last year added that in the first two years as ED Director, Mishra was instrumental in recovering a sum of nearly ₹9,000 crore worth proceeds of crime in the investigation of three cases involving Vijay Mallya, Nirav Modi and Mehul Choksi.
