The Supreme Court on Tuesday said it was “clear that it is not at the sweet-will of the Government that the extensions can be granted to the incumbents in the office of the Director of CBI/Director of Enforcement.” “It is only on the basis of the recommendations of the Committees which are constituted to recommend their appointment and that too when it is found in public interest and when the reasons are recorded in writing, such an extension can be granted by the Government,” further opined a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol.
These observations were made by the three-judge bench while holding the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act for extending the tenure of the CBI and ED chiefs for a maximum period of 5 years including a 2-year fixed term that may be extended “in public interest” by a 3-year term are not manifestly arbitrary.
The court further rejected the argument that a 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. The argument that the impugned amendments would also result in stagnation and inefficiency of service/administration and cause frustration amongst other eligible officers in the cadre was also rejected by the SC.
In addition, the bench opined that as the legislature is not competent to take away a mandamus issued by the court, the Centre had no right to not abide by its directions issued in September 2021, in Common Cause (A Registered Society) v. Union of India and others, wherein it had expressly barred any further extension of the then ED director SK Mishra’s tenure.
In this regard, the bench opined that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution.
The court held that a defect pointed out should be cured such that the basis of the judgement pointing out the defect is removed. But the nullification of mandamus by an enactment would be impermissible legislative exercise and transgression of constitutional limitations, and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India, the bench added.
Holding the extension to be invalid, the bench has ordered that Mishra’s tenure would end on July 31.
It may be noted that eight were petitions filed by several petitioners including Congress leader Dr Jaya Thakur, Saket Gokhale, Congress leader Randeep Singh Surjewala, Krishan Chander Singh, Trinamool Congress MP Mahua Moitra, Vineet Narain, and Advocate Manohar Lal Sharma against the said amendments to the CVC Act and DPSE Act.
In November 2021, the Centre brought in ordinances to extend the tenures of the chiefs of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) for up to 5 years.
The government amended the Fundamental Rules, 1922, to bring them in consonance with the Central Vigilance Commission Act and the Delhi Special Police Establishment Act.
Later, on August 2, 2022, the Supreme Court issued notice on a batch of petitions challenging the central government’s order extending the tenure of Enforcement Directorate director Sanjay Kumar Mishra.
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