Supreme Court asks ED chief to quit; but upholds amendments

Bench holds that back-to-back service extensions given to Mishra in 2021 and 2022 were both invalid and illegal; it however, gave him time till July 31 to quit office for “smooth transition”

July 11, 2023 03:35 pm | Updated July 12, 2023 12:00 am IST - NEW DELHI:

The Supreme Court on July 11 held the back-to-back “piecemeal” extensions granted by the Centre to Enforcement Directorate Director Sanjay Kumar Mishra “illegal and invalid in law”.

The Supreme Court on July 11 held the back-to-back “piecemeal” extensions granted by the Centre to Enforcement Directorate Director Sanjay Kumar Mishra “illegal and invalid in law”. | Photo Credit: PTI

The Supreme Court on Tuesday asked Enforcement Directorate (ED) Director Sanjay Kumar Mishra to quit four months before his third extension ends in November even as it upheld statutory amendments which facilitate the tenures of Directors of the Central Bureau of Investigation and the ED to be stretched “piecemeal”.

CBI and ED chiefs have fixed tenures of two years. However, amendments enacted in 2021 to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act and the Fundamental Rules allow them a maximum three annual extensions.

The tweaks in the law came shortly after the Supreme Court, in a September 2021 judgment, directed the government to stop giving extensions to Mr. Mishra. The amendments allowed the government to overcome the court’s direction and grant Mr. Mishra another two extensions.

A Bench headed by Justice B.R. Gavai on Tuesday held that the back-to-back service extensions given to Mr. Mishra in 2021 and 2022 were illegal. The court, however, gave Mr. Mishra time till July 31 to quit office. The court said the leeway in time was intended to aid with the “smooth transition” of official responsibilities to his successor. Mr. Mishra is in his fifth year as ED Director. 

By upholding the 2021 amendments, the court disagreed with the submissions made by its own amicus curiae, senior advocate K.V. Viswanathan, presently a Supreme Court judge.

The amicus curiae had urged the court to strike down the amendments. Mr. Viswanathan had argued that the Centre could use the prospect of service extensions as a ‘carrot and stick’ policy to ensure that the CBI and ED Directors work according to its wishes. He had contended that a Director “would always succumb to the pressure of the government so as to ensure that he gets further extension.” The petitioners too had submitted that the amendments went against the very principle of insulating the Central investigative agencies from government pressure.

High Level Committees

Justice Gavai, who authored the judgment, however, reasoned that the extensions were not given at the “sweet will” of the government. Instead, the 2021 amendments require High Level Committees to recommend the officers for service extensions.

A five-member panel composed of the Central Vigilance Commissioner and Vigilance Commissioners had to recommend if an ED Director was worthy of an extension in service. In case of the CBI Director, a High-Level Committee of the Prime Minister, Opposition Leader and the Chief Justice of India had to recommend.

When the same committees could be trusted with the initial appointments of the ED and CBI Directors, there was no reason to distrust them about properly advising the government on “whether an extension is required in public interest or not”, the court reasoned.

Besides, the committees were required to record reasons in writing in support of their recommendations, Justice Gavai observed.

The court further said the 2021 amendments were enacted by the Parliament. They could not be declared unconstitutional lightly.

“To do so, the court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Unless there is a flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad,” the court held.

Justice Gavai said the amendments were passed by elected representatives of the people who are “supposed to know and be aware of the needs of the people and what is good and bad for them”.

“The court cannot sit in judgment over their wisdom,” the Bench said.

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