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NEW DELHI: The Supreme Court on Tuesday rejected a challenge to validity of the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021, allowing extension of heads of the Enforcement Directorate and the CBI upto a cumulative period of five years.

A bench of Justices B R Gavai, Vikram Nath and Sanjay Karol, however, invalidated the extension granted to current ED director Sanjay Kumar Mishra on November 17, 2021 and November 17, 2022 for a period of one year each and declared it as illegal due to a mandamus issued in its previous judgement in the Common Cause case.

Noting that a specific mandamus was then issued against any further extension to Mishra, the bench said, "We, therefore, find that the respondent No.1 (Union of India) could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this court vide its judgement dated 8th September 2021 in Common Cause (2021)."

However, the court allowed Mishra to continue as ED Director till July 31, 2023 in view of concern expressed by the Union government with regard to FATF (Financial Action Task Force) review. 

"We are further inclined to take into consideration that the process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit respondent No.2 (Mishra) to continue to be in office till 31st of July 2023," the bench said.

Justice Gavai, who authored the 103-page judgement on behalf of the bench, said it could be seen from the judgment in Common Cause, this court found that there was no proscription on the government to appoint a Director of Enforcement beyond a period of two years. This court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise.

The court's judgement came on separate petitions filed by Congress leaders Jaya Thakur, and Randeep Singh Surjewala, TMC leaders Saket Gokhale, and Mahua Moitra and advocate M L Sharma, Krishna Chander Singh, and social activist Vineet Narain, and NGO Common Cause challenging the extension of tenure of the ED director. The petitioners also challenged the validity of the amendments into Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021.

The petitioners contended amendments would defeat the directive issued by this court to have a fixed tenure of two years for the Director of CBI and ED and permit a ‘carrot and stick’ policy to be adopted by the Executive. They also contended that if amendments are permitted to exist, it will frustrate the very purpose of insulating the high posts from extraneous pressures.

The bench, however, said, "We are unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures."

The bench also pointed out 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," the bench said. 

The bench further added by the impugned Amendments, the said period (minimum term of two years) is not tinkered with. 

"What has been done is only a power is given to extend their period for a period of one year at a time, subject to a maximum number of three such extensions. However, this has to be done only when the Committee which is constituted to recommend their appointment finds it necessary, in public interest, to grant such extension. It is further required to record the reasons in writing for the said purpose," the bench noted.

The top court said any amendment to the law can be held to be unconstitutional only on the grounds of lack of competence, violation of fundamental rights and arbitrariness.

Finding absence of all the three grounds, the bench said the Committee which recommends appointment of the Director of Enforcement consists of the Central Vigilance Commissioner as well as the Vigilance Commissioner, who are provided with sufficient safeguards under the statute insulating them from any extraneous pressures.

Similarly, the court noted, the appointment of Director of CBI is to be made only after a candidate is recommended by the Committee consisting of the Prime Minister (Chairperson); the Leader of Opposition recognised as such in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in that House (Member) and the Chief Justice of India or Judge of the Supreme Court nominated by him (Member).

Appearing for the Centre, Solicitor General Tushar Mehta had submitted that writ petitioners are members of political parties and some members of these political parties are under investigation by the ED. 

He said that the legislature, which is undoubtedly competent to pass a legislation, has taken away the basis on which the Common Cause (2021) judgment was rendered upon.

Mehta had submitted that India is undergoing FATF review and the review plays an important role, and the evaluation is done by a team including members from different countries across the world. He said since Mishra is at the helm of affairs for the last so many years, it was found necessary that for effective presentation of the efforts made by the country, he should be continued till the process of evaluation is complete.

Senior advocate K V Viswanathan (subsequently elevated as SC judge), acting amicus curiae in the matter, had contended that a provision which permits 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.

Case Title: Dr. Jaya Thakur Vs. Union of India & Ors.