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Senior Advocate KV Vishwanathan had informed Supreme Court earlier that Mishra's extension was illegal. Other petitioner(s) who are all political leaders had said that the "good boy" (one who toes the government's line) always got the extension.
Appointed Amicus Curiae KV Vishwanathan informed the Supreme Court yesterday in the challenge to extension of tenure of Enforcement Directorate (ED) Director Sanjay Kumar Mishra that “piecemeal” extensions may damage independence and integrity of the investigating agency.
The senior counsel informed a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol that the amendments concerning the extension of tenure fall foul of the rule of law and that such provisions are bound to be misused by governments. He added that governments would prefer that their “favourite” person is given the position. Thus, it was beyond doubt, according to him that the amendment be set aside and that it was in violation of an earlier Supreme Court order.
The amicus further informed the Supreme Court that the law was amended to neutralize the decision of the court in 2021, stating that extension to directors must only be put forth on rare occasions. He noted that expecting any kind of extension results in favoritism.
“Appointment of a director for an initial period of two years and then extending tenure year after year may not result in stagnation and inefficiency of service/administration since other eligible meritorious officers will be left without further avenues in the directorate of enforcement; but also 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 amicus said, and stated that his view was not on the present government but the possibility of the amendment being misused in the future.
At this juncture, the Supreme Court also pointed out that it was not concerned with the affiliations of persons who have filed the petition(s) challenging the tenure of the ED Director. It was last year that the Centre had pointed out to the court that the petitions were “clearly motivated by an oblique personal interest”.
Background:
It may be noted that there are 8 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 in this regard.
The Apex Court in its earlier judgment had noted, "Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases."
The petitions claimed that the Central Government is using the Enforcement Agencies against the Indian National Congress Party's president and their office bearer.
In November 2021, the Centre had brought in ordinances to extend the tenures of the Chiefs of 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 Central Vigilance Commission Act and the Delhi Special Police Establishment Act.
The amendments extend 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.
Case Title: Mahua Moitra vs. Union of India and Ors.
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