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Synopsis

In a batch of pleas challenging the extension of the tenure of the Enforcement Directorate Director and the applicability of the Central Vigilance Commission (Amendment) Act, 2021, Solicitor General Tushar Mehta today informed the Supreme Court that sometimes continuity of a person at a post is paramount as its not about an individual, it is about the country.

"It is nobody's case that nobody else is competent. The world never stops, the shows always goes on..They used to say that Indira is India and India is Indira.. it is about the juncture in the time, when that person is indispensable..", SG submitted before a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol.

Referring to the CVC amendment, the 3-judge bench was informed that it did not only relate to the ED but also for CBI. "...sometimes that continuity is necessary, its not a matter of reading the files, some diplomatic relationships are established, and at that level everything is not in writing....", the SG added.

On the carrot and stick theory used by the petitioner in their arguments, Court was told that, "Unlike the carrot and stick theory that the petitioner is using, they are immune to transfers....This is a double edged sword...If I perform well, I am only given a one-year extension. These people are at the fag ends of their careers, would they be lured by carrot and stick.."

At the beginning of the hearing, SG Mehta also expressed his serious objections against instant petitions by members of political parties whose leaders are being investigated by the ED.

"I am objecting against them filing PILs which are not in public interest but private interests", Court was told.

In a similar vein, the Central Government had informed the Supreme Court last year in September that the petitions were clearly motivated by an oblique personal interest.

 

Arguing that eminent leaders of various political parties like the Indian National Congress and Trinamool Congress, whose members have challenged the Amendments Act of 2021, are under investigation of the Directorate, the affidavit states,

"It is apparent that the subject petitions are filed for and on behalf of such leaders of political parties of the petitioners and to ensure that the Enforcement Directorate does not and cannot discharge its duties fearlessly. There is a manifest political interest in filing the above writ petitions, which is apparent. It clearly appears that to achieve such political advantage the petitioners are camouflaged as Public Interest Litigation...".

Filed through Sandeep Gehlot, an authorised officer of the respondent authorities, the affidavit submitted that issue of such extension of service is a purely service matter for which no PIL lies and the writ petition under Article 32 is not maintainable as no breach of any Fundamental Right under Part III is made out.

"Other than some vague references to violation of Article 14. the Petitioner has failed to substantiate how any of her Fundamental Rights have been violated", the affidavit read.

On August 2nd, the Supreme Court had issued notice on a batch of petitions challenging the Central Government's order extending the tenure of Enforcement Directorate Director, Sanjay Kumar Mishra.

A bench of then Chief Justice of India NV Ramana, Justice Krishna Murari, and Justice Hima Kohli had issued notice to the Central Government and listed the matter for hearing after 10 days.

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.

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.