By Extending CBI & ED Chiefs' Terms, Govt Has Undermined Judiciary, Again

In just 67 days, a judgment of India’s Highest Court stood legislatively aborted, and that too by the executive.

Sanjay Kumar Mishra was appointed as the Director of the Enforcement Directorate on19 November 2018.

(Image: Aroop Mishra / The Quint)

On 8 September 2021, the Supreme Court, by a 30-page judgement, dismissed the challenge by NGO Common Cause, to the order of 13 November 2020, extending tenure of Sanjay Kumar Mishra as the Director of the Enforcement Directorate (ED) by a year.

Mishra had been appointed to the post on 19 November 2018. The NGO complained that Mishra, who would have, in normal course, superannuated in May 2020, could not enjoy a three-year term as Section 25 of the Central Vigilance Commission Act, 2003 (CVC Act) stipulated only two years.

The Court decided primarily on two grounds. First, it disagreed with the petitioner that there was a ‘two-year’ limit on the post. The Court traced the birth of the CVC Act to the celebrated Vineet Narain Case (1998) 1 SCC 226.

In the said case, the Court attempted to insulate the ‘independent’ institutions such as the ED and the Central Bureau of Investigation (CBI) from political control and influence.

A Minimum of 'Two-Year Term'

Pending any legislation, the Court laid down several guidelines relating to the appointment and functioning of such sensitive investigation agencies, such as involving the Chief Justice of India and the Leader of Opposition Parties in the selection process. Years later, Parliament responded by giving a statutory shape to the same in the form of the CVC Act. The Court concluded that, in this context, the reference to a minimum ‘two-year term’ was meant to secure a measure of independence for the appointee and could not be twisted to mean that under no circumstance the term could not spill over two years.

The Court’s second reason was that Mishra’s term was ending in a couple of months, in November 2021. The Court, however, clarified that while there was no bar to appoint superannuated persons to such offices, it should be resorted to “only in rare and exceptional cases.” This, too, was only to “facilitate completion of ongoing investigations”. The Court also clarified “that no further extension shall be granted” to Mishra.

It Took Just 67 Days

Barely had the ink dried on this verdict and with days to go for the Winter Session of Parliament, on 14 November 2021, the President of India (who, incidentally, under our Constitution, is not only the Chief Executive but also a constituent of Parliament by virtue of Article 79) invoked his power under Article 123 of the Constitution of India to promulgate two Ordinances, thereby amending the Delhi Special Police Establishment Act and the CVC Act, which provide for the appointment of the Director, CBI and Director, ED, respectively.

By these amendments, the power was given for annual extensions to such appointees totally up to a period of five years. In 67 days, a judgment of India’s Highest Court stood legislatively aborted, and that too, by the executive!

If the undue haste of resorting to the Ordinance Route, with a Parliamentary session looming, had surprised some, all suspense evaporated when, on 16 November 2021, the Government extended the ED Director’s tenure by another year!

From 2004 to 2014, the UPA Government had promulgated 61 Ordinances. The Modi Government has promulgated about 78 Ordinances already!

Challenging the Court Ordinances

The extension was met with the usual degree of indignation on social media and then people went on to the next outrage. This government has indeed learnt a valuable lesson in modern social behavior. No matter how serious the outrage, it barely lasts a few news cycles. All that needs be done is to brazen out the same. It is not that the nation has not been plagued with any less unfortunate events which could cause serious embarrassment to a sensitive regime.

To recall a few - demonetisation deaths, migrant labour crisis, Akhlaq’s lynching, Father Stan’s sipper, Hathras’ daughter’s midnight burning, oxygen crisis, razing down protesting farmers at Lakhimpur Kheri - yet it is the sheer grit and ability of this government to brazen it out that has ensured that it has been able to triumph every time.

A justice system which has, for the most time, remained a passive spectator, has only helped in this process of brazening out. I am thus supremely confident that the Sarkar will brazen this out as well!

However, as the feisty TMC MP Mahua Moitra has moved to Court to legally challenge the Ordinances, it might be worthwhile to briefly note the legal nuances involved.

Courts in India have upheld, in principle, the right of the legislature to take away the basis of a judgement by an amendment of law. This is considered a valid exercise of legislative power i.e., laying down legislative policy which applies to a particular category or class rather than to an individual and certainly not to the case of an individual or party whose rights have been judicially adjudicated. The latter is considered as a judicial function which cannot be encroached upon by the legislature in a system sworn to the Separation of Powers.

Therefore, when a court issues a specific order or a mandamus, it is not permissible to nullify the same through a legislative amendment. An ordinance is a legislative function of the executive, conferred by the Constitution, to meet unforeseen exigencies which may warrant immediate change of law when the Parliament is not in session.

Hence, the prohibition of law trying to undo a court verdict would apply to Ordinances too.

In the Common Cause Case, the Court’s direction prohibiting extension is not based on the presence or absence of any legal provision in the CVC Act. It is based on its understanding that normally superannuated employees should be engaged by sensitive agencies only in the rarest of rare cases and that also for a short time and to complete pending investigations.

This, in turn, is based on the Court’s understanding of what norms should be in place to govern sensitive posts in order to protect the rule of law and guarantee against non-arbitrariness, both of which are imperiled by political interference. Given this scenario, and noting the fact that a specific judicial injunction restrains the Government from granting further extensions to Mishra, I doubt whether the Ordinance strategy can come to the rescue of the Union of India, which is in clear contempt of the Supreme Court’s order.

This is not the first time this government has attempted to undo a judicial verdict through the route of ordinance/legislation. In recent times, this was done in the case of appointment of members of tribunals. It is heartening that the Court, under the leadership of the new Chief Justice, has come down very seriously on the government for this misadventure.

When the Court is perceived to overlook deserving judicial candidates for elevation to avoid the executive’s displeasure, when it silently suffers humiliation by having its names of proposed judges once reiterated by it sat upon for months and, in some instances, returned for a second time, when it transfers judges, highly respected by the local bar, to far off places without any transparency, when it ends up granting a breather to the ruling dispensation by putting politically sensitive cases on the back burner, it should not be surprised at the manner in which the government treats its orders as it has done in this ED extension case - respected for 67 days!

(This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)