By Sanjay Raman Sinha
In a strong verdict recently, the Supreme Court declared the service extension given to Enforcement Directorate (ED) chief Sanjay Kumar Mishra as illegal. A three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol held that Mishra’s extension was in violation of the Supreme Court’s 2021 judgment—Dr Jaya Thakur vs Union of India and Ors. The Court verdict is seen as a rap on the government’s knuckles for its intransigence against judicial fiat, while the Opposition has rejoiced over it. The extension given to Mishra was challenged by a batch of petitions.
In 2021, the Court had held that Mishra cannot be given any extension beyond November 2021. It, however, upheld the amendments made by the legislature to the Central Vigilance Commission Act (CVC Act), which granted power to the centre to extend the tenure of the ED director by up to five years. The recent verdict was, in fact, the outcome of a judicial review of the central government’s order to extend the tenure of Mishra.
The Court stated: “We have held though legislature is competent to take away basis of judgment, it cannot annul the Mandamus. In Common Cause judgment, there was a specific mandamus and it was directed that there should be no further extension. Thus, extensions given after verdict was invalid in law.”
Nonetheless, Home Minister Amit Shah tweeted hours after the Court judgment: “Those rejoicing over the Supreme Court decision on the ED case are delusional for various reasons: the amendments to the CVC Act, which were duly passed by the Parliament, have been upheld. Powers of the ED to strike at those who are corrupt and on the wrong side of the law remain the same.”
Mishra was first appointed ED director for a two-year term in November 2018. The term expired in November 2020. In May 2020, he had reached the retirement age of 60. However, on November 13, 2020, the centre modified the 2018 order so that “two years” was changed to “three years”, thereby extending Mishra’s tenure by a year. This was challenged before the Supreme Court by the NGO, Common Cause.
The Supreme Court in the September 2021 verdict ratified the modification, but ruled against granting more extensions to Mishra. It issued a writ to that effect. However, after the 2021 verdict, the centre brought in an ordinance amending the CVC Act, giving itself the power to extend the tenure of the ED director by up to five years, one year at a time. This was later made law by an act of Parliament. And it is this law that is being challenged before the apex court now.
In the present case, the bench considered two issues—validity of the amendments and the legality of the extensions given to Mishra. Regarding the validity, the bench ruled in favour of the centre and regarding the extensions, the bench held that it was in contravention of the 2021 verdict.
The justification given by the Union of India for the extension was that important investigations were at a crucial stage in trans-border crimes. The bench held: “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. Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period.”
The overruling of the mandamus writ by the central government was taken seriously by the Court. Justice Gavai stated: “Although the basis of a judgment can be taken away, the legislature cannot annul the specific mandamus that barred further extension. That would amount to sitting in appeal over judicial act.”
In overturning the government order of tenure extension to Mishra, the Court depended on the verdict of the Constitution bench in the case of the Cauvery Water Disputes Tribunal. The Court said: “The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”
The tenure extension, argued the petitioners, was an inducement for the person in office. It was a sort of “carrot and stick” policy which can be wielded by the government to serve its ends. “Amendments, which enable the Government to provide for extension would enable the Government to apply a ‘carrot and stick’ policy. It is contended that if the Director of CBI as well as the Director of Enforcement acts as per the desire of the Government, they could be provided extensions of their tenure,” said the petitioners who are members of the Opposition parties—the Congress and the TMC.
The bench agreed with the arguments and stated: “This Court in the case of Vineet Narain (supra) found the necessity for the insulation of the investigating agencies like the CBI and the Revenue Department from any extraneous influence to enable them to discharge their duties in the manner required for proper implementation of the rule of law.” On the other hand, the Court upheld the amendments made to the CVC Act and the Delhi Special Police Establishment Act which allow the centre to extend the term of the heads of ED and CBI up to five years.
The Court exercised its judicial review powers in this case. It defined its judicial review powers by stating: “Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”
The “self-imposed limits” of the courts have always been a bone of contention with the executive. Oftentimes, in a move of “judicial overreach”, “self-imposed limits” are stretched. This has never been taken lightly by governments. The judiciary has always tried to set the course straight for the government and this has been strongly contested in the courtroom and outside.
Some time back, the Supreme Court took the government to task on the issue of appointment of chief election commissioners. “Why the tearing hurry to appoint the Election Commissioner,” the bench questioned. Justice KM Joseph reportedly highlighted many instances of Chief Election Commissioners who served for a very short time since 2007. He said that even though the government is aware of the candidates’ dates of birth, it still chooses individuals who won’t serve out the full six-year term.
The separation of powers is not clearly defined in the Constitution and this has led to the growing imbalance. Ever since the judiciary took all powers to appoint judges by negating the National Judicial Appointments Commission, the power asymmetry and tension has existed. The carrot and stick policy, on the other hand, is often cited for many public offices.
In the CVC (Amendment) Act, 2021, Clause (d) of Section 25, a provision has been inserted that the government, if it considers necessary in public interest, can give extension to the defence and home secretaries, directors of the Intelligence Bureau, CBI, ED and secretary of the Research and Analysis Wing. All the key posts, then, are open to inducements.
In Vineet Narain and Others vs Union of India and Prakash Singh and others vs Union of India, the Supreme Court held that the tenure of high-ranking officials such as the directors of ED and CBI and the Director General of Police should be for a fixed period of two years in order to insulate them from extraneous pressures and enable them to work independently and freely. But this advice is hardly followed and extensions have been repeatedly given.
Article 309 of the Constitution provide guidelines for the service condition of government employees and states: “Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. These regulations may govern their appointment, promotion, transfer, and other employment terms.”
Former Law Secretary Suresh Chandra told India Legal: “Unfair service conditions and different retirement ages were not envisaged by the Constitution. But it has been done in specific cases, the carrot and stick policy is implicit in such decisions. The terms of employment in public services are clearly enunciated in the Department of Personnel and Training provisions. These mandate consultation with the UPSC and rules are to be framed as per Article 309 and subject to other provisions of the Constitution. Other provisions are Articles 14 and 16 which hold that terms and conditions of service should be non-discriminatory and shouldn’t be arbitrary. It is part of the fundamental right. In the 60th year of Independence, a policy decision was taken by the government that in no case should extension be given above 60 years. But in a number of cases this is being done. In individual cases, extension has been given which is against Articles 14, 16 and 309 of the Constitution. There is no place for subjectivity in the government.”
The verdict of the Supreme Court has political implications as the Opposition now has got a stick to beat the government with. All along, their narrative was that investigative agencies had become a handmaiden of the centre and were being used to harass Opposition leaders. The apex court’s observation that officers should be protected from “extraneous influence” is well taken by the Opposition.
In fact, in March 2023, 14 political parties led by the Indian National Congress had filed a joint petition against the centre’s “arbitrary use” of central agencies like the ED and the CBI, which they alleged, had arrested and started criminal proceedings against Opposition leaders. The government had upped the ante in courts to take custody in money laundering cases. All this had strengthened the Opposition’s narrative of the misuse of investigative agencies by the centre.
The Court verdict is also a reminder to the government that the inbuilt checks and balances of the Constitution and a watchdog judiciary can well stymie any excess by it.