Central government defends ED Director's tenure extension; says petitioners belong to political parties under ED scanner

The Central government told the Supreme Court on Monday that the petitions challenging the extension of tenure of the current Director of Enforcement Directorate (ED) Sanjay Kumar Mishra, are politically motivated since the petitioners belong to political parties whose leaders are currently under the ED scanner [Dr Jaya Thakur vs Union of India]..In an affidavit filed before the top court, the Centre said that the petitioners Jaya Thakur, Saket Gokhale, Randeep Singh Surjewala and Mahua Moitra belong to either the Congress party or the Trinamool Congress whose top leaders are being probed by the ED. "In most of the cases the competent courts have either taken cognizance of the case or constitutional courts have refuse to grant any relief to them," the affidavit said..The Court is hearing at least 8 petitions filed by Congress and TMC leaders and others challenging the tenure extension of Mishra.Krishna Chander Singh, Vineet Narain and Manoharlal Sharma are the other petitioners.The petitioners have contended that the Central government's decision to extend Mishra's tenure was in violation of top court's September 2021 verdict which ruled against more extensions to Mishra.In that verdict, the Supreme Court had affirmed an earlier judgement of the Central government dated November 13, 2020, which made retrospective revisions to Mishra's appointment order, increasing his term from two to three years.Mishra was first appointed as the ED Director for a two-year term in November 2018. The two-year term expired in November 2020. In May 2020, he had reached the retirement age of 60.However, on November 13, 2020, the Central Government issued an office order stating that the President had modified the 2018 order to the effect that a time of 'two years' was changed to a period of 'three years.' This was challenged at the Supreme Court by the NGO Common Cause.A Bench of Justices L Nageswara Rao and BR Gavai had held in September 2021 that the Central government has powers to make retrospective changes but it should be done only in the rarest of rare cases.The Court had also said that the tenure of Mishra, which was set to expire, cannot be extended further.After the Supreme Court's decision last year, the Central government brought in an ordinance amending the Central Vigilance Commission (CVC) Act, empowering itself to extend the tenure of the ED Director up to five years. This has now been challenged before the top court..The Centre defended the extension submitting that it was done since the specialized work required to be administered by a premier agency is a continuous process and the person leading the organization should have a tenure of 2 to 5 years..The Centre contended that there is a manifest political interest in filing this public interest litigation."To achieve political advantage the traditionals have camouflaged the PILs without even mentioning that the leaders of their parties are currently being investigated by the ED," it was submitted..The affidavit also argued that top court itself had taken note of the increasing inflow of public interest litigation petitions in service matters and had deprecated such a practice..Further, the government underlined that the amendments to the respective statutes i:e Central Vigilance Commission Act, 2003 and the Delhi Special Police Establishment Act, 1946, by way of CVC (Amendment) Ordinance. 2021, and the DSPE (Amendment) Ordinance, 2021 (both of which have become Acts now), did not alter any clause relating to superintendence over these agencies. In fact, clear enabling stipulations have been now incorporated in the two statutes with regard to the tenure..Making a case on this aspect, the Central government said that "it is rational to have an upper limit to the tenure of appointments such as Director of CBI and ED to maintain independence". "Hence their tenure may need to be extended beyond the initial terms in special circumstances, on the recommendation of the committee prescribed under the respective statute and for reasons to be recorded in writing. There is no embargo that the term of Director CBI or ED cannot be more than two years," .To prove the point of independence, the affidavit highlighted the three conditions under Section 25(d) of the CVC Act to extend the tenure of the ED Director:1. Recommendation by the committee constituted under Section 25(a), 2. Extension in public interest and 3. Reasons for such extension must be recorded in writing. Further, it has been stated that the committee is headed by the Chief Vigilance Commissioner who in turn is appointed by the Prime Minister, Leader of Opposition and Home Minister.. "The petitioner would only be convinced that these agencies are independent if these agencies were to turn a blind eye to the offences committed by the political leaders of their political party," the affidavit said. .The Supreme Court had earlier today appointed Senior Advocate KV Viswanathan as Amicus Curiae in the case.The matter will be heard on September 12.

Central government defends ED Director's tenure extension; says petitioners belong to political parties under ED scanner

Debayan Roy

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