Extensions to the ED chief may compromise the integrity of the agency

According to a note by the amicus curiae assisting the Supreme Court in deciding petitions against the repeated extensions granted to ED director Sanjay Kumar Mishra, piecemeal extensions by the Centre to heads of Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) will harm the independence and integrity of the investigating agencies and frustrate other eligible officers in the cadre.

Amicus curiae and senior attorney KV Viswanathan testified on Thursday before a three-judge bench made up of justices BR Gavai, Vikram Nath, and Sanjay Karol. He said the issue is not one of a particular government's action or involving a specific officer, but rather a larger one of shielding investigative agencies from outside influence so they can carry out their work independently.

"Favoritism will result if a tenure extension is anticipated. Nobody should be perceived as compromising near the end of their term in order to obtain an extension, Viswanathan said, adding that this case is not about any one officer or government. Even a government that is now in power might change tomorrow. However, no government should be permitted to abuse this clause.

Mishra was originally appointed as the director of ED for a two-year term ending in November 2020. He is an Indian Revenue Service officer from the 1984 batch. Before his term ended, he received a one-year extension, which an Organization, Common Cause, contested in the Supreme Court. The court granted the extension by decision in September 2021 after determining that the teenure would expire in around two months. Yet, it was evident from the verdict that Mishra would not be given any additional extensions.

The Central Vigilance Commission Act and the Delhi Special Police Establishment Act, which govern the appointment of heads of the ED and CBI, were amended by the Centre on November 15, 2021. As a result, the government was able to award extensions of one year each to the CBI and ED leaders, extending their terms beyond their initial two-year tenure for a total of three years. Congress leaders Randeep Singh Surjewala, Jaya Thakur, and Trinamool Congress MP Mahua Moitra, among others, petitioned the Supreme Court to overturn these amendments in a number of cases.

Mishra received a postponement from November 2021 to November 2022 under the contested amendment. His appointment was further extended by a notice in November of last year, till November 2023.

The notices and the CVC Act's changes, according to Viswanathan, are vulnerable to being overturned because "piecemeal term extensions of one year each subject to a maximum cumulative tenure of five years undermine the independence and integrity of the office." The service/administration might stagnate as a consequence, which would frustrate other qualified officials in the cadre.

It can "shake the very foundation of independence attached to the office of the Director of Enforcement, aside from defeating the very object of insulating the office from all kinds of influences and pressures and eliminating ad-hocism," according to him, if meritorious officers are denied further opportunities within the ED.

"The issue before us is whether or whether the two subsequent extensions are allowed in law," the bench said. Advocate Ravi Raghunath supported Viswanathan as he remarked, "The court must be clear about the legal situation. These notices are invalid merely on the basis of the law, not because of the allegations they make. Democracy will benefit more from resolving this extension problem quickly.

The Court scheduled the next hearing date on April 20 since the Centre's comments on the subject have not yet been addressed.