The Supreme Court order declaring invalid the extensions of service granted for a third term to the head of the Enforcement Directorate by the Union government indicates the arbitrariness with which governments favour bureaucrats who do their bidding. It also exposes the ways and means taken by the said parties to circumvent even judicial pronouncements.
Finally, it points to the need for an open and transparent process in the appointment of key personnel in Central investigation agencies given their partisan approach to professional responsibilities that has been witnessed for the longest.
Incumbent Sanjay Kumar Mishra was first appointed ED director for two years in 2018. In 2020, this was amended and made three years. Subsequently, Mr Mishra was given extensions in service in 2021 and again in 2022 despite a Supreme Court order just issued against the granting of these extensions. The Supreme Court had in 2021 itself pointed out the inappropriateness of granting extensions to top officials when the extension of their first term had been challenged before it. The government, however, went ahead and got parliamentary sanction in the form of a law to back up its decisions.
The apex court, which upheld the law citing the judiciary’s limitations in judging parliamentary wisdom, however, did not allow the incumbent to complete his term as per the rules of the third extension as it was made in violation of its earlier order. It allowed him to continue in office till the end of this month purely for administrative reasons.
It must be noted that the court found nothing wrong in the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021, which granted the government permission to extend the services of the heads of the ED and the Central Bureau of Investigation (CBI) for up to five years. In fact, the decision went against the opinion of its own amicus curiae who wanted extensions to be overruled as such, as the governments may use them as carrot and stick in their dealings with the officials. The court appears to have gone by the rulebook and the principle of separation of powers and chosen not to factor in the current controversy around the two agencies.
It may be recalled that the appointment of the director of the CBI was the prerogative of the Union government until there was a hue and cry against the misuse of the agency by the party in power at the Centre. The Supreme Court then stepped in and mandated that a panel consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India name the official.
Given the way the Union government has been making use of the Prevention of Money Laundering Act, 2002, whose conditions make it nearly impossible for a judge to grant bail to an accused, and given that the ED is the agency tasked with the implementation of the law and the prosecution of its so-called violators, there must be a better and transparent process for the selection of its members as well. The government must take the right lesson from the SC order and, if found unwilling, the judiciary must initiate the process. Misuse of the law and its enforcement will seriously harm democratic governance; transparency being the only way forward.
