ED Verdict: Inherent issues still remain unresolved
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The Supreme Court on Tuesdy nullified the Central Government's order extending the tenure of the Enforcement Directorate (ED) chief three times beginning in November 2020. What is more important is that the court upheld the validity of the amendments passed in 2021 that paved the way for the extension of the service period. If the first half asserted on the court's rigorous enforcement of its dictates, the second part is more concerned with the pursuit of justice and the investigative agencies' right to freedom of action which took a blow. The court ruled that it was illegal to extend the tenure of the current ED chief SK Mishra against the court's clear directions, but allowed him to stay in place until July 31 due to the need to continue some crucial investigations. Mishra, originally an Indian Revenue Service officer, was appointed as the ED chief in November 2018 and was supposed to retire in 2020 after completing two years. However, the Centre extended his service for one year. The court ordered, while considering public interest petitions against his term extension, that he should not continue beyond 2021. Days before his tenure was to end, the President in November 2020, modified the previous order retrospectively and changed Mishra’s tenure to three years. After that, it was extended for one year each in 2021 and 2022. He had reached superannuation by that point. The initial appointment was valid regardless of superannuation, but that was only for a period of two years, and the court had clearly ordered that extension of term crossing superannuation could be made only in 'rare and exceptional' cases. The key is that an officer who any observers perceive as having the blessings of the Centre will now have to leave at the end of July as opposed to the expected November date. This ruling along with some of the court's adverse observations, came as a blow to the Central government.
The Centre had amended the rules through an ordinance in November 2021 to extend the tenure of ED and CBI chiefs from two to three years with a maximum of five years through extension. Many had emphasised how unusual it was to adopt the Ordinance just when the winter session of Parliament was about to start. The Supreme Court received three petitions objecting to this. The legality of the Act that was subsequently passed by the Parliament has not been rejected by the Supreme Court. Acknowledging that right, the Supreme Court quashed the proceedings in disregard of the court order. Along with extending the tenure of the CBI Director, the ordinance amended the Central Vigilance Commission Act. Accordingly, the service of the director can be extended for one year each time. According to the original Act governing the appointment, the ED Director is appointed by the Central Government on the recommendation of a committee chaired by the Central Vigilance Commissioner, Vigilance Commissioners, Union Home Minister and secretaries in the Finance (Revenue), Home and Personnel & Training ministries. When it comes to extensions, the same committee shall make the recommendation. According to the composition of the committee, it is clear that it is not difficult to implement the will of the central government whose nominees have a clear majority in the panel. This implies that investigative agencies will be compelled to file investigations and pursue 'targets', or ignore cases, all in accordance with the political wishes of the administration. Even though background checks are still conducted before appointments by committees, the inherent issue is still present. Other systemic corrections are necessary to safeguard the interests of justice.
Representation of the opposition in the recommendation committees will help to a certain extent in appointing impartial and unbiased officials. This principle is applied in the committee that recommends the CBI director to the central government which is chaired by the Prime Minister, with the Leader of the Opposition in the Lok Sabha and the Chief Justice of the Supreme Court as members. In the case of the Director of Central Vigilance, the Prime Minister, who is also the Chairman, along with the Leader of the Opposition and the Union Home Minister, give recommendations to the President. But in the case of ED, the opposition does not have that role either. Even where the opposition has a role, a list of nominees can be submitted by the committee which forms the basis for the final election, implying that the candidates preferred by the executive can eventually be selected. Only a provision that the recommendation should be unanimous will help prevent this to some extent. If not, the executive's choice will prevail Ultimately, the fact remains that only the vigilance of the people and the exercise of the power of franchise in elections can eradicate the evils of the system.
