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On ED Chief Extension, Will SC Allow Centre To Get Away With Yet Another Fait Accompli?

A view of the Supreme Court of India. (PTI Photo)

What will the Supreme Court do now? This is the question that should be in the minds of all concerned citizens, including jurists, now that the Union government has taken the ordinance route to signal its intent to extend the tenure of current Enforcement Directorate chief SK Mishra by at least one more year.

In its judgment on September 8, the Supreme Court bench of Justices L Nageswara Rao and BR Gavai, while deciding the issue of constitutionality and legality of the 13 November 2020 order issued by the Union government extending, with retrospective effect, the tenure of Mishra as ED chief from two years to three years – till November 19, 2021, had categorically said: “We make it clear that no further extension shall be granted to the second Respondent (Mishra).”

In choosing not to interfere with the decision of the Union government to extend Mishra’s tenure by another year, the bench had also said that it was doing so even though “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” since “his tenure is coming to an end in November 2021”.

Incidentally, the Supreme Court had cited provisions in a pre-Independence law – the General Clauses Act, 1897 – to rule that even though “there is no provision in the CVC Act for extension or reappointment of Director of Enforcement”, the government could in “rare and exceptional circumstances” extend the tenure.

The government’s assertion that as ED chief Mishra was overseeing “important investigations (that) are at a crucial stage in trans-border crimes” and that the decision to extend his tenure was pursuant to the recommendation made by the high-powered committee constituted under the statute, was thus accepted by the court, not without a caveat though.

This caveat was: no more extension for Mishra.

However, now that President Ram Nath Kovind has signed on the dotted lines to allow the Narendra Modi government to amend the Delhi Special Police Establishment (DSPE) Act and The Central Vigilance Commission (CVC) Act, thereby empowering the government to keep the ED and CBI chiefs in their posts for at least one year after they have completed their two-year terms, there is a possibility that the petitioner in the case – Common Cause – may challenge the ordinance in the Supreme Court.

While the Supreme Court, in its September 8 judgment, had ruled that “a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act”, in the case of Mishra, the same bench had also ruled that his extended term wouldn’t be extended beyond November 19.

It would be interesting to see what, if the ordinance and any extension in service granted to Mishra are challenged, would be the view of the Supreme Court. Will it allow the Centre to have its way by way of a fait accompli as it has been doing in so many cases in the last few years? Or will it finally read down the law to the government?

After all, as the September 8 judgment also clearly underlines that as per Fundamental Rule 56, every Government servant “shall retire on attaining the age of 60 years” and “posts for which there can be an extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule for which extension of service can be given”.

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Since the intent and spirit of the Ordinance issued yesterday runs contrary to the established norms and rules governing government appointments and extension in service, it would now be incumbent upon the Supreme Court to interpret the law, independent of what the Centre tells it.

Maneesh Chhibber is a Contributing Editor with India Ahead News. The views expressed in this opinion piece are those of the author.

READ: Why Did The Modi Govt Not Impeach Allahabad High Court Judge Over Corruption Charge?

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