Undermining autonomy : On judicial endorsement of a tenure extension system
Allowing piecemeal extensions to ED, CBI heads is a setback to their independence
The Supreme Court’s verdict upholding statutory amendments made in 2021 to allow multiple extensions of service to heads of investigative agencies is a setback to the cause of protecting their institutional independence. While the part of the judgment quashing the two one-year extensions given to the Director of Enforcement, S.K. Mishra, may be welcomed, the rest of it is a free pass to the government to undermine the autonomy of these agencies. The Court has asked Mr. Mishra to step down on July 31. In 2021, it had directed the government not to grant any extension to him beyond November that year. It has now ruled that even though Parliament can remove the basis for any judgment through legislation, it cannot nullify a court direction. Mr. Mishra was appointed for a two-year term in 2018, but in 2020, the original appointment was retrospectively amended to make it a three-year tenure. He was given two annual extensions in 2021 and 2022, despite crossing the age of superannuation. The government ignored the Court’s earlier observation that such extension should be given to those who have attained superannuation only in “rare and exceptional cases”. However, the larger import of the latest judgment is that it endorses the changes enabling annual extensions to the CBI and ED Directors until they complete five years in that office.
The heads of the CBI and ED have an assured term of two years regardless of superannuation, and the introduction of a power to extend it to five years means an officer may get up to three annual extensions. As the petitioners who challenged the extension given to Mr. Mishra, as well as the Court-appointed amicus curiae, argued, piecemeal extensions undermine the independence of the office, and encourage a carrot-and-stick policy to make Directors toe the government’s line. The Court has rejected, without much justification, their contention that the 2021 changes to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act and the Fundamental Rules go against the spirit of earlier judgments that mandated fixed tenures to the CBI and ED heads only to insulate them from extraneous pressures. The finding that the amendments do not violate any fundamental rights is quite surprising, as allowing the government to have Directors who can pick and choose what cases to investigate based on political instructions certainly offends the rights of citizens to equal treatment and impartial investigation. At a time when there is a cloud of suspicion over the misuse of government agencies against political opponents, the Court’s endorsement of a tenure extension system designed to undermine their independence is not conducive to the rule of law.