Introduction

The two tenures granted to the Director of the Enforcement Directorate (ED) beyond the fixed cut-off dates have been declared invalid by the Supreme Court (SC).

• The director was allowed by the Court to continue in office till 31^st July 2023 to initiate a smooth transition.

What is the Background of this Issue?

• The present facts arise from the case of Jaya Thakur v. Union of India & Ors., 2023 which was being heard by a 3-judge bench comprising of Justice BR Gavai, Justice Vikram Nath and Justice Sanjay Karol.
• In November 2021, three days before the Director of ED, Mr. Sanjay Kumar Mishra was about to retire, two ordinances were promulgated, amending the Delhi Special Police Establishment (DPSE) Act, 1946 and the Central Vigilance Commission Act, 2003 (CVC).
• The DPSE Act and the CVC Act were amended to give the government the power to extend tenure of the directors of CBI and ED, after the completion of their statuary tenure of 2 years.
• After these amendments, the tenure of both the CBI and ED Directors could now be extended till the completion of five years from their initial appointment.
• Mr. Sanjay Kumar Mishra was recently given an extension of one year, which is the main contention of this challenge.
• In Common Cause v. Union of India (2021) the SC heard a challenge to the extension of Mr. Mishra’s tenure as ED director for an additional year after his initial two-year tenure expired.
  • The SC held that extensions could be granted in ‘rare and exceptional cases’ for a short period of time.
  • However, they made it clear that no further extension was to be granted to Mr. Mishra.
• The ordinances were challenged for conferring unfettered discretion on the Union over the appointment and tenure of the Directors of CBI and ED, and therefore, allegedly compromising the independence of the investigative bodies.

What are the Legal Provisions?

Ordinances

• The Law that is promulgated by the President of India on the recommendation of the Union Cabinet is known as an Ordinance.
• An ordinance can be promulgated at the time when parliament is not in session.
• The ordinance-making power of the President is provided under Article 123 of the Constitution of India, 1950 (COI).
• Article 123 - Power of President to promulgate Ordinances during recess of Parliament. —

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—

(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President.

Explanation. —Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.

• The Seventh Schedule of the Constitution provides for the subjects on which the Center can make laws under the Union List and the Concurrent List.

Central Bureau of Investigation (CBI)

• The CBI was set up in 1963 by a resolution of the Ministry of Home Affairs.
• The CBI at present is under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions.

Enforcement Directorate (ED)

• Enforcement Directorate is a specialized financial investigation agency under the Department of Revenue, Ministry of Finance.
• On 1st May 1956, an Enforcement Unit was formed, in the Department of Economic Affairs, for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act, 1947.
• The ED Director is appointed under Section 25 of the CVC Act, 2003.
• The Central Government appoints a Director of ED on the recommendation of a selection committee which consists of the CVC Chairperson, Vigilance Commissioners, Secretaries to the Ministry of Home Affairs, the Ministry of Personnel and the Ministry of Finance in the Central Government.

Delhi Special Police Establishment (DPSE) Act, 1946

• An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force.

Central Vigilance Commission Act, 2003 (CVC)

• Established in 1964, CVC is an apex Indian governmental body which addresses the issue of governmental corruption.
• In 2003, the Parliament enacted a law conferring statutory status on the CVC.
• It is an independent body which is only responsible to Parliament.
• It has its own Secretariat, Chief Technical Examiners' Wing (CTE) and a wing of Commissioners for Departmental Inquiries (CDI).

Conclusion

• The SC upheld the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021, which allow the Union to extend the tenure of CBI and ED Directors.
• The Bench held that the extensions granted to Sanjay Kumar Mishra were illegal, and contrary to its 2021 Judgement.