June 08, 2023

ED: Integrity & Independence At Stake If Extensions Given To Incumbent Chief

By Sunil Garodia
First publised on 2023-03-24 07:45:50

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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The Supreme Court is looking into the process through which the government grants extensions to the chief of the Enforcement Directorate. In a decision in 2021, the court had directed the Centre that the existing laws mandated that extensions to ED chiefs be given on rare occasions and had specifically asked it not to extend the tenure of the then ED chief Sanjay Mishra. But the government, in order to neutralize the SC ruling, brought in the CVC (Amendment) Act, 2021, the DSPE (Amendment) Act, 2021 and the Fundamental (Amendement) Rules, 2021 and armed itself with powers to grant extension.

The Supreme Court had appointed senior advocate K V Vishwanathan as amicus curiae to assist it in this regard. Vishwanathan was assisted by advocate Ravi Raghunath. Now the amicus curiae has told the Supreme Court that going by several past Supreme Court judgments regarding the independence of investigating agencies and the fact that the amendments were violative of Article 14 as they were discriminatory and/or arbitrary, in his opinion the said amendments were illegal  and would compromise the independence and integrity of ED.

There is no doubt that the amendments were brought in only to neutralize the SC order. The very fact that post the amendments, the government can give five extensions of one year each to the incumbent means that the government can keep its favourite officer as ED chief for 7 years (initial appointment for 2 years which can be extended piecemeal for another five years). This would have serious implications for the independence and integrity of the agency. The excuse that the incumbent needs to be granted an extension so that running investigations under him can be closed is specious - there are other capable officers who can successfully close them if elevated to the post. The government must realize that such extended terms are double-edged swords and will be used by other political parties to keep their favourite officers in place when they come to power. The best way would be to increase the initial term to three years with no further extension and decide on the appointment of the next chief well in advance so that the transfer is smooth and the post does not remain vacant even for a day.