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