Jaya Thakur v. Union of India- Issue regarding Tenure Extension of CBI and ED Directors. 

FACTS OF THE CASE

On November 14th, 2021, the President of India passed the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These Ordinances permit the extension of the tenures of the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) by amending the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the Central Vigilance Commission Act, 2003 (CVC Act).

Both Acts explicitly state that the directors’ tenures should be for ‘not less than two years. In Common Cause v Union of India (2021) the Supreme Court 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 allow up to 3 one-year extensions of the CBI and ED director’s tenure. On November 18th, 2021, Mahua Moitra, a Member of Parliament from the All India Trinamool Congress (TMC), and Congress Leader Randeep Singh Surjewala filed petitions at the SC challenging the Ordinances. They argued that the Ordinances overrode and were contrary to the Court’s decision in Common Cause and extend Mr. Mishra’s tenure. 

Ms. Moitra claims that the Ordinances give the Union significant control over the tenure of the directors which would interfere with the independence of the CBI and the ED. This would violate the principles of fair investigation and fair trial that are constitutionally guaranteed under the Rights to Equality and Life.

Congress leader Jaya Thakur, who was among those who challenged the Ordinances, asked the Court to list the challenges to the Amendments, which the SC agreed to. On August 2nd, 2022, a 3-Judge Bench comprising Chief Justice N.V. Ramana, and Justices Krishna Murari and Hima Kohli issued notice to the Union government to respond to the challenges.

Issues 

1. Are the amendments contrary to the SC’s decision in common cause v union of India (2021)?
2. Do the Amendments threaten the independence of the investigative bodies namely the CBI and the ED?
3. Can the legislature make a law to extend Mr. Mishra’s tenure, in direct contravention to an SC Order that specifically prohibits any extensions for him?
4. Do the Amendments violate the principles of fair trial and fair investigation guaranteed under the Rights to Equality and Life?

ARGUMENTS 

The petitioners stated that the tenure extension orders as well as the Ordinances of the President were illegal as they contradicted the Mandamus previously issued by the SC. They stated that this compromised the independence and diluted the insulation of autonomous bodies. The Amicus, Mr. K.V. Viswanathan also opined that the extension orders as well as the Ordinances that followed were detrimental to the rule of law judgement.

JUDGEMENT

The Bench upheld the CVC and DSPE Amendments, on the ground that the legislature was competent to introduce these laws, they did not violate any fundamental right, and that it had sufficient safeguards to insulate the CBI and ED from Executive pressures. However, the Supreme Court held that the tenure extensions were granted to S.K. Mishra was illegal. The Bench permitted him to serve a tenure till July 31st, 2023, while the Union found a candidate to fill the Director’s position. 

REFERENCES

• SCO Explains: Challenge to Tenure Extension of CBI and ED Directors(scobserver.in) 

This article is written by Anuruddha Chauhan of Lloyd Law College, intern at Legal Vidhiya.

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