Opinion Express View on SC order on ED chief: State’s strong arm

The Supreme Court has held the two extensions received by the Enforcement Directorate chief Sanjay Kumar Mishra as invalid and ruled that he must demit office on July 31, nearly four months before his tenure was to end. However, the Court ruled that the government’s decision to amend the Central Vigilance Commission Act, 2003, the Delhi Special Police Establishment Act and Fundamental Rules, which enabled the government to extend the tenure of the ED and CBI chiefs, was constitutional. By all accounts, in its order, the three-judge bench has sought to distinguish the principle that gives Parliament the privilege to amend laws from the manner in which it has exercised that privilege.

The Court has been careful to separate the procedural and political strands in the challenge to Mishra’s appointment and read the law back to the former. Citing self-imposed limits in the judicial review of legislative or executive actions, the Court said, “It has been the consistent view of this Court that legislative enactment can be stuck down only on two grounds. Firstly, that the appropriate legislature does not have the competence to make the law; and secondly, that it takes away or abridges any of the Fundamental Rights… or any other constitutional provisions.” In the case of the amendments under challenge, the Court said while Parliament had the power to make them it did not grant arbitrary power to the government to extend the term of the ED or CBI director. In Mishra’s case, the government had extended his tenure despite a Court direction against it. First appointed as ED chief in 2018 for a two-year term, Mishra received his first extension in 2020. He received two more, with the government amending the law to facilitate a five-year tenure for him with year-long extensions, which was questioned by the Opposition and challenged in the Court. In the second instance, the government extended Mishra’s tenure despite a Court directive. On Tuesday, the judges highlighted this while asking Mishra to step down from office.

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Union Home Minister Amit Shah’s response after the Court order brought into sharp relief the questionable politics that has shadowed Mishra’s tenure. He said “who the ED director is not important because whoever assumes this role will take note of the rampant corruption of a cosy club of entitled dynasts who have an anti-development mindset”. Under Mishra, many Opposition leaders had come under the lens of the ED. The Opposition sought relief from the SC, but the latter declined to entertain its plea that alleged “selected and targeted” use of agencies by the central government. The onus is also on the agency to convince its critics that it is transparent and fair in its functioning.