DAYS after the President of India promulgated two Ordinances, namely, the Central Vigilance Commission (Amendment) Ordinance, 2021 (CVC Ordinance) and the Delhi Special Police Establishment (Amendment) Ordinance, 2021 to extend the tenures of the Director, Enforcement Directorate (ED) and the Director, Central Bureau of Investigation (CBI), respectively, up to five years from the current two years’ tenure, All India Trinamool Congress’ Member of Parliament Mahua Moitra has knocked the doors of the Supreme Court assailing the constitutional validity of the two Ordinances.
Moitra, in her plea, has challenged the two Ordinances broadly on four grounds: legislative incompetence, circumventing mandamus, independence of investigating agencies, and mala fides.
On September 8, the Supreme Court had held that the tenure of the ED Director could not be extended beyond his date of superannuation except in “rare and exceptional cases” and for a “short period”.
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Moitra, in her plea, contends that the CVC Ordinance seeks to nullify the Court’s order by allowing extension of tenure one year at a time for a total of five years in “public interest”. She argues that a year’s extension at a time cannot be termed as “short” in view of the fact that the total tenure of both CBI and ED was contemplated as two years in their respective laws. Therefore, she has contended that the September 8 order, which permits extension of tenure for a “short period”, cannot be in favour of the Government.
Meanwhile, in view of the CVC Ordinance, the President, on Wednesday, extended the tenure of the incumbent ED Director S.K. Mishra, for yet another year.
The Supreme Court had directed in September that Mishra should not be given any further extension. Heavily relying on the Court’s direction, Moitra argues that the CVC Ordinance seeks to circumvent the mandamus issued by the Court. Her plea states that the Executive cannot nullify a judgment through an executive act like an Ordinance, and to the contrary, is obliged to comply with the order.
“In any event, an inter partes decision rendered by a court or a mandamus issued in respect of a specific party cannot be overruled even through legislative exercise. Hence, CVC Ordinance suffers from legislative incompetence”, the plea reads.
Moitra also takes the independence of investigating agencies as another ground to attack the two Ordinances. She argues that the ordinances attack the independence and impartiality of the CBI and ED and violate the principles of fair investigation and fair trial enshrined in Articles 14 and 21 of the Constitution.
“The phrase “public interest” is unconstitutionally vague and confers unfitted discretion on the Central Government to pick and choose those directors for the purpose of extension of tenure who act in line with the Government preference”, Moitra contends.
Moitra also alleges mala fide on the part of the Executive in bringing the Ordinances. She drew the Court’s attention to its order in the ED matter in which the Court held:
“We do not intend to interfere with the extension of tenure of [ED Director S.K. Mishra] in the instant case for the reason that his tenure is coming to an end in November 2021. We make it clear that no further extension shall be granted to [Mishra]”.
In the teeth of the word and sentiment of the judgment, Moitra argues that the CVC ordinance has been issued merely four days prior to the date of expiry of the tenure of Mishra and attempts to extend his tenure.
“This demonstrates that the promulgation of the ordinance is a mala fide exercise”, she says.
