Congress leader Randeep Surjewala on Thursday moved the Supreme Court challenging the Union government's ordinances extending the tenures of Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) chiefs from two to up to five years.
He has moved the plea against the Central Vigilance Commission (Amendment) Ordinance, 2021, and the Delhi Special Police Establishment (Amendment) Ordinance, 2021, of November 14 along with the Personnel Ministry's November 15 notification amending the fundamental rules which enable the government to extend the tenures of ED, CBI chiefs, as also of the defence, home and foreign secretaries.
The Congress leader has also sought from the court an interim relief, alleging that the ordinances violate court orders issued from time to time to ensure the independence of such institutions and that such institutions be kept away from any extraneous considerations. He said the ordinances reveals the "clear abuse of power" by the authorities.
These ordinances empower the Government of India to provide "piecemeal extensions" of one year each to the tenures of the directors of ED and CBI following the conclusion of the fixed terms provided in their statutes, Congress general secretary and chief spokesperson Surjewala claimed.
"There are no criteria provided, save for a vague reference to 'public interest' and is in fact, based on the subjective satisfaction of the respondents. This has the direct and clear impact of eroding the independence of the investigative bodies in question," he said in the petition.
Surjewala also alleged that the extension of tenure in this "ad-hoc and episodic fashion" reaffirms the control of the Executive over investigative agencies and is "directly antithetical" to their independent functioning.
The CBI and ED directors had a fixed tenure of two years but can now be given an extension each year as long as the cumulative extension is not beyond five years from the initial date of appointment, the Congress leader said.
"It would thus mean that each permissible extension will be at the discretion and the subjective satisfaction of the appointing authority," he said.
Surjewala has alleged that the impugned ordinances and notification have the effect of increasing the dependence of agency chiefs based upon the subjective satisfaction of the appointment authority each year. He also alleged that the security for the establishment is being ensured by the government through these ordinances.
Alleging that they are designed to defeat a judicial pronouncement, the Congress leader said the ordinances and notification reveal a clear abuse of power by the government and also a flagrant contravention of the observations of this court.
Surjewala said in the present case, the government has completely overlooked the directions and principles laid down and reiterated repeatedly by this court regarding the fixity of tenure as well as the extension of tenures, which as per this court are to be limited "only to rare and exceptional cases" and can only be provided for a short period of time. He also said that there is no defensible reason to promulgate the ordinances and notification barely 15 days before Parliament is set to convene.
"This hurried rush, of promulgating the ordinances three days before the retirement of the incumbent Director ED, is only intended to allow the government to extend the term of the said Director ED which comes to an end on November 17, 2021. This amounts to a clear abuse of power," he said.
Noting that the ordinances completely undo the safeguards that ensured fixity of tenure and place the official at the mercy and caprices of the Executive, he said the ordinances are "ill-concealed attempts at consolidating central control over the directors of these investigative agencies".
These investigative agencies were created to serve the public but with these amendments they are being subordinated in a clear and malicious fashion to serve the will of the Executive, he alleged.
Surjewala alleged that they are violative of the Constitutional Guarantee against Arbitrariness in State Action under Article 14.
Trinamool Congress leader and MP Mohua Moitra has also moved a petition challenging the ordinances in the Supreme Court.
The government on Wednesday extended the tenure of ED Director Sanjay Kumar Mishra by a year till November 18, 2022, days after the Centre brought the ordinances. The already extended tenure of Mishra, a 1984-batch Indian Revenue Service (IRS) officer of the Income Tax Department cadre, was to end on Thursday. Mishra, 61, was first appointed the ED director for a period of two years by an order on November 19, 2018. Later, by an order of November 13, 2020, the appointment letter was modified retrospectively by the central government and his term of two years was replaced by three years. This order of 2020 was challenged before the Supreme Court which allowed the government's move.