Jaya Thakur v.

Union of India- Issue regarding Tenure

Extension of CBI and ED Directors.

Citation 2023 INSC 61

Date of Judgment July 11th 2023
Court Supreme Court
Case Type Civil Case
Appellant Mahua Moitra, Saket Gokhale, Randeep
Singh Surjewala, Manohar Lal Sharma, and
Jaya Thakur
Respondent Union of India, Enforcement Directorate,
Sanjay Kumar Mishra, and Central Bureau of
Investigation
Bench Justice B.R. Gavai, Justice Vikram Nath,
Justice Sanjay Karol

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 granted to S.K. Mishra were illegal. The Bench
permitted him to serve a tenure till July 31st, 2023, while the Union finds 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.