By- Deborshi Sarkar & Rishab Gupta
In the first part of the article, the authors succinctly discussed the judgment of the Apex Court in Common Cause (A Registered Society)v. Union of India. Further, the authors introduced a discussion on whether the 2021 amendment is a mere declaration aimed at nullifying the effect of the judicial pronouncement in question. In the second part, the authors delve into analyzing the effects of the 2021 amendment with respect to the permissible legislative power of overruling. Further, before concluding the authors also discussed the need for fixity of tenure in probe agencies.
The Central Vigilance Commission (Amendment) Act, 2021 amending Section 25(d) postulates that post the initial two years of appointment, the tenure of the Director of Enforcement can be extended one year at a time until the total tenure from the date of initial appointment does not cross five years. The same is subject to public interest and recommendations of the committee. The amendment basically indicates that the tenure of the director of enforcement subject to certain conditions can be extended to a total period of five years, not with standing the age of superannuation. Drawing inference from the present case, it would be tantamount to the disputed officeholder to remain in office till November 2023, despite the fact that he had attained the age of superannuation in May 2020. This amendment is in direct contradiction of the judgment of the Apex Court in common Cause, where the court had Explicitly held that the director of enforcement cannot be granted an extension post-November 2021.
In order to determine whether an amendment has directly reversed or overruled the decision of a court, the same has to be checked on the anvil of the legal basis or substrata on which the previous decision was made. The test laid down by the Apex Court in Madan Mohan Pathakv. Union of India, AIR 1978 SC 803 postulates whether the amendment has altered the conditions to such an extent that the Court in rendering the previous decision could not have reached such a conclusion. In other words, the previously rendered decision could not have been rendered if the present amended conditions had prevailed. Considering the nature of the amendment it is safe to assert that the same aims at nullifying the decision of the Apex Court in Common Cause by means of a bare declaration without any alteration to its legal basis ie, the age of superannuation.
in Common Cause, the legal basis of preventing any further extension to be granted to the director of enforcement stemmed from the office holder’s attainment of the age of superannuation in the interregnum of the initial two years of appointment. The Court had categorically ruled that any extension post the age of superannuation could only be granted for a short tenure and under exceptional circumstances. Here, a valid exercise of sovereign legislative power would have been an alteration to the barrier of superannuation vides an amendment in the Fundamental Rules. From the authors’ perspective, an inkling solution would be to create an exception/classification in the age of superannuation for ranks equivalent to the additional secretary and above of probe agencies in India. However, the legislature has through a bare declaration in the form of an amendment aimed at merely overruling a judicial decision by circumventing the legal basis of the same. This is evidently clear from the text of the amended section 25(d) which solely gives an extended tenure of five years without bearing any allegiance to the age of superannuation. Thus, it is safe to infer that the discussed amendment has transgressed the constitutional safeguard of the separation of powers and encroached on judicial powers.
FIXITY OF TENURE IN PROBE AGENCY: NEED OF THE HOUR?
The concept of fixity and stability of tenures for furthering the independence or probe and institutional agencies have been in discussion not only during the Constituent Assembly debates but in a plethora of judgments by the Apex Court. Fixity of tenure insulates probe agencies like the Enforcement Directorate (ED) which is of far-reaching importance from extraneous political influences. This is integral in upholding the integrity and independence of the same. The Apex Court in TSR Subramaniam v. Union of India, (2013) 15 SCC 732 analyzing the concept of stability of tenure with respect to civil servants in India held that, “35. ……Fixed minimum tenure would not only enable civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy.” Cognizing on the importance of the office of the director of CBI (probe agency officially designated single point of contact for liaison with the Interpol) to have a fixed tenure, the Apex Court in Vineet Narain v. Union of India (1998) 1 SCC 226 held that, “7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.”
The aspect of fixity as highlighted in the above-mentioned judgments essentially insists on having a minimum tenure of service, in order to prevent such offices from premature transfers based on extraneous political motivations. The same has also been safeguarded in the 2021 amendment. However, the issue at hand is whether varying service tenures of office holders as a result of recurring and willful extensions at the discretion of the Central Government can also be constrained as being against the fixity of tenure. The amendment to Section 25(d) of the Central Vigilance Commission Act essentially allows the Central Government to extend the tenure of the director of enforcement by one year following the mandatory two years of appointment. Furthermore, tenure is subject to a total time period of five years. This will result in varied tenure of appointments for various personnel as the extension given will be completely according to the will of the Central Government. Further, granting extensions in such ad-hoc and episodic fashion would invariably reinforce the control of the Executive over investigative agencies and would be counterproductive to their independent functioning.
The authors completely resonate with the judgment of Common Cause where the Apex Court held that there is no bar under the Central Vigilance Commission Act, 2003 from extending the tenure of the director of enforcement beyond two years. However, following to a minimum period of service that ensures security of tenure, the extension should only be provided in rare and extraordinary circumstances in order to only facilitate investigations that are at a crucial stage. Providing recurring extensions that are permissible at the discretion and the subjective satisfaction of the appointing authority ie the central government would be antithetical to the independence of probe agencies. Further, it may result in creating perverse incentives for officials to serve at the pleasure of the Government by destroying the very fabric of probe agencies. Office of probe agencies like the Enforcement Directorate (ED) director must be the role model of independence and integrity of the agency which can only be ensured by freedom from all kinds of external control and interference.
Considering the amendment as valid and not transgressing on the constitutional safeguards of separation of power, the extensions of tenure granted to the disputed office holder under the same is still unlawful and in direct contempt of the Common Cause judgment. Taking into consideration the Common Cause judgment, the ideal circumstances under which the director of enforcement can hold office for five years is only if he attains the age of superannuation during the last extended year of his total service period. However, in the present case, the director of enforcement had already attained the age of superannuation during the initial two years of appointment and had received a subsequent extension as well. Under these circumstances granting the same person two subsequent year long extensions were in direct contempt with the Common Cause judgment. further, in Common Cause the Apex Court had held that after the attainment of age of superannuation, the extension could only be for a short period. Although the same has not been defined anywhere in the Act, it would be safe to assert that a recurring year-long extension cannot be brought under the ambition of a short period.
Cite as: Deborshi Sarkar & Rishab Gupta , ‘The Central Vigilance Commission (Amendment) Act, 2021: Another Tale of Legislative Overreach?’ (The RMLNLU Law Review Blog13 June 2023)