New Delhi: English newspaper editorials took critical stances on the Supreme Court’s verdict against the extensions given by the government to Enforcement Directorate chief S.K. Mishra.
Some questioned the decision by the three-judge bench to observe that it had little power over amendments to the Central Vigilance Commission Act and Delhi Special Police Establishment Act, to bring which the government promulgated an ordinance last year.
These amendments ensured the tenure of ED and CBI chiefs could be extended by up to three years after the mandated term of two years. The government brought these changes after the Supreme Court had already ordered it to not give the ED chief further extensions.
Union home minister Amit Shah’s tweet pushing this verdict as a sign of victory – and what this could mean – was also a topic in some editorials.
‘Undermining autonomy: On judicial endorsement of a tenure extension system’
The Hindu was one paper which took a critical view of the Supreme Court backing the amendments to the Central Vigilance Commission Act and Delhi Special Police Establishment Act.
It called the verdict “a setback to the cause of protecting their institutional independence.”
While welcoming the quashing of Mishra’s extensions, the paper said that the rest of the verdict is a “free pass to the government to undermine the autonomy of these agencies.”
Now, the editorial says, the heads of the CBI and ED have an assured term of two years regardless of superannuation, and the introduction of a power to extend it to five years means an officer may get up to three annual extensions. As the petitioners who challenged the extension given to Mishra, as well as the court-appointed amicus curiae had argued, the Hindu cited, “piecemeal extensions undermine the independence of the office, and encourage a carrot-and-stick policy to make Directors toe the government’s line.”
The editorial criticises court’s move to reject the petitioners’ contention that the changes to the Acts go against the spirit of earlier judgments that mandated fixed tenures to the CBI and ED heads to insulate them from extraneous pressures. It says that such a rejection also came without much justification.
It noted that contrasted with the criticism of partisan behaviour against these government agencies, the court’s endorsement is not conducive to the rule of law.
“The finding that the amendments do not violate any fundamental rights is quite surprising, as allowing the government to have Directors who can pick and choose what cases to investigate based on political instructions certainly offends the rights of citizens to equal treatment and impartial investigation. At a time when there is a cloud of suspicion over the misuse of government agencies against political opponents, the Court’s endorsement of a tenure extension system designed to undermine their independence is not conducive to the rule of law.”
The Tribune noted that it was in May that the Supreme Court had rapped the government for granting a third extension to Mishra, while wondering what made the officer ‘so indispensable’.
The editorial noted that the Union government had claimed that his continuation was “vital in view of the peer review being conducted by the Financial Action Task Force later this year.” The government chose to retain Mishra at the helm even though the apex court had issued a mandamus that no further extension shall be granted to him, Tribune highlighted.
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The Tribune took a milder view of the ruling than Hindu and said that the ruling is expected to “put an end to arbitrariness and lack of transparency in the grant of extensions to the directors of the ED and the CBI.”
“The SC Bench has made it clear that ‘it is not at the sweet will of the government that the extensions can be granted to the incumbents…’ It can be done only on the basis of the recommendations of the appointment committee concerned. Public interest has to be the all-important factor for the panel while deciding to recommend an officer’s extension.”
It acknowledged that the court’s backing of the central laws is a “saving grace” for the Union government.
“The credibility of these premier probe agencies has repeatedly been dented by the Opposition’s allegations that the Centre is misusing them to settle political scores. The row over the appointment or extension of officers has only made matters worse,” it said.
The editorial said that the onus is now on the Union government to implement the laws and rules in earnest.
‘Ponder over SC ruling on ED chief extensions’
In its editorial, Deccan Herald has upheld has also noted the court’s upholding of the amendments, highlighting that they were made by the Union government “to counter a Supreme Court judgement in 2021 which barred any further extension to Mishra, who was already on an extended tenure.”
The editorial further stressed that these amendments “could be misused to keep favoured officers in the two crucial positions” – a fact which was pointed out in court.
The safeguards the court cited were not effective, DH observed. Also, crucially, it said, what while the court said it could not sit in judgement over the merit of a law which parliament has passed in its wisdom, “the power of judicial review exists precisely for that reason.”
The editorial is one of the rare ones to point out that the response of the government to the judgement reflects “the reality of, and further potential for, the use of its power by the government to control the agency.”
It cited Amit Shah’s response on Twitter, saying that “those who were rejoicing over the judgement” were delusional because the ED as an institution is not dependent on an individual.
“Powers of the ED to strike at those who are corrupt and on the wrong side of the law remain the same. ED is an institution which rises beyond any one individual and is focused on achieving its core objective – i.e. to investigate offences of money laundering and violations of foreign exchange laws,” he added.
“Shah was clearly making a reference to the investigations and cases against many political leaders. By making that declaration Shah has confirmed the criticism against the ED – that the government has been using the agency against its political opponents and critics. The reference to “entitled dynasts” makes it clear who the targets are,” the editorial observed.
It further stressed that Shah’s avowal of the ED’s policy is “odd.”
“The ED is a statutory body with functions that it is expected to carry out without regard to the wishes of those in government. A member of the government has no reason or authority to speak on its behalf. The Home Minister, especially, has no reason to do so because the ED is attached to the Finance Ministry, not the Home Ministry.”
The editorial noted that Shah’s statement will “therefore be taken as a reminder of the reality that the power of the ED actually rests with the government, and not with the Director of the agency.”
That is why, it says, opposition parties have taken Shah’s statement as a threat and a “declaration that the ED will not change its ways.”
‘State’s strong arm’
The Indian Express noted in its editorial that 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 editorial meditated upon the apex court’s careful move to separate procedural and political strands in the challenge to Mishra’s appointment and read the law back to the former.
In doing so, the court has cited self-imposed limits in the judicial review of legislative or executive actions, it said.
“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,” the editorial observed, then describing in detail how in Mishra’s case, the government had extended his tenure multiple times, despite a court direction against it.
This editorial also pointed out Amit Shah’s response and said it “brought into sharp relief the questionable politics that has shadowed Mishra’s tenure.”
“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,” it said.