Ponder over SC ruling on ED chief extensions

The Supreme Court’s order striking down the service extensions given by the government to the Director of the Enforcement Directorate (ED) S K Mishra is a setback to the government which has given repeated tenure extensions to the officer. The court has, however, upheld the amendments in law which facilitate the extension of tenures of the chiefs of the ED and the Central Bureau of Investigation (CBI). The government had made the amendments to counter a Supreme Court judgement in 2021 which barred any further extension to Mishra, who was already on an extended tenure. These amendments could be misused to keep favoured officers in the two crucial positions, as it was pointed out in the court. But the court cited the existence of safeguards in the law to prevent its misuse. In practice, however, these safeguards have not been found to be effective. The court also said it could not sit in judgement over the merit of a law which parliament passed in its wisdom. But the power of judicial review exists precisely for that reason.

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The response of the government to the judgement confirms the reality of, and further potential for, the use of its power by the government to control the agency. Union Home Minister Amit Shah said that “those who were rejoicing over the judgement” were delusional because the ED as an institution is not dependent on an individual. He said the powers of the ED remain and whoever is its Director will take note of the “rampant corruption of a cozy club of entitled dynasts”. 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.

Amit Shah’s avowal of the ED’s policy and an assertion that it would continue with its present course is itself 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. 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 the Opposition parties have taken Shah’s statement as a threat and a declaration that the ED will not change its ways.