SC holds Centre’s order of extensions to ED chief Sanjay Kumar Mishra as illegal but upholds amendment to CVC act

PTI, Jul 11, 2023, 8:56 PM IST

New Delhi: The Supreme Court on Tuesday held as ”illegal” two successive extensions of one year each granted to Enforcement Directorate chief Sanjay Kumar Mishra, holding that the Centre’s orders were in ”breach” of its mandamus in its 2021 verdict that the IRS officer should not be given further term.

The order of the top court in which it also curtailed Mishra’s extended tenure to July 31 came as a setback to the Centre even as it upheld the amendments under which a maximum of five-year tenure can be given to directors of the ED and the Central Bureau of Investigation(CBI). The amendments were made to the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021 as well as to the Fundamental (Amendment) Rules, 2021.

At the same time, a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said in view of the peer review being conducted by the Financial Action Task Force (FATF) this year, and to enable smooth transition, Mishra’s tenure will be till July 31. FATF is a global body that leads action to tackle money laundering, terrorist and proliferation financing.

”The impugned orders dated November 17, 2021 and November 17, 2022 granting extensions to the tenure of the respondent No.2- Sanjay Kumar Mishra for a period of one year each are held to be illegal,” the bench said in its 103-page verdict, while partially allowing the writ petitions challenging the extension given to the officer. It said the orders are not ”valid in law”.

The 1984-batch Indian Revenue Service(IRS) officer was otherwise to remain in office till November 18, 2023, according to the notification issued by the government.

The bench gave the verdict on a batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Jaya Thakur, and TMC leaders Mahua Moitra and Saket Gokhale challenging the extensions granted to Mishra.

Mishra, 62, was first appointed the ED director for two years on November 19, 2018. Later, by an order dated November 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years.

The government also promulgated an ordinance last year under which the tenure of the ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

The Congress said the court verdict is a vindication of its stand and a slap on the government’s face.

The opposition party also demanded that an independent investigation be instituted to scrutinise all actions taken by the ED after November 17, 2021.

”This(verdict) is a victory of justice and vindication of our stand on brazen misuse and compromise of ED for political vendetta as also the blatant pursuit of Modi government’s desperate and obvious agenda,” Surjewala, who is also an AICC general secretary, said on Twitter.

The Aam Aadmi Party(AAP) hit out at the Centre and demanded a probe into the ”deeds” done during the tenure of Mishra as ED chief.

Union Home Minister Amit Shah, however, said those rejoicing over the verdict are delusional for various reasons: the amendments to the CVC Act, which were duly passed by Parliament, have been upheld.

He said the powers of the ED to strike at those who are corrupt and on the wrong side of the law remain the same as the central agency 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.

”Thus, who the ED director is – that is not important because whoever assumes this role will take note of the rampant corruption of a cosy club of entitled dynasts who have an anti-development mindset,” Shah said on Twitter.

In its verdict, the bench said though the court has held that orders dated November 17, 2021 and November 17, 2022 granting extensions to Mishra are not valid in law, it is inclined to take into consideration the concern expressed by the Union of India with regard to FATF review.

The bench referred to the September 8, 2021 verdict of the top court by which the Centre’s power to extend Mishra’s tenure as the ED Director was upheld but pointed out that the court had clarified that extension of service of officers after the age of superannuation should be done only in rare and exceptional cases.

It said the apex court has specifically issued a mandamus that no further extension shall be granted to Mishra in its 2021 verdict.

The bench again made it clear that in the 2021 verdict, this court had not struck down any law, but issued a mandamus (judicial writ issued as a command) which was binding on the parties before it.

”The Union of India and the respondent No.2 (Mishra) were both parties in the proceedings before this Court in the [Common Cause (2021 verdict)]. The mandamus issued to be parties was binding on them. We, therefore, find that the respondent No.1 (Union of India) could not have issued orders dated November 17, 2021 and November 17, 2022 in breach of the mandamus issued by this Court vide its judgment dated September 8, 2021 in Common Cause (2021).”