There's No Statutory Cap For ED Director's Term, Argues Solicitor General; Supreme Court Reserves Judgment

"A Minimum tenure of 2 years ensure that the incumbent plans and is not subject to any pressure. The legislature never intended to provide a "statutory cap" or a "static tenure". There is a conscious use of the expression, not less than 2 years. In case of any abuse of this power, such incidence of exercise of power will always be subject to judicial review".

To justify his contention that the intention of expression "not less than 2 years" was minimum 2 years, Solicitor General Tushar Mehta referred to Vineet Naraian's judgment and also drew Court's attention to the Vohra Committee Report.

"The intention is that the minimum is 2 years", submitted SG.

Upon Solicitor's submissions, Justice BR Gavai remarked, "The reason for 2 years appears to be that the person can't be touched despite the recommendations of the CVC committee. Independently they could discharge their duties. That's why it was 2 years."

"Yes, but that did not mean a maximum of 2 years," Solicitor General reiterated.

Justice Rao put forth a question as to why was the term two years mentioned in Vineet Narayan's judgment, "Mr SG, the para that you read clearly shows that this is the reason for 2 years. They wanted to avoid immature & short transfers. Why did they fix 2 years?"

"If a highly meritorious person is appointed, can he not be appointed for more than 2 years?" asked Justice BR Gavai.

"We are on a very limited point here. If there is a point of retirement, then what should it be? We are on that," added Justice LN Rao.

Answering the questions put forth by the bench, Solicitor General Tushar Mehta cited the contours of the Prevention of Money Laundering Act. Contending that PMLA had trans-border ramifications, SG posed a question as to why should non-obstante clause u/s 25 of the CVC Act, 2003 should apply if the ramifications are at a stage that Government feels that a particular officer should continue beyond the age of superannuation (60 years).

During the course of hearing, SG while referring to the relevant paragraphs of the Vohra Committee Report submitted that the Report talked about the selection of the right person taking into consideration the peculiar nature that was to be discharged.

"Director should hold a minimum tenure of 2 years irrespective of superannuation. We have to give some weight to the word "minimum". If you want to curtail 2 years, you'll have to have reasons. Since it says this then "we'll have to give some meaning to the word MINIMUM," SG added to substantiate his contention.

Negating the applicability of Rule 56 of the Fundamental Rules, Solicitor submitted that, "At the time of considering extension of tenure, the date on which the tenure is to come to an end & on the date of such consideration FR 56 is not applicable. Irrespective of everything he must have at least 2 years and that Top court would never mean to refer to language of the statute in a truncated manner."

Reliance was also placed on Top Court's judgment on the proposition of contours of a Public Interest Litigation and PIL's in service matters.

"It's not the petitioner's case that there is anything against Incumbent's integrity. In case of any question on his integrity, the same can always be subject to judicial review," Solicitor submitted to conclude his arguments.

The matter has now been reserved for orders.

Background

Mishra was appointed as the Director of ED vide order dated November 19, 2018, and his mandatory two years tenure prescribed under the CVC Act came to an end on November 18, last year. His tenure had however been extended for one more year by the impugned Office Order dated November 13, whereby the 2018 amendment Order for appointment had been amended such that the period of 'two years' written in that order has been modified to a period of 'three years'. Thus, in effect, Mishra has been given an additional one year of service as Director, Enforcement Directorate.

This extension was challenged in a writ petition filed by the NGO 'Common Cause'.

Case Title: Common Cause v. Union of India

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