'Is There No Other Competent Person?': Supreme Court Asks Centre On ED Director's Term Extension

"Is there no other competent person in the entire agency?" the Supreme Court on Wednesday asked Solicitor-General for India Tushar Mehta, in response to his submission that Enforcement Directorate chief Sanjay Kumar Mishra's tenure had been extended to ensure continuity in leadership ahead of the FATF peer review later this year. A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol was hearing a batch of petitions challenging a fresh extension given to the term of the chief of the agency as well as the Central Vigilance Commission (Amendment) Act, 2021.The solicitor-general sought to defend the government's decision to extend the tenure of the ED director on the ground that ensuring continuity in leadership was imperative, especially in light of the upcoming Financial Action Task Force (FATF) peer review due to take place in 2023. FATF is a global money laundering and terrorist financing watchdog that has a system of periodic peer-reviewed mutual evaluation to assess the levels of implementation of its recommendation by each of its members. India's performance according to the watchdog's norms will be assessed this year, after a decade, the law officer informed the bench. He also pointed out that based on this assessment, countries are categorised into lists indicating the level of their performance, which would ultimately entitle (or, disentitle) them from not just receiving financial assistance from international organisations such as the World Bank and the Asian Development Bank, but also borrowing from foreign banks. "The rating of each country also has a direct bearing on the stock market and share market since our shares are traded on Wall Street," Mehta said.Solicitor-General Mehta further told the bench:"The peer review was supposed to take place in 2019-20. However, because of COVID-19, this got pushed back. Now, it will be held in 2023. That was one of the major factors why we amended the provision and tried to take away the basis of the judgement. This was so that a new person may not be forced to interact with international peers who would be rating us on a number of parameters. The person who has been interacting with the task force would be best suited to handle them and answer their many questions. Facing the peer review would require not only the factual background of the past years, but also a different level of skill, which an individual may acquire only after they have worked in that particular capacity for a while."Justice Gavai, in response to this submission, asked the solicitor-general whether there was no one else in the entire agency who could take over the responsibilities of the incumbent director, should he retire. The Supreme Court judge remarked:"Is there no other person in the entire organisation who is competent to discharge these responsibilities? Even if we accepted your argument, what will happen beyond 2023 when Mishra finally retires? What will happen to the Directorate of Enforcement then? If he had, for instance, completed the five-year period that has now been set as the outer limit, what would have happened? Would you have allowed, instead of five years, six years, by an amendment?"Mehta responded that there were many competent officers, but continuity was sometimes necessary when dealing with international organisations. He further illustrated, "Let's say, someone is negotiating diplomatic talks for extradition of a fugitive. It is not a simple matter of a successor reading the file and taking over. The incumbent shares diplomatic relations with their foreign counterparts, they have had discussions that are not made part of the record. At that level, not everything is in writing."The law officer added that at this juncture, ensuring continuity was paramount and this was a relevant factor that weighed heavily with the government when it brought about the 2021 amendment, on the strength of which Mishra's tenure was extended. He explained, "The world never stops for anyone. No one person is indispensable. But, in certain cases, continuity is necessary. This is not about an individual, but the effective performance of the entire country."Not only this, but Mehta also pointed out that the anti-money laundering statute was an act unlike any other civil or criminal act in the country and the office of the agency's director a 'sui generis' position. This was because of the profound transborder implications of the statute. Flexibility in appointments and extension of tenure - 'free play in the joints' - was needed in light of these implications and with a view to preserving continuity in administration, he said.Incremental increase in tenure ensures ED chief does not become a 'non-performer' or 'law unto themselves': SG Tushar MehtaBesides arguing that the impugned amendment was essential in the national interest, the solicitor-general also vigorously disputed the petitioners' contention that an incremental one-year-at-a-time policy of granting...

'Is There No Other Competent Person?': Supreme Court Asks Centre On ED Director's Term Extension

Awstika Das

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