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Extension of ED Chief’s Tenure | ‘Subsequent Legislative Change Not Ground To Recall Earlier Order’, Supreme Court Tells Centre

Awstika Das
30 Jan 2023 11:55 AM GMT
Extension of ED Chief’s Tenure | ‘Subsequent Legislative Change Not Ground To Recall Earlier Order’, Supreme Court Tells Centre

The Supreme Court on Monday questioned the Centre's application to recall the direction passed in September 2021 which prevented the extension of the tenure of the Director of Enforcement Directorate Sanjay Kumar Mishra beyond November 16, 2021,

Subsequent legislative change cannot be a ground for recalling or modifying an earlier judgement or order, the Court orally told the Central Government, which is relying on the subsequent amendments made to the Central Vigilance Commission Act which allow the extension of ED Director's term up to five years.

A division bench of Justices B.R. Gavai and Vikram Nath was hearing a bunch of petitions challenging the third extension given to the term of ED Director SK Mishra and also the CVC Amendment Act 2021.

At the very outset, the Solicitor-General pointed out that petitions were based on the judgment passed on September 8, 2021 in the case Common Cause vs Union of India. In November of last year, the Centre, citing the subsequent amendment to CVC Act, filed an application to modify the order which enjoined the government from granting further extensions to Mishra, beyond November 2021. The top law officer told the bench today, “I am not on merits. I only wish to submit that so far as the reliance placed by the petitioner on this court’s order, we have already moved an application for appropriate modifications in the said order. This court was pleased to issue notice as well.” Having explained the context, he urged the bench to ‘tag’ Centre's application along with the batch of petitions.

“We have already indicated that we would not entertain such an application since it is almost in the nature of a review,” Justice Gavai categorically stated. In response, Mehta implored, “Your lordships may reject it after hearing the application. I believe I would be able to persuade your lordships. There have been subsequent legislative changes.” “Subsequent legislative change cannot be a ground for recalling or modifying an earlier judgement or order of this court,” Justice Gavai promptly countered.

Mehta also informed the court that the government would need more time to file a reply. However, on behalf of the petitioner, the court was told that the government was routinely seeking time to file responses. Having said that, the counsel clarified, “I have no objection to whatever amount of time the court gives to the government.” He then added, “But, something should be decided fast because the order of this court is being flouted completely.”

Agreeing to hear Thakur’s petition with the modification application already pending before the court, the bench pronounced, “To be heard [together]. List after three weeks. Replies and counters, if any, to be filed before that.”

The central government has been embroiled in a prolonged political controversy over its decision to extend Mishra’s tenure, who was first appointed in November 2018. According to the appointment order, he was set to retire two years later on reaching the age of 60 years. However, in November 2020, the Government retrospectively revised the order, increasing his tenure from two years to three years. The Supreme Court was moved to examine the validity of this retrospective revision and extension of Mishra’s tenure by an additional year in Common Cause v. Union of India. A division bench headed by Justice L. Nageswara Rao held that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time. While affirming the move to extend Mishra’s tenure, the apex court cautioned that no further extension was to be granted to the Chief of the Directorate.

In November 2021, three days before Mishra was about to retire, two ordinances were promulgated by the President of India, amending the Delhi Special Police Establishment Act, 1946 and the Central Vigilance Commission Act, 2003. These ordinances eventually culminated into bills that were approved by the Parliament in December. On the strength of these amendments, the tenure of both the CBI and ED Directors could now be extended by one year at a time till the completion of five years from the initial appointment. In November of last year, Mishra was given another one-year extension, which has been challenged now.

The recent amendment to the Central Vigilance Commission Act has has also been challenged before the apex court in at least eight separate public interest litigations. The petitioners include Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. Apart from being assailed for having violated the injunction issued by the apex court in Common Cause, the ordinances were challenged for conferring "unfettered discretion" on the Union over the appointment and tenure of the Directors of CBI and ED, and therefore, allegedly compromising the independence of the investigative bodies.

In a counter-affidavit, the Centre told the Supreme Court that the petitions are motivated by oblique political interests since they have been filed by and on behalf of petitioners belonging to political parties whose leaders are currently being investigated on charges of money laundering. The petitions have been filed “to ensure that the Enforcement Directorate does not and cannot discharge its duties fearlessly,” alleges the Central Government. “The petitioner would only be convinced that these agencies are independent if these agencies were to turn a blind eye to the offences committed by the political leaders of their political party,” the affidavit stated.

Case Title

Jaya Thakur v. Union of India & Ors. | Writ Petition (Civil) No. 1106 of 2022

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