Petitions Against ED Director's Tenure Motivated By Personal Interests Of Congress Leaders Facing Investigation: Central Government To Supreme Court

The Central government has filed a counter affidavit in the Supreme Court of India in the petition against the extension of tenure of the Director of Enforcement Directorate (ED) Sanjay Kumar Mishra. As per the counter affidavit, the writ petition in question, although has been styled as a Public Interest Litigation, is motivated by personal interest of the President and office bearers of the Indian National Congress (INC) party.

The petition challenges the third extension granted to Director of Enforcement Directorate Sanjay Kumar Mishra and had been filed by Congress leader Dr. Jaya Thakur. The petition has taken the contention that the extension order is contrary to the judgment of the Supreme Court in the matter Common Cause versus Union of India and Others, where the top court had passed a specific direction that SK Mishra should not be given further extension.

The Central Government has stated that the petition is "admittedly intended to scuttle the legitimate statutory investigation being carried out by the directorate of enforcement against certain politically exposed persons." As per the counter affidavit, the real motive of the petition is to question the investigation being carried out against INC president and certain office bearers and thus, is a misuse of Article 32 of the Constitution. Stating that the petition has been filed in a representative capacity for and on behalf of the President and office bearers of Congress, who are being investigated by the ED, Central government has argued that the petition is motivated by personal interest rather than public interest. 

Sanjay Kumar Mishra was first appointed as the ED Director for a two-year term in November 2018 which expired in November 2020. In May 2020, he had reached the retirement age of 60. However, in November 2020, the Central Government issued an order stating that the President had modified the 2018 order to the effect that a time of 'two years' was changed to a period of 'three years.' The same was challenged before the Supreme Court by the NGO Common Cause. On September 8, 2021 in the case filed by Common Cause, Supreme Court directed that further extension should not be given to SK Mishra, whose term as ED Director was then to end on November 16, 2021. However, the Central Government extended his term by one more year with effect from November 17, 2021 by way of promulgation of an ordinance to amend the Central Vigilance Commission Act to allow an extension up to 5 years for the term of ED Director. The Ordinance was replaced with the Act which was passed in December 2021. Thus, the petition filed by Dr Jaya Thakur challenged the order issued by the Central Government on to extend the term of the ED Director Sanjay Kumar Mishra by one more year and also challenged the Central Vigilance Commission (Amendment) Act 2021 which allows the extension of the term of the Director of the Enforcement of Directorate up to 5 years.

Earlier too, the Central government had filed a comprehensive counter affidavit supporting the extension of tenure given to the Director of the ED. The ED had argued that considering the complex nature of crimes which were generally investigated, it was best if the Directors of the agencies had sufficiently long tenures. It was further stated that the legislative motive could not be subject matter of judicial scrutiny.

The counter affidavit filed on 24th February 2023 also argued on similar lines and states–

"The menace of corruption, black money and international financial crime and its intricate links with drugs, terrorism and other criminal offences pose a serious threat to national security in the stability of financial systems in our country. Effectively tackling corruption is therefore a sensual for the realisation of economic and social rights of people and for maintaining their faith in institutions and governance...Keeping the above in view, it was strongly felt that a short long tenure is of the heads of ED and CBI would be highly desirable and in larger public interest."

Case Title: Dr. Jaya Thakur vs. Union of India and Ors. - W. P. (C) No. 1106/2022