BREAKING| Supreme Court Extends ED Director SK Mishra's Term Till September 15 "In Larger National Interest"; Says No Further Extensions

A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol partly allowed Centre's plea to extend Mishra's term till October 15, 2023. The bench however added that no further extensions will be allowed to him.

"In ordinary circumstances, we would not have accepted such an application having held that the extension granted to him was illegal. We allowed him to continue till July 31 to allow smooth transition. Taking into consideration larger national interest, we permit ED director to continue for some more period.

We add that no further application would be entertained for grant of extension. We also direct that the respondent will cease to be the director of ED with effect of midnight of 15th/16th September 2023", the bench ordered. The Centre cited the involvement of the outgoing ED director in the review of India’s anti-money laundering mechanisms by the Financial Action Task Force(FATF), a global peer review body.

Is only one person competent? Bench asks during the hearing

"Mr.Solicitor, are we not giving a picture that your entire department is full of incompetent persons and that there is only one competent? Is it not demoralising to the entire department that it cannot work if one person is not there?", Justice Gavai asked Solicitor General of India Tushar Mehta when the hearing started.

SG agreed that no person is "indispensable"; but added that that the FATF peer review has been going on for the past five years and there will be continuous questions which are to be answered.  "It is not that anybody is indispensable. But the continuity will help the nation. The FATF review will determine the country's credit rating and credit rating will determine whatever financial help the country can get from World Bank etc", SG said. He informed that the FATF committee is coming for on-site visit from November 3.

Justice Gavai pointed out that the judgment allowed him to continue till July 31, despite holding his extensions to be illegal, considering this fact. "We could have held that he cannot hold office for any single day further, but we still allowed him", Justice Gavai said.

Additional Solicitor General SV Raju said that the non-extension can lead to a negative image and said that there are other countries which are trying to ensure that India will fall into the "grey list". SG said that as per the present FATF review, India is on the "compliant list".

Senior Advocate Dr Abhishek Manu Singhvi, appearing for one of the petitioners who questioned the extension, said, "it saddens me to see the extent to which my learned friends say that everything in the country is dependent on the shoulder of one single man". 

If FATF review is the reason, then why the extension is sought only till October 2023, as the process goes on till 2024, asked Singhvi. He said that the queries to the FATF are responded by the Secretary head and not the head of the investigating agency and that the review is based on 40 parameters and not the performance of ED alone.

"This also sends a very wrong message. It is a country 140 billion people and we are dependent on one officer? This is deplorable", Singhvi urged.

Senior Advocate Anoop George Chaudhary, appearing for another petitioner, submitted that Revenue Secretary is the main person for FATF review and the officers holding that post have changed in last three years. He added that the Financial Intelligence Unit(FIU) is a more important office that the Directorate of Enforcement in this process. ED comes down below all other agencies like FIU, CBI etc.

"The FIU is designated as the central national agency for receiving, analysing and processing information related to suspect financial transactions and for efforts relating to money laundering. A wrong picture is being given to this Court. If the revenue secretaries can be changed three times and if the FIU Director can be sent on repatriation, then the ED officer can be changed. An acting director can be appointed", Chaudhary said.

"What message are we sending if an illegal person is allowed to continue? We are giving a signal to the international community that we have no person other than Mr.Mishra whose extensions have been held illegal?", the senior counsel submitted.

Advocate Prashant Bhushan submitted that the averments in the Centre's applications were made in the previous hearing as well. "If this person is so important, the Government can appoint him as a special advisor to whoever is going to be there for the FATF review. Why do they seek extension till October when the process goes on till 2024?", he submitted. He termed the Centre's application a "gross abuse of the process of the court" and said that allowing such application will "make a mincemeat of the settled law".

In rejoinder, SG said that some of the petitioners' submissions are made "to ensure that the country gets a bad name" and highlighted that the petitioners are all representing political parties. "It is not my case that one person is indispensable. My case is of continuity for effective presentation before the international body", the SG said. He highlighted that the Supreme Court held the previous extensions to be illegal on a technical ground and not on ground of any character blemish or inefficiency.

Background

The central government has been embroiled in a prolonged political controversy over its decision to extend ED chief Sanjay Kumar 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. Both the extensions granted to Mishra beyond the period that received the court’s sanction was challenged in the Supreme Court. Also under challenge were the 2021 amendments to the Central Vigilance Act and the Delhi Special Police Establishment Act that allowed the Centre to extend the terms of the directors of the Enforcement Directorate and the Central Bureau of Investigation by one year at a time.

A bench headed by Justice Gavai reserved its judgement in May after hearing the petitioners as well as the Centre. Earlier this month, the Supreme Court invalidated the term extension given to ED chief SK Mishra, even as it upheld the constitutionality of the 2021 amendments. The three-judge bench held the extension given to Mishra’s term to be illegal insofar as it violated the mandate of the Supreme Court’s 2021 judgement in the Common Cause case. However, the Court allowed him to continue in his post till July 31, 2023, taking into consideration the concerns expressed by the Union Government regarding peer review of international body FATF and smooth transfer of power.

This verdict was delivered in a batch of petitions challenging the third extension granted to Enforcement Directorate (ED) chief SK Mishra by the central government, as well as the 2021 amendments to the CVC Act, the DSPE Act, and the Fundamental Rules. The petitioners included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale.

Ahead of July 31, Solicitor-General Tushar Mehta yesterday mentioned a miscellaneous application filed by the Centre seeking a further extension of ED Director SK Mishra’s term till October 15, 2023. The central government has cited the ongoing review by international watchdog Financial Action Task Force of India’s anti-money laundering mechanisms as a reason for its request. Mishra has been involved in the preparation of documents for the FATF mutual evaluation since the beginning of the year 2020, the Centre has told the Supreme Court. Acceding to the union government’s request, Justice Gavai agreed to list the matter for urgent hearing on the very next day, i.e., today (Thursday).

Case Details

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

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