Supreme Court Invalidates Extensions Of ED Director SK Mishra's Term; Permits Him To Continue Till July 31

The Supreme Court on Tuesday held as illegal the extension given to the term of Enforcement Directorate chief SK Mishra for violating the mandate of the Supreme Court's 2021 judgment in the Common Cause case that he should not be given further extension. 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.The Court also upheld the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act which allow the Centre to extend the term of the heads of ED and CBI up to 5 years.Noting that the scope of judicial review over legislation is very limited and that the appointments of these officers are made by a high-level committee, the Court upheld these amendments, opining that there are sufficient safeguards. Extension can be granted to high-level officials in the public interest and with reasons in writing, the Court said. A three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol heard the batch of petitions challenging Mishra’s appointment as well the recent amendment to the Central Vigilance Commission Act. The petitioners included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. The bench had reserved its judgement in May.The bench broadly considered two issues - first, regarding the validity of the amendments; second, the validity of the extensions given for Mishra's term. While ruling in favour of the Union in the first issue, as regards the second issue, the Court held that the extensions were clearly in the teeth of the Common Cause judgment."Although the basis of a judgment can be taken away, the legislature cannot annul the specific mandamus that barred further extension...That would amount to sitting in appeal over judicial act", Justice Gavai stated while pronouncing the operative parts of the judgment. Therefore, the orders dated November 17, 2021 and November 17, 2022 granting extension to SK Mishra for a period of one year each were held to be illegal. 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, which has been challenged now. The recent amendment to the Central Vigilance Commission Act 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...

Supreme Court Invalidates Extensions Of ED Director SK Mishra's Term; Permits Him To Continue Till July 31

Awstika Das

Tags