On July 11, the Supreme Court of India held that the extension given to the Enforcement Directorate (ED) Director Sanjay Kumar Mishra is illegal as it violates Supreme Court’s 2021 ruling in the Common Cause case, wherein the court held that he should not be given further extension. SK Mishra is an Indian Revenue Service (IRS) officer of the 1984 batch.
The court, however, allowed SK Mishra to continue as the ED Director till July 31, 2023, taking into consideration the Government of India’s concerns regarding a smooth transfer of power and the peer review of the intergovernmental organisation – Financial Action Task Force (FATF).
The court also upheld the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act, which allows the Government of India to extend the term of the heads of ED and Central Bureau of Investigation (CBI) up to 5 years. The court further noted that the scope of judicial review over the legislation is limited.
The court further observed that the appointments of these officers are made by a high-level committee, opining that there are sufficient safeguards. The court also said that an extension of the term could be granted to these officers in the public interest with reasons recorded in writing.
The court’s three-judge bench, comprising Justices BR Gavai, Vikram Nath and Sanjay Karol, heard the batch of pleas challenging the extension of the term given to SK Mishra and recent amendments to the CVC Act. The petitioners include Congress leaders Randeep Singh Surjewala, Jaya Thakur, and Trinamool Congress (TMC) MP Mahua Moitra, among others.
While the court upheld the Government of India’s recent amendments to the acts, it held that the extension given to SK Mishra was in the teeth of the Supreme Court’s earlier ruling.
“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 said while pronouncing the judgement. The court held that the orders dated November 17, 2021, and November 17, 2022, extending SK Mishra’s term by one year each were held to be illegal.
Background
On May 8, the Supreme Court reserved its judgement on the batch of petitions challenging the extension of the term to ED Director SK Mishra, and the recent amendments made to the CVC Act and the Delhi Special Police Establishment Act.
The Government of India’s counsel, Solicitor General of India Tushar Mehta, submitted that the third extension of service granted to SK Mishra was due to a peer review being conducted by the FATF and that his tenure would end in November, this year.
SG Tushar Mehta said, “This officer is not some DGP of any State but an officer representing the country in a United Nation-like body (that is FATF) and is in the midst of something. This court must not interfere with his tenure, and from November onwards, he will not be there.”
He said, “Sanjay Kumar Mishra was given an extension as the FATF peer review is taking place in the country, and some guidelines need to be followed. FATF is a global anti-money laundering and terrorist …financing watchdog.” Moreover, SG Tushar Mehta said, “He has been overseeing some important investigations related to money laundering, and his continuity was required in the interest of the nation.”
On November 15, 2021, the Government of India brought amendments to the CVC Act and the Delhi Special Police Establishment Act governing the appointment of heads of ED and CBI. The amendments allowed the government to extend the tenure of ED and CBI heads for a period of three years, beyond their two-year tenure, by granting an extension of one year each.
SG Tushar Mehta contended, “It is not a case that he is not dispensable or if an extension is given then some other person’s chances of getting to the top position is compromised. There is no second or third person here. Appointment of ED director is a very rigorous process and a person is selected from a common pool of officers from IAS, IPS, IRS or others and he is to be in the rank of additional chief secretary.”
Notably, the ED is investigating several high-profile and politically sensitive cases in various states. SG Tushar Mehta submitted that it was ‘not out of likeness’ for a particular individual but concerns over the performance of the country during the FATF review that decided the move.
“It was not love for one particular individual but the Prevention of Money Laundering Act (PMLA) has trans-border implications. India is due for peer review by FATF which happens once in 10 years. A person interacting with FATF is best suited to deal with them,” he said.
“Sometimes, continuity is needed when you are dealing with world bodies. What is paramount was the performance of our country (in the review). It is not our case that he (Mishra) is indispensable,” he added. “Arguments heard. Order reserved,” the bench said.
Notably, in 2022, the Government of India submitted a counter-affidavit in the case contending that the PILs against the extension granted to SK Mishra stems from a political motive.
“The present repetition is clearly motivated and is admitted, admittedly intended to scuttle the ledger to meet statutory investigation being carried out by the direct rate of enforcement against certain politically exposed persons. The real motive of the petition is to question the investigation being carried out against the president and certain office bearers of the Indian National Congress Party, as is evident from the writ petition instead of available alternative remedies like filing an appropriate petition for cost sharing, etc under the CRPC,” the affidavit read. The affidavit submitted that the PILs are filed by politicians, whose leaders are under investigation by the ED, however, their PILs do not mention the same.
“The Directorate is strictly going on in accordance with law which is reflected from the fact that in most cases, either the competent courts have taken cognizance or constitutional courts have refused to grant any relief to such parties of the above political parties. There is a manifest political interest in filing the above writ petitions which is apparent, it clearly appears that to achieve such political advantage, the petitioners are camouflaged as political interest litigation, without even bothering to mention the bad the important leaders the parties to which each of the petitioners belong are being investigated.” the affidavit stated.
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