The Government of India has moved the Supreme Court seeking an extension of the term for Enforcement Directorate (ED) Director Sanjay Kumar Mishra, which is set to end on July 31.
On July 11, the Supreme Court of India held that the extension given to SK Mishra is illegal as it violates the 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.
“It is, thus, clear that it is not at the sweet-will of the Government that the extensions can be granted to the incumbents in the office of the Director of CBI/Director of Enforcement. It is only on the basis of the recommendations of the Committees which are constituted to recommend their appointment and that too when it is found in public interest and when the reasons are recorded in writing, such an extension can be granted by the Government,” the court said in its 103-page judgement.
The court’s three-judge bench, comprising Justices BR Gavai, Vikram Nath and Sanjay Karol, was hearing the petitions challenging the extension granted to ED director Sanjay Kumar Mishra and the 2021 amendments. The petitioners include Congress leaders Randeep Singh Surjewala, Jaya Thakur, and Trinamool Congress (TMC) MP Mahua Moitra, among others.
The petitioners’ counsel argued that the impugned amendments allow the government to grant extensions of one year at a time, thus, enabling the government to apply a ‘carrot and stick’ policy. Therefore, the directors of ED and CBI would have to act as per the government’s desire to secure such an extension of their tenure.
The counsel argued that the very purpose of insulating these agencies from extraneous governmental pressure would be wiped out due to these amendments. The counsel contended that if the impugned amendments are permitted to exist, then they would frustrate the purpose of insulating the aforesaid high posts from extraneous pressures.
The court noted that the Government of India appoints ED’s director on recommendations of a Committee consisting of the Central Vigilance Commissioner, Vigilance Commissioners and certain high-ranking officials from the Government of India. The court further noted the safeguards in place to ensure strong protection of the Central Vigilance Commissioner and the Vigilance Commissioners under the CVC Act, thus, insulating them from extraneous pressures.
“As already observed herein above, there is safeguard in the statute which insulate the office of the Central Vigilance Commissioner and the Vigilance Commissioner from extraneous pressures and permits them to act independently,” the court said.
The court further noted the procedure for the appointment of the CBI director. The court noted that a director to CBI is appointed based on recommendations of a Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. “Therefore, the appointment of the Director of CBI cannot be made unless it is recommended by the High-Level Committee consisting of the Prime Minister; the Leader of Opposition; and the Chief Justice of India or Judge of the Supreme Court nominated by him/her,” the court said.
The court noted that the impugned amendments allow the government to extend the term for the directors of ED and CBI based, in the public interest, one year at a time, based on the recommendation of the respective committees constituted for their appointments, with reasons recorded into writing. The court said that it is not “at the sweet-will” of the government, that the extensions are granted to the incumbent directors of ED or CBI.
“When a committee can be trusted with regard to recommending their initial appointment, we see no reason as to why such committees cannot be trusted to consider as to whether the extension is required to be given in public interest or not,” the court said.
“We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures,” the court added.
While the court upheld the impugned amendments, it held that the extension given to ED director SK Mishra is illegal as it contravenes the Supreme Court’s 2021 judgement in the Common Cause case. 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 – FATF.
“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.
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