Manas Dasgupta
NEW DELHI, July 27: In a special hearing, the Supreme Court on Thursday provided some reprieve to the Enforcement Directorate chief SK Mishra extending his tenure from July 31 to September 15 in the “public and national interest.”
The order came on Centre’s appeal for an extension of the deadline till October 15. The court — which earlier held a second and a third extension as “illegal” — relented marginally after the Centre argued about “unusual circumstances” and underscored a need for continuity. The Centre also argued that some neighbouring countries want India to fall into Financial Action Task Force’s (FATF) ‘grey list’ and so continuity is necessary in the post of the Enforcement Directorate chief.
Stressing that the court would not have entertained the government’s request in “ordinary circumstances”, especially after declaring Mr. Mishra’s continuation as ED Director “illegal”, the Special Bench headed by Justice B.R. Gavai allowed him to carry on at the ED’s helm till mid-September.
The Bench, also comprising Justices Vikram Nath and Sanjay Karol, made it clear that it would allow no further requests from the government for his extension. It said Mishra would cease to be ED Director from September 15-16 midnight.
The hearing began at 3.30 p.m. with a sharp question from Justice Gavai to the government, represented by Solicitor General Tushar Mehta. “Are you not giving a picture here that your entire department is full of incompetent people except for this one person… Is it not demoralising for the entire force that except for this one person, the entire department will collapse,” Justice Gavai asked.
Justice Gavai said the court could have stopped this person from continuing as ED Director from the very day of the judgment on July 11. “We gave you time till July 31 for the sake of smooth transition,” the judge observed.
Mehta agreed that no one was indispensable. He said a good FATF peer review was a five-year exercise. “Continuity in office would help the country and decide the country’s ability, help in international credit ratings, financial arrangements with the World Bank… It is a coincidence that the July 11 verdict came at the time of the FATF review,” he submitted.
Mehta argued that the circumstances of Mishra are unusual in view of the coming review by the global terror financing watchdog FATF. The onsite review of India’s regulations and supervision by the inter-governmental organisation, which also combats money laundering, is due in November. The team is likely to reach on November 3.
The court pointed out that even after holding his extensions since 2021 illegal, the Centre has been given time till July 31. When the Centre persisted with its arguments, senior advocate Abhishek Singhvi, who represented the petitioners, said the FATF review is a process involving 40 parameters. Money laundering is one such parameter. Also, the FATF review is an ongoing process till 2024. So, will they then seek extension till 2024?” he said.
“Out of 140 crore people, are we depending on only one officer? The conduct of Centre seeking extension is deplorable,” he added. The Centre has cited the peer review every time it extended Mishra’s term. The officer was given charge of the Enforcement Directorate in November 2018 and was to retire in two years when turned 60. But in November 2020, he got one extension, and it was followed by two more.
“It is very sad to see the Centre saying the future of the country is on one man’s shoulders. It is the Ministry officials, the Secretary of Revenue, and not ED Director, who engages with the FATF,” Singhvi submitted.
Senior advocate Anoop Chaudhary, also on the petitioner side, highlighted the incongruity of a man whose continuity was declared illegal by the top court engaging with the FATF. “Will this not affect the country’s image? The ED Director is only a small cog in the constitutional machinery. Let us not make him into a constitutional figurehead on whom the future of this country depends,” he said.
Advocate Prashant Bhushan questioned the timing of the Centre’s application. He said any extension of Mr. Mishra’s tenure would be a “gross abuse.” “If the Supreme Court accepts this application, it will make mincemeat of the settled law,” he cautioned.
Mehta countered that the petitioners represent various political parties. He said some of the submissions were intent to give the country a bad name. He clarified that what the government wanted to convey was that Mr. Mishra’s continuation in office would help the country make an effective presentation in the FATF review.
Besides, he said the ED Director directly engages the FATF assessment team on the implementation of the Prevention of Money Laundering Act.
In May, the Centre had told the Supreme Court that he would retire in November and that the petition challenging his extension was meant to appease “political masters.” Senior Congress leader Randeep Surjewala, who has filed one of the petitions, has claimed that the government is misusing central agencies to target the opposition leaders and destabilise elected governments in non-BJP-ruled states.
Additional Solicitor General S.V. Raju said there were hostile countries which wanted India to be in the “grey list”. “We are now in the FATF list of compliant countries. A new ED Director would take at least six months to look through and understand the files,” he said.