Manas Dasgupta
NEW DELHI, July 11: The Supreme Court on Tuesday held the back-to-back third extension give to the director of the Enforcement Directorate (ED) Sanjay Kumar Mishra as “illegal and invalid in law” and asked the government to appoint a new director by July 31.
The court agreed to allow Mishra to continue till the end of the month to facilitate a “smooth transition” of office to his successor.
The Bench headed by Justice B.R. Gavai said the Centre defied a mandamus given by the court itself in a judgment in September 2021 to not give Mishra any further extensions. But the government sat “in appeal” of a judicial direction and granted Mishra the one-year extensions twice in November, 2021 and again in November, 2022, the Supreme Court said hearing petitions challenging the Centre’s decision to extend Mishra’s tenure for the third time on November 17 last year.
The Supreme Court let him continue till July 31 after the Centre expressed concern about continuity in the middle of a peer review by the Financial Action Task Force (FATF), the global terror financing watchdog.
The Centre had cited the peer review every time it extended Mishra’s term. In May, the government had told the Supreme Court that he would retire in November and that the petition was motivated by an “oblique personal interest rather than any public interest”, for the cause of appeasing “political masters.”
“This officer is not some DGP (Director General of Police) of a state but an officer representing the country in a United Nation-like body and hence parliament has taken a conscious call,” said Solicitor General Tushar Mehta, the Centre’s lawyer, defending the multiple extensions give to the officer.
In the previous hearing in May, Mehta had similarly argued: “He has been overseeing some important investigations related to money laundering and his continuity was required in the interest of the nation. He is not indispensable. Peer review was earlier scheduled to be held in 2019 but was postponed due to Covid and it is happening in 2023.” In a peer review, countries are assessed on steps taken to check terror financing and money laundering, say officials.
Mishra was given charge of the Enforcement Directorate in November 2018. He was to retire two years later after turning 60. But in November 2020, the government gave him an extension. His term was extended twice after that.
However, within months of the September, 2021, judgment the court had dismissed petitions challenging amendments made to the Central Vigilance Commission (CVC) Act and Delhi Special Police Establishment Act. These amendments had paved the way for the government to stretch Mishra’s tenure. The court said judicial review was necessary only if a law is proved arbitrary or a violation of constitutional or fundamental rights. On the strength of these changes, the government had again given Mishra his third extension in November, 2022. He was to continue till November 18, 2023.
“We find that the legislature is competent, no fundamental rights have been violated, and there is no manifest arbitrariness…extension can be granted to high-level officials such as this in the public interest and with reasons in writing,” the Supreme Court had said.
KV Vishwanathan, assisting the Supreme Court with the case, urged the judges to strike down the amendments in the “larger interest of democracy,” expressing fear that it would be misused by future governments.
The petitions filed by Congress party spokesperson Randeep Singh Surjewala, Trinamool Congress (TMC) leader Mahua Moitra, social activist and General Secretary of Madhya Pradesh Congress Mahila Committee Jaya Thakur had argued that the extensions affect “institutional independence.” The court’s amicus curiae, senior advocate K.V. Vishwanathan, had argued during the hearings that this case did not concern just one officer. He said the larger issue was to “protect or insulate the institution from the executive.”
Senior advocate A.M. Singhvi, for one of the petitioners, had asked the court if “piecemeal extensions impinge on the independence of the person himself.” “What is being done is the exact reverse of the fixity of tenure upheld in the statute itself… This shows the government telling the officer ‘unless you do my bidding…” Singhvi had submitted.
Senior advocate Gopal Sankaranarayanan, for petitioners, had exclaimed that “like this, he [Mishra] will go on till he is 95!” Senior advocate Anoop Chaudhary, also for the petitioners, had said the extensions amounted to a “nullification of the court’s judgment.”
Mishra was first appointed as the ED Director on November 19, 2018, for a fixed period of two years. Days before his tenure was to end, the President on November 13, 2020, modified the previous order retrospectively and changed Mishra’s tenure to three years.
On September 8, 2021, a Bench of Justices B R Gavai and L Nageswara Rao upheld the Centre’s order extending the tenure of Mishra beyond two years. However, the Bench said that “extension of tenure…to officers who have attained the age of superannuation should be done only in rare and exceptional cases”, and that such extensions “should be for a short period.”
Critics say that the successive extensions granted to Mishra point towards his “centrality to the government’s playbook”.
Under Mishra’s tenure, the ED had come to be touted as the “new CBI”, indicating the ferociousness with which the Central agency is carrying out its operations.
Opposition parties, many of whose leaders including Congress leaders P Chidambaram and D K Shivakumar, NCP leaders Sharad Pawar and Anil Deshmukh, and AAP leaders Satyender Jain and Manish Sisodia have been at the receiving end of the ED’s stick, cry foul over the agency allegedly being a tool in the hands of the government. They point to its role as a “catalyst” in how political alliances are made and broken.