On July 11, a three-judge bench of Supreme Court held the extension given to the term of Enforcement Directorate (ED) chief, Sanjay Kumar Mishra, beyond September 8, 2021 as illegal for having violated the mandate of the 2021 Supreme Court judgment in the case of Common Cause (A Registered Society) v. Union of India and others. Previously, in the abovementioned case, a bench of Justices LN Rao and BR Gavai had held SK Mishra should not be given further extension.
“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, as reported by LiveLaw. Therefore, the orders dated November 17, 2021 and November 17, 2022, issued by the Union, granting extension to SK Mishra for a period of one year each, were held to be illegal.
Notably, the Court allowed Mishra to continue in his position until July 31, 2023, despite the fact that the extension of his term was ruled to be “invalid in law”. This was done in light of the Union Government’s concerns regarding the peer review of the Financial Action Task Force (FATF) and a peaceful transfer of power.
A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol were debating two points at the current hearing: the first concerned the legitimacy of the amendments, and the second concerned the validity of the extensions granted for Mishra’s tenure.
The Court affirmed the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act, allowing the Centre to increase the terms of the heads of the ED and CBI by up to five years. The Court upheld these amendments, opining that there are appropriate protections, noting that the scope of judicial review over legislation is relatively constrained and that the appointments of these officers are determined by a high-level committee. In the public interest and with written justification, high-level officials may be allowed an extension, the Court held, as reported by LiveLaw.
The petitioners in the present case included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. The bench had reserved its judgment in May after have said that the might revisit its 2021 ruling, which had provided that the tenure of a superannuated officer may be extended only in exceptional circumstances.
In May 2022, when the Solicitor General Tushar Mehta had told the Supreme Court that FATF’s once-in-a-decade peer review of India’s performance in curbing terror financing necessitated Mishra’s extension, Justice Gavai had asked if there was no other person in the “entire organisation competent to discharge these responsibilities.”
“Even if we accepted your argument, what will happen beyond 2023 when Mishra finally retires?” Justice Gavai had further asked, as reported by the Wire.
Background of the Case:
On November 19, 2018, SK Mishra was appointed the ED Director for a fixed period of two years. On November 13, 2020, just days before Mishra’s tenure was supposed to end, the President had modified the previous order retrospectively and changed Mishra’s tenure from two years to three years.
In September 2021, the Supreme Court bench of Justice L. Nageswara Rao upheld the extension, saying that such retroactive revisions are only allowed in the “rarest of rare cases” but that no further extension can be given to Mishra.
The 2021 judgment of the Supreme Court can be read here:
After the Supreme Court had said that no extensions could be granted to Mishra, the Union government issued a notification paving the way for a second extension for Mishra from November 17, 2021 to November 17, 2022. When Congress leader Jaya Thakur moved court against this, the government gave him a third extension, till November 18, 2023.
Meanwhile, the government promulgated an ordinance last year under which the tenure of ED and CBI chiefs could be extended by up to three years after the mandated term of two years.
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