Centre Moves Supreme Court Seeking Extension Of ED Director SK Mishra's Term Till October 15

On July 11, a three-judge bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol held the extensions given to Mishra’s term to be illegal insofar as it violated the mandate of the Supreme Court’s 2021 judgement in the Common Cause case which specifically barred the central government from granting any further extensions. However, the Court allowed him to continue in his post till July 31, 2023, taking into consideration the concerns expressed by the Union Government regarding peer review of international body FATF and smooth transfer of power.

Solicitor-General Tushar Mehta, on behalf of the Centre, urged a bench headed by Justice Gavai today to hear an application with respect to the judgement before Friday. “I am circulating one miscellaneous application,” the law officer told the court.

The bench agreed to list the matter on Thursday(tomorrow) at 3:30 PM. In the application filed later in the day, the Centre requested Supreme Court to extend ED Director SK Mishra's term till October 15, 2023. Citing the ongoing review by international body Financial Action Task Force on India's anti-money laundering systems, the Centre said that Mishra's continuation is necessary. It said that Mishra had been involved in the preparation of documents for Mutual Evaluation of India since the beginning of the year 2020.

Background

The central government was embroiled in a prolonged political controversy over its decision to extend ED chief Sanjay Kumar Mishra’s tenure, who was first appointed in November 2018. According to the appointment order, he was set to retire two years later on reaching the age of 60 years. However, in November 2020, the Government retrospectively revised the order, increasing his tenure from two years to three years. The Supreme Court was moved to examine the validity of this retrospective revision and extension of Mishra’s tenure by an additional year in Common Cause v. Union of India. A division bench headed by Justice L. Nageswara Rao held that extensions could only be granted in ‘rare and exceptional cases’ for a short period of time. While affirming the move to extend Mishra’s tenure, the apex court cautioned that no further extension was to be granted to the Chief of the Directorate.

In November 2021, three days before Mishra was about to retire, two ordinances were promulgated by the President of India, amending the Delhi Special Police Establishment Act, 1946 and the Central Vigilance Commission Act, 2003. These ordinances eventually culminated into bills that were approved by the Parliament in December. On the strength of these amendments, the tenure of both the CBI and ED Directors could now be extended by one year at a time till the completion of five years from the initial appointment. In November of last year, Mishra was given another one-year extension, which was challenged before the top court now. Also under challenge were the 2021 amendments to the Central Vigilance Act and the Delhi Special Police Establishment Act that allowed the Centre to extend the terms of the directors of the Enforcement Directorate and the Central Bureau of Investigation by one year at a time.

In April of this year, the Supreme Court of India invalidated the term extension given to ED chief SK Mishra, even as it upheld the validity of the 2021 amendments.

This verdict was delivered in a batch of petitions challenging the third extension granted to Enforcement Directorate (ED) chief SK Mishra by the central government, as well as the 2021 amendments to the CVC Act, the DSPE Act, and the Fundamental Rules. The petitioners included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. 

Case Details

Jaya Thakur v. Union of India & Ors. | Writ Petition (Civil) No. 1106 of 2022

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