'Can't Seek Review Under The Garb Of Miscellaneous Application': Supreme Court On Centre's Plea To Modify Order On ED Director's Term

Advocate, Mr. Zoeb Hossain appearing on behalf of the Union Government sought time to file a rejoinder to the counter affidavit filed by the respondents. Advocate, Mr. Prashant Bhushan representing respondents objected to the filing of the miscellaneous applications seeking modification, which is in the nature of review. He added -

"They (Centre) are saying subsequently we have brought a retrospective amendment to the act (CVC Amendment Act). That would be taken up in the other petition that is pending. It cannot be through this MA."

Mr. Hossain informed the Bench that he is led by the Solicitor General of India, who is on his legs before another Bench of the Apex Court. He assured that on the next day the Union Government would make good their submissions.

After hearing the Counsels briefly, the Bench comprising Justices B.R. Gavai and B.V. Nagarathna posted the matter for hearing after two weeks. However the Judges orally made certain observations with respect to filing such a Miscellaneous Application.

Justice Gavai reckoned, "Under the garb of MA you cannot seek review."

Justice Nagarathna added, "There would be no finality then."

In its judgment delivered on September 8, 2021 in the case filed by Common Cause, the Supreme Court had directed that further extension should not be given to SK Mishra, whose term as ED Director was then to end on November 16, 2021. In that judgment, the Court had held that the Centre could extend the term of ED Director beyond 2 years only in "rare and exceptional circumstances". Later, in November 2021, a few days ahead of the end of SK Mishra's term, the Centre promulgated an Ordinance to amend the CVC Act to enable the Centre to extend the term of ED Director up to 5 years. The Ordinance was replaced by an Act passed by the Parliament in December 2021. Based on the Ordinance, Mishra was given a further extension of one year.

On 20.10.2022, the bench issued notice to Common Cause on the Centre's application seeking to modify the last year's order. Advocate Prashant Bhushan accepted notice on behalf of Common Cause.

On the last occasion, the Solicitor General submitted that the application is justified on the basis of the CVC Amendment Act 2021. The bench had orally observed that it will examine the issue from the perspective of the changed law and that the previous order was passed on the basis of the law which existed then. The Solicitor General also informed the Court that a batch of PILs challenging the CVC Amendment Act 2021 and the extension of SK Mishra's term are pending.

Case Title: Common Cause v. Union of India, Miscellaneous Application No. 1756/2022 in W.P.(C) No. 1374/2020