Supreme Court Issues Notice To Centre On Pleas Challenging Extension Of ED Director's Tenure

The Supreme Court on Tuesday issued notice in the petitions challenging the order issued by the Central Government on November 17, 2021 to extend the term of the ED Director Sanjay Kumar Mishra by one more year.

The petitions also challenge Central Vigilance Commission (Amendment) Act 2021which allows the extension of the term of the Director of the Enforcement of Directorate up to 5 years.

A bench of Chief Justice of India NV Ramana, Justices Krishna Murari and Hima Kohli was considering the petitions filed by Congress leader Dr Jaya Thakur, RS Surjewala, Trinamool Congress leaders Mahua Moitra and Saket Gokhale, Vineet Narain and ML Sharma.

"Issue notice to the central law agency," the bench said.

What Transpired In The Court Today?

When the bench took up the matter for hearing, Advocate ML Sharma, who had raised a demand yesterday that his petition should be the lead matter being the first petition to be filed, repeated his objection regarding the order of listing (his case was listed as the last item today).

"Mr Sharma, don't create a problem everyday. I've directed the Registry to change the list. Mr Sharma you have to understand. When some counsel mentions the matter, the Registry lists that matter first and after that they list other pleas", the CJI said.

Advocate ML Sharma submitted that the impugned ordinance was in violation of Article 100 of the Constitution.

"You cannot issue an ordinance to change the provision of the Constitution. Neither Lok Sabha or Rajya Sabha have passed this as per Article 100 of the Constitution. Just saying that a bill was passed is violation of Article 100. Without voting, the bill cannot be passed. Ordinance itself was not passed in the house by way of Article 100. Otherwise the proceedings may have the votes. The bill which was moved in the parliament was not passed in the house. So the ordinance goes & it was not even presented before the house within 6 months and thus this amendment should go," Sharma further added.

Senior Advocate AM Singhvi for congress leader Randeep Singh Surjewala submitted that the amendment allows the Central Government to give yearly extensions to the ED director up to 5 years. This puts the officer at the discretion of the Centre and compromises the independence of the post.  He also pointed out that in the judgment in the case Common Cause v. Union of India, the Court had directed last year that Mishra cannot be given further extension.

Senior Advocate further submitted that unlike the CBI, the committee which appointed ED's Director comprised only the Executives.

Senior Advocate Gopal Sankaranarayanan submitted that Mishra had completed 4 years as ED Director.

Referring to the failure of ED's director to upload his immovable property returns, Senior Advocate Sanjay Ghose for TMC Leader Saket Gokhale said,

"ED' Director did not upload his immovable property returns from 2017-2020. The vigilance rules and the official memorandum states that clearance with respect to top post won't be granted if the returns aren't uploaded. The appointment is illegal on this ground also."

On September 8, 2021 in the case filed by Common Cause 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.

However, contrary to the Supreme Court's direction, the Central Government extended his term by one more year with effect from November 17, 2021, the petitioners argue. This was done by way of promulgation of an ordinance to amend the Central Vigilance Commission Act to allow an extension up to 5 years for the term of ED Director. The Ordinance was replaced with the Act which was passed in December 2021.

It has been argued in the plea that the was brought solely with the intention of giving benefit to SK Mishra. It is stated that Mishra had otherwise attained superannuation after attaining the age of 60 years in May 2020. He was initially appointed as ED Director in November 2018 for a two year period. Despite his superannuation, in November 2020, the Centre passed an order to retrospectively amend his initial appointment as 3 years. This action was challenged in the case Common Cause vs Union of India.

The petitioners contend that the extension given to Mishra is a blatant violation of the directions of the Supreme Court.

Case Title: Dr Jaya Thakur v UOI & Ors & connected pleas

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