‘Indispensable’ ED director S.K. Mishra’s long tenure comes to an end as Union government names interim replacement

Mishra had been granted an extension of tenure by a Supreme Court Bench comprising Justices B.R. Gavai, Vikram Nath and Sanjay Karol on July 27 “in the larger public interest” after the government pleaded Mishra’s indispensability repeatedly.

ON Friday, the Union government ended the long tenure of Sanjay Kumar Mishra as the director of Enforcement Directorate (ED).

Mishra has been replaced by Rahul Navin, special director of the ED. As per the Order, Navin will function as the in-charge director of ED till appointment of a regular director or until further orders.

An Order of the Ministry of Finance made an announcement to this effect late in the evening.

Mishra, a 1984 batch Indian Revenue Service (IRS) officer, oversaw a long and controversial tenure at the top of the ED.

As per data shared by the Union government in the Parliament in July 24, 2022, only 23 people had been convicted in 5,422 cases registered under the Prevention of Money Laundering Act, 2002 17 years after it came into force

This conviction rate of less than 0.5 percent is abysmal, especially when compared to the typical Indian conviction rate of above 50 percent.

During Mishra’s tenure, the ED has also been accused of acting as a tool in the hands of the Union government to target and harass those in opposition to the ruling party’s agenda.

These rumours are encouraged by a long and consistent history of action of the ED against those opposed to the government, whether at the political or civil society level.

In fact, many in the government tout the ED’s supposed bias towards the government with pride.

Controversy over extensions

Mishra’s tenure at the top of the ED had been under the scanner ever since November 2020, when a case was filed against a Union government Order that extended his tenure with a retrospective effect, making it a three-year tenure against the initial two years, even though Mishra had attained superannuation in the interregnum, that is, before the expiry of the two years.

In September 2021, the Supreme Court refused to quash the Order. However, it issued a mandamus prohibiting extensions to Mishra’s tenure beyond November 17, 2021, when he was to complete three years of his tenure.

On November 15, 2021, the Union government introduced amendments to the Central Vigilance Commission Act, 2003 (CVC Act) and the Delhi Special Police Establishment Act, 1946 that deal with the appointment of the heads of ED and Central Bureau of Investigation. 

The amendment provided that the period of office of the director of ED could be extended by up to one year at a time, with no further extension after the completion of a five-year term.

On July 11 this year, a Supreme Court Bench comprising Justices B.R. Gavai, Vikram Nath and Sanjay Karol held that the extensions given to Mishra as director of the ED, after the court had issued a mandamus in the matter, are illegal.

However, the Union government had been pleading that Mishra was indispensable for the peer review process of the Financial Action Task Force (FATF) as well as to facilitate a smooth transition at such an important office.

FATF is an independent international body whose secretariat is located at the Organisation for Economic Cooperation and Development headquarters.

In a hearing on May 4 this year, Justice Gavai raised concerns over the argument about Mishra’s indispensability, and enquired whether there is no other competent person in the organisation and whether anyone could be indispensable.

If [Mishra] completed five years in November 2022, what would have happened? Would you have come up with a new amendment that increased the tenure limit from five years to six years?” Justice Gavai asked the Union government’s counsel.

Justice Gavai noted that the country went on despite the assassination of a sitting Prime Minister in the past.

However, the July 11 judgment took the arguments of indispensability under consideration and permitted Mishra to continue in office till July 31. His tenure was previously scheduled to expire on November 17.

On 27 July, the Supreme Court extended Mishra’s tenure till September 15 after the government made another application to extend his tenure till October 15, again citing the same reasons of indispensability.

The Bench of Justices B.R. Gavai, Vikram Nath and Sanjay Karol allowed the extension in “the larger public interest”.