A three-judge Bench of the Supreme Court holds that the third extension granted by the Union government to Enforcement Directorate director Sanjay Kumar Mishra is illegal.
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ON Tuesday, the Supreme Court held that the extensions given to Sanjay Kumar Mishra as director of the Enforcement Directorate (ED) after the court had issued a mandamus in the matter are illegal.
Mishra has been permitted to hold office till July 31. His tenure was previously scheduled to expire on November 17.
The Bench comprising Justices B.R. Gavai, Vikram Nath and Sanjay Karol, however, rejected the challenge to The Central Vigilance Committee (Amendment) Act, 2021 and The Delhi Special Police Establishment (Amendment) Act, 2021.
The decision of the Bench implies that the directors of the ED and the Central Bureau of Investigation (CBI) will have a fixed tenure of two years as prescribed in the relevant statutes.
However, at the discretion of the appointing authority, their tenures can be extended by one year at a time provided the annual extensions do not exceed a sum of five years in total from the date of the initial appointment.
In September 2021, the Supreme Court had refused to quash the Union government’s Order extending the tenure of Mishra with 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 two years.
The court had, however, clarified that Mishra would not be given any further extension beyond November 17, 2021, upon completion of three years of his tenure.
The court had issued a mandamus which specifically directed that Mishra should not be granted any further extension.
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, dealing with the appointment of the heads of the ED and the CBI, respectively.
Section 25(d) of the CVC Act, that deals with the appointment of officers of the ED, was amended by the Union government to allow one-year extensions to the tenure of an ED director.
The amendment also states that no extension of tenure can be granted after the completion of a five-year term by the director of the ED.
On Tuesday, while dictating the Order, Justice Gavai noted that there is limited scope of judicial review with respect to the legislative action in this case.
According to Justice Gavai, judicial review has examined the amendments on three grounds.
The Bench held that, firstly, the legislature was competent to legislate on the subject; secondly, the extension did not violate any fundamental rights under the Constitution; and thirdly, such legislative action is not manifestly arbitrary as long as a committee consisting of high officials finds that the extension should be granted in public interest and with reasons in writing.
It was further observed by the Bench that although the legislature is competent to take away the foundation on which the September 2021 judgment was delivered by the Supreme Court, it is not competent to annul the specific mandamus given to a particular party, which in this case is Sanjay Kumar Mishra.
Thus, the two Orders, dated November 17, 2021 and November 17, 2022, that allowed extensions of tenure of Mishra by one year each, were held to be invalid.
Taking into consideration the concern of the Union government that extension of Mishra’s tenure is essential 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, the court permitted him to continue in office till July 31.
FATF is an independent international body whose secretariat is located at the Organisation for Economic Cooperation and Development headquarters.
On May 4, the Union government had justified Mishra’s extension on the ground that Mishra was considered the only competent authority having the expertise to deal with the FATF on the performance of the country in certain areas.
To this contention of Mehta, Justice Gavai had raised concern 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 had asked Mehta.
