Supreme Court Extends Tenure of Incumbent ED Director Sanjay Mishra till September
Challenge to Tenure Extension of CBI and ED DirectorsJudges: B.R. Gavai J, Vikram Nath J, Sanjay Karol J
Today, a special Bench of the Supreme Court comprising Justices B.R. Gavai, Sanjay Karol and Vikram Nath heard and granted the Union’s request to extend the tenure of the incumbent Enforcement Directorate (ED) Director, Sanjay Kumar Mishra. The Bench held that this application would not be entertained under ordinary circumstances but that it was permitting this extension in the public interest.
Earlier this month, the same Bench delivered a Judgement in the challenge to the tenure extensions of CBI/ED Directors and held that the repeated extensions of Mishra’s tenure were illegal. These petitions had challenged the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021 which permitted one-year extensions —-up to a total of three times—-to the tenure of Directors of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED).
Though the Court found Mishra’s repeated tenure extensions illegal, it upheld Parliament’s power to make and amend laws governing tenure extensions.
Background
Mr. Sanjay Kumar Mishra, the director of the ED was meant to retire on November 17th, 2021. However, three days before his retirement, on November 14th, 2021, the President of India issued the Delhi Special Police Establishment (Amendment) Ordinance, 2021, and the Central Vigilance Commission (Amendment) Ordinance, 2021. These Ordinances permit up to three one-year extensions of the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).
Previously, in Common Cause v Union of India (2021) the Supreme Court heard a challenge to the extension of Mr. Mishra’s tenure as ED Director after his initial two-year tenure expired. The SC held that extensions could be granted in ‘rare and exceptional cases’ for a short period of time. However, they made it clear that no further extension was to be granted to Mr. Mishra.
On November 18th, 2021, Mahua Moitra, a Member of Parliament from the All India Trinamool Congress (TMC), and Congress Leader Randeep Singh Surjewala filed petitions at the SC challenging the Ordinances. They argued that the Ordinances overrode and were contrary to the Court’s decision in Common Cause and allowed the Union to further extend Mr. Mishra’s tenure.
On December 14th, 2021, Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021. These Amendments confirmed the provisions for tenure extension that were first passed through the Ordinances.
On July 13th, 2022, Congress leader Jaya Thakur asked the Court to list the challenges to the Amendments. On March 23rd, 2023, a 3-Judge Bench led by Justice B.R. Gavai started hearing the case.
On July 11th, 2023, the Supreme Court upheld Amendments allowing the Union to extend tenures of CBI and ED Directors. However, he stated that the extension granted to Mr. S.K Mishra was illegal.
Union Government: Extension is Essential for the Upcoming FATF Review
Solicitor General Tushar Mehta appearing for the Union government opened the day’s arguments by stating that the extension was essential due to a ‘peculiar circumstance’ —-the Financial Action Task Force (FATF) review, that is scheduled to happen this October. FATF is the global money laundering and terrorist financing watchdog, and periodically reviews and scores each country for their internal systems for preventing criminal abuse of the financial system.
Mehta informed the Bench that the task force was visiting India for an appraisal assessment on October 3, 2023. Interestingly, Mehta made the same argument on May 3, 2023, when the Court was hearing the initial challenge. The FATF review has been pending since Covid 19. The ranking given by the task force after its assessment greatly influences India’s credit opportunities internationally and is therefore crucial.
An important aspect of this assessment, the Solicitor said, was a review of finance sources for crimes such as money laundering and terrorism. The Enforcement Directorate was an important contributor to the dialogue on these fronts, and the Director being the head of the institution was key in these discussions. Since Mishra was overlooking many aspects of the review for years, his continuity on the seat was crucial to ensure that India’s standing is not harmed.
Justice Gavai appeared unconvinced. He asked if the Solicitor was giving the impression that there is no other competent person in the whole institution who could take on the task. He also pointed out that the Court’s July 11th Judgement gave the Union time till July 31st to find a replacement and ensure a smooth transition.
The Solicitor responded that while no person was ‘indispensable’, the continued leadership would benefit India’s chances to remain on the list of ‘compliant countries’. Mehta also used the opportunity to remind the court that Pakistan was currently on the ‘grey list’.
Petitioners: The Union’s Application is a ‘Gross Abuse of the Process of the Court.’
Senior Advocates A.M. Singhvi, Anoop George Chaudhari and Advocate Prasanth Bhushan opposed the Union’s request to extend Mishra’s tenure further.
Singhvi stated that it was absurd for the Union to claim that the entire country’s rank depended on one man. Moreover, the FATF ranking was based on a list of 40 indicators of which money laundering was one. Also, the main person in charge of these discussions was the Secretary of Revenue and not the Director of the ED.
Chaudhari added that many other institutions such as the National Intelligence Agency, the Ministry of Economic Affairs, and the Central Beauro of Investigation contributed to the discussion on money laundering. The ED was just one of them and therefore, it could not be said that India’s ranking depended on the ED’s Director alone.
Further, he pointed out that the Court had considered this aspect before it delivered the judgement on July 11, 2023. Therefore, extending Mishra’s tenure now would ‘send the wrong message’ to the public.
Bhushan went on to say that the Union’s application was essentially a review petition in the form of a miscellaneous application. Further, he pointed out that the Judgement came out weeks ago but the Union waited till yesterday ( the end of the month) to file an application for an extension of Mishra’s tenure beyond July 31, 2023. All these actions were abuses of the Court processes.
Order of the Bench
The Bench exited the courtroom for a brief deliberation on the issue. They returned and held that under any other circumstance, the Union’s application would be rejected. However, given the public interest in the upcoming FATF assessment, Mishra’s tenure could be extended till September 15, 2023.
They went on to clarify that Mishra would seize to be the ED’s Director at midnight on September 15 and that no further applications for his extensions would be entertained.
