SC cancels ED chief Sanjay Mishra’s 3rd extension, says it was illegal

NEW DELHI: The Supreme Court on Tuesday quashed the Union government’s decision to grant a third extension of tenure to Enforcement Directorate (ED) chief Sanjay Kumar Mishra and termed the mandate “illegal”, even as it affirmed the 2021 amendments in the pertinent laws to extend the tenure of the directors of Central Bureau of Investigation (CBI) and ED up to a maximum of five years.

Mishra can continue only till July 31 to enable the Centre to make alternative arrangements or make a fresh appointment, the court said.

A bench headed by justice BR Gavai held that Mishra could not have been granted the extension beyond November 2022 in view of a previous order of the Supreme Court in 2021, restraining yet another extension to Mishra.

The bench, which also included justices Vikram Nath and Sanjay Karol, said that Mishra can continue till July 31, following which a new director will have to assume the office. Mishra, who was granted a third extension in November last year, was otherwise set to demit office in November 2023.

Reading out the operative part of the judgment, justice Gavai said that while the 2021 amendments to the Central Vigilance Commission (CVC) Act and the Delhi Special Police Establishment (DSPE) Act are held to be valid legislations, Mishra cannot be allowed to continue since there was already a mandamus by the court against continuing his tenure beyond November 2022.

“We have held that though the legislature is competent to take away the basis of a judgment, it cannot annul a mandamus issued between the parties. In Common Cause (Vs Union of India case of 2021), there was a specific mandamus, and it was directed that there should be no further extension. Thus, the extension after verdict was invalid in law,” said the judge.

On the amendments in CVC Act and DSPE Act, the court held that they cannot be interfered with. “We have held that the scope of judicial review under legislative action is limited. It can be done when it affects fundamental rights or is manifestly arbitrary. We have held that there is no manifest arbitrariness nor is there a violation of any fundamental right. Further, extensions can be granted by the high-level committees in public interest and with reasons in writing,” it said.

The continuation order of Mishra was challenged by a bundle of petitions, which banked on the September 2021 order of the top court. The petitioners included Congress leaders Randeep Singh Surjewala, Jaya Thakur, Trinamool Congress MP Mahua Moitra among others.

Defending its decision, the Centre earlier argued in the court that Mishra’s continuation at the helm of ED was essential from the point of view of an upcoming peer review by the Financial Action Task Force (FATF) that will grade India on its laws being compliant with the international protocols on tackling money laundering and financial terrorism.

During submissions opposing the petitions, the Centre represented by Solicitor General Tushar Mehta and additional solicitor general (ASG) SV Raju further told the bench that the 2021 order was passed despite the two-judge bench recognising the power available with the Centre to grant extensions.

The law officers stressed the point that the basis of the 2021 order has now been removed through the amendment to the Central Vigilance Commission (CVC) Act, passed last year, by which ED director can get an extension of one year each till a maximum of three years beyond the original two-year tenure.

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