The Supreme Court on Tuesday dubbed the extension of Enforcement Directorate (ED) Director Sanjay Kumar Mishra as "illegal" for violating the mandate of the top court's judgment in 2021. The court, however, allowed him to continue in the post till July 31 taking into consideration the concerns expressed by the Union government.
His term as Director was set to end on November 18, 2018, 2023. Mishra, who was working as principal special director in the ED was appointed Director for a period of two years in November, 2018. A year later in November 2020, the President approved an order which modified his period of appointment from two years to three years, which was challenged by the NGO Common Cause. In May 2020, he had reached the retirement age of 60.
In September 2021, the SC upheld the Union Government's decision to modify the terms of appointment but denied further extensions. This was bypassed in November with the help of two ordinances, which allowed extension of tenure of directors of the CBI and ED by one year at a time till the completion of five years from the period of initial appointment. Mishra's tenure was extended by one year each in 2021 and 2022.
"Challenge to CVC Act and Delhi Special Police Establishment Act is dismissed to that extent. Extension granted to Sanjay Kumar Mishra after Supreme Court verdict is illegal. However, he is permitted to hold office till July 31, 2023," the Court ordered.
The bench held that the extension granted to Mishra was contrary to the 2021 judgment rendered by a division bench of the Supreme Court in this regard.
In March this year, senior advocate KV Viswanathan, the amicus curiae in the petitions challenging the extension of the tenure of Director of ED Mishra, told the Supreme Court that the extension was illegal.
Viswanathan cited the apex court's decisions in Vineet Narain & others vs. Union of India and Common Cause vs. Union of India to support his contention.
He had submitted before a bench of Justices BR Gavai and Aravind Kumar that the issue was not about the incumbent Director at all, rather it was about the principle.
The amicus had further contended that that extension is illegal not just because of the direction in Common Cause judgment that Mishra should not be given further extension beyond November 2021, but due to specific observation made in the judgment that extension should be granted only in exceptional circumstances.
The top court was hearing a batch of petitions challenging the extension of tenure of ED Director and the 2021 amendment to the Central Vigilance Commission Act 2003, which enables Centre to extend the tenure of the ED Director.
Earlier, in a written response, the Central government has told the Supreme Court that the PIL challenging the extension of tenure of ED chief Mishra has been filed with the intention of protecting Congress leaders who are facing money laundering charges.
In a counter-affidavit, the Centre said the PIL is clearly motivated and is admittedly intended to scuttle the legitimate statutory investigation being carried out by the ED against certain politically exposed persons. "The real motive of the petition is to question the investigation being carried out against the president and certain office-bearers of Indian National Congress...," it claimed.
In the first reaction to the Supreme Court’s order terming as “illegal” the third extension given to Enforcement Directorate (ED) Sanjay Kumar Mishra, Union Home Minister Amit Shah took a dig at the opposition leaders saying those who are rejoicing are delusional.
In a tweet, Shah said: “Those rejoicing over the SC decision on the ED case are delusional for various reasons. The amendments to the CVC Act, which were duly passed by the Parliament, have been upheld. Powers of the ED to strike at those who are corrupt and on the wrong side of the law remain the same.”