SC agrees to extend tenure of ED chief Sanjay Mishra till September 15

The Supreme Court on Thursday, July 27, agreed to extend, till September 15, the tenure of the present ED Director Sanjay Mishra, who was due to demit office on July 31 in accordance with its recent judgement. "In ordinary circumstances we would not have accepted such an application...taking into consideration larger public interest, we permit the ED Director to continue till September 15, 2023," a special bench of Justices B.R. Gavai, Vikram Nath, and Sanjay Karol ordered. However, the bench clarified that it will not entertain any further application by the Union government seeking extension of tenure of the present ED Director. It said that Mishra will cease to hold the post from the midnight of September 15/16, 2023.

 

At the outset of the hearing, the bench asked whether the ED does not have any other competent officer to deal with the FATF review. "Are you not giving a picture that your entire department is full of incompetent officers? You have only one officer? Is it not demoralising the entire force?" queried the special bench. Solicitor General Tushar Mehta, representing the Union government, repeatedly urged before the court that any change in leadership at the ED would adversely impact India's national interests in view of the ongoing FATF Review which is at a critical stage.

 

"Circumstances are unusual. From November 3, FATF will visit India. This is a peer review of the past 5 years. This isn't an annual exercise. Continuity will help the country," he said.

"It is not that one person is indispensable. It's just that continuity will help give a better presentation to the international body. We need continuity to put forth that before the international body," he added.

 

The FATF is an inter-governmental body which has developed its recommendations to prevent and combat money laundering and terror financing. Around 200 countries, including India, have committed to implement these standards. The FATF conducts peer reviews of all its member countries on a regular basis to assess levels of implementation of the FATF recommendations and provide an in-depth description and analysis of each country's system for preventing criminal abuse of the financial system.

 

On the other hand, senior advocate Abhishek Manu Singhvi opposed the application for extension, saying that the Union government is making an attempt to get a review of the judgment rendered by the apex court.

Senior advocate Anoop G. Chaudhari, representing original writ petitioners, argued that in relation to FAFT, the main authority is Union Revenue Secretary and the application filed by the Union government is "misconceived" and "deserves to be rejected".

 

Advocate Prashant Bhushan went on to say that the Union government's application is a "gross abuse of process of court" and a review application has been filed in guise of an application seeking extension.

 

In its order delivered in open court, the bench allowed the Union government’s request “in view of the larger public interest”, but granted an extension only till September 15, while the application moved by the Union government has requested extension up to October 15.

On Wednesday, the Supreme Court agreed to constitute a special bench to hear the Union government’s application on July 27 after Mehta sought an urgent listing of the matter.

 

In a judgement on July 11, the Supreme Court dubbed the extension of Mishra as "illegal" for violating the mandate of the top court's judgment in 2021. However, the top court had allowed him to continue in the post till July 31 taking into consideration the concerns expressed by the Union government with regard to the FATF review and taking into consideration that the process of fresh appointment would take some time.

 

The court had held that the extension granted to Mishra was contrary to an earlier 2021 judgment rendered by a division bench of the Supreme Court in this regard. Mishra was first appointed as ED Director for a two-year term in November 2018. His term expired in November 2020. In May 2020, he had reached the retirement age of 60. However, on November 13, 2020, the Union government issued an office order stating that the President had modified the 2018 order to the effect that a time of 'two years' was changed to a period of 'three years.' This was challenged before the Supreme Court by the NGO Common Cause.

 

The Supreme Court in a September 2021 verdict approved the modification, but ruled against granting more extensions to Mishra. After the court's decision in 2021, the Union government brought in an ordinance amending the Central Vigilance Commission (CVC) Act, giving itself the power to extend the tenure of the ED Director by up to five years, and the law in this regard was subsequently passed by the Parliament.

 

"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 had ordered on July 11.