ED director SK Mishra’s tenure extended due to FATF review, won’t continue beyond Nov: Centre to SC

New Delhi, May 8

Defending the third extension given to Enforcement Directorate chief Sanjay Kumar Mishra, the Centre on Monday told the Supreme Court that it was due to the Financial Action Task Force (FATF) peer review this year and he will not continue in office beyond November.

“This officer is not some DGP of any state but an officer representing the country in a United Nation-like body and is in the midst of something. This court must not interfere with his tenure and from November onwards, he will not be there,” Solicitor General Tushar Mehta told a three-judge Bench led by Justice BR Gavai.

Mishra was given extension as FATF peer review is taking place and there were some guidelines which needed to be followed, Mehta said.

FATF is a global anti-money laundering and terrorist financing watchdog that sets international standards aimed to prevent illegal activities, including terror financing.

The Bench, which also included Justice Vikram Nath and Justice Sanjay Karol, reserved its verdict on petitions challenging the third extension given to Mishra and the amendment carried out in law extending the maximum tenure of ED director to five years.

As the Bench asked if minus one person (Mishra), the ED will be ineffective, Mehta replied in the negative but said his leadership did matter.

“He (Mishra) has been overseeing some important investigations related to money laundering and his continuity was required in the interest of the nation. He is not indispensable. This man will not continue after November, 2023. Peer review was earlier scheduled to be held in 2019 but was postponed due to COVID pandemic and is happening in 2023.

“Complete evaluations of activities of the country in taking steps to curb money laundering, terror financing, etc., takes place for a period of 18 months. Every member country has to go through this process and India is being assessed in the fourth round of mutual evaluation,” the SG said.

He said the current mutual evaluation process has already begun, the technical compliance submission has been done on May 5, 2023, the effective annex submissions is scheduled on July 14, 2023, tentative onsite period will be November, 2023 and the plenary discussion will be scheduled in June 2024.

“It is not a case that he is not dispensable or if extension is given then some other person’s chances of getting to the top position is compromised. There is no second or third person here. Appointment of ED Director is a very rigorous process and a person is selected from a common pool of officers from IAS, IPS, IRS or others, and he is to be in the rank of Additional Chief Secretary”, he said.

The Bench asked why all these facts were not brought to the court’s notice when it pronounced its verdict in 2021 on the ED Director’s tenure.

The Department of Personnel & Training (DoPT) had on November 17 extended Mishra’s tenure as ED Director till November 18, 2023.

Mishra (62) is a 1984-batch Indian Revenue Service (IRS) officer of the Income Tax Department cadre. He was appointed Director of the ED for a period of two years on November 19, 2018. Subsequently, on November 13, 2020, the appointment letter was modified retrospectively by an order and his term of two years was replaced by three years.

In November 2021, the Centre promulgated an ordinance that said the tenure of directors of the ED and the CBI can be extended by up to three years after the mandated tenure of two years. The Centre had on November 17, 2021, extended the tenure of Mishra by a year till November 18, 2022, days after the Centre brought ordinances to allow ED and CBI directors to occupy the office up to five years.

The ordinance and the 2021 extension given to him were already under challenge before the top court.

The Supreme Court had on August 2 issued notice to the Centre on petitions challenging the law allowing extension of tenure to the Director of the ED up to five years, and the Centre’s decision to grant one-year extension to Mishra as its Director.

There are eight petitions challenging the extension given to Mishra, including those filed by Congress leaders Jaya Thakur and Randeep Singh Surjewala; TMC leaders Saket Gokhale and Mahua Moitra; and Krishna Chander Singh, Vineet Narain and ML Sharma.