'Illegal': SC sets aside extension to ED chief, asks govt to choose successor

Satya Prakash

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New Delhi, July 11

In a setback to the Centre, the Supreme Court today set aside the extension given to Sanjay Kumar Mishra as the Director of Enforcement Directorate (ED), terming it “illegal” and an attempt to annul its previous directions on the issue.

‘Entitled dynasts needn’t rejoice’

Home Minister Amit Shah said those rejoicing were delusional for many reasons. “It’s not important who the ED Director is because whoever assumes this role will take note of the rampant corruption of a cosy club of entitled dynasts,” said Shah.

The top court, however, allowed Mishra to continue on the post till July 31 in view of FATF review and to “ensure the transition to be smooth in the larger public interest”. It asked the Centre to appoint his successor in the meantime. Noting that it had specifically issued a mandamus that no further extension shall be granted to Mishra, a three-judge Bench led by Justice BR Gavai said the Centre and Mishra were both parties in the proceedings in the 2021 Common Cause case and the order issued in that case was binding on them.

“We, therefore, find that the respondent No.1 could not have issued orders dated November 17, 2021, and November 17, 2022, in breach of the mandamus issued by this court vide its judgment dated September 8, 2021, in Common Cause (case),” said the Bench, which also included Justices Vikram Nath and Sanjay Karol. The Bench, however, upheld the amendment made to the CVC Act, the DSPE Act and the relevant rules which allowed the Centre to extend the term of the directors of ED and CBI up to five years. Noting that the scope of judicial review under legislative action was limited, the Bench said a law could be set aside only for lack of legislative competence or when it affected fundamental rights, or was manifestly arbitrary.

The order came on petitions filed by Congress leaders Jaya Thakur and Randeep Singh Surjewala; TMC leaders Saket Gokhale and Mahua Moitra; and Krishna Chander Singh, Vineet Narain and Manoharlal Sharma challenging the third extension given to Mishra.

The Department of Personnel & Training (DoPT) had on November 17 extended Mishra’s tenure till November 18, 2023. Mishra (62) is a 1984-batch Indian Revenue Service (IRS) officer of the Income Tax Department cadre. He was appointed the ED Director for two years on November 19, 2018. On November 13, 2020, the appointment letter was modified retrospectively and his term of two years was replaced by three years.

In November 2021, the Centre promulgated an ordinance that said the tenure of ED and CBI directors could 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.