SC holds extension of ED director Sanjay Kumar Mishra’s tenure illegal, rejects plea challenging amendments to CVC, DSPEA

New Delhi [India], July 11 (ANI): The Supreme Court on Tuesday held that the extension of the tenure of ED Director Sanjay Kumar Mishra was illegal and he would continue to serve in the post till July 31, 2023.

However, it rejected the plea to the extent of challenging the amendments to the Central Vigilance Commission Act (CVC) and the Delhi Special Police Establishment Act (DSPEA)
The court made it clear that it rejects the plea to the extent of challenging the amendments to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act.

A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol passed the order on various petitions challenging the extension of the tenure of ED Director Sanjay Kumar Mishra.

“The challenge to Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021 as well as to the fundamental (Amendment) Rules, 2021 is rejected and the writ petitions are dismissed to that extent,” the court said.

“The impugned orders dated November 17, 2021, and November 17, 2022, granting extensions to the tenure of respondent No 2- Sanjay Kumar Mishra for a period of one year each is held to be illegal. The writ petitions are partly allowed to that extent,” the court said.

The court said that the legislature is competent enough to make law but cannot annul the specific mandamus that barred further extension.

The top court said that it had specifically issued a mandamus that no further extension shall be granted to the second respondent Mishra. The Union of India and the respondent Mishra were both parties in that proceedings. “The mandamus issued to be parties was binding on them. We, therefore, find that respondent No.1 (UOI) could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this Court vide its judgment dated 8th September 2021,” the top court said.

Therefore, the court said that the extension order of SK Mishra is invalid in law. However taking into consideration of central government with regard to FATF review, the process of appointing the Director of Enforcement is likely to take some time, the court permitted him to continue till July 31.

Solicitor General Tushar Mehta, appearing for Centre, had apprised the Court that SK Mishra is not the director general of police but he represents the country internationally and hence parliament has taken a conscious call.

He also apprised the court that SK Mishra will retire from November onwards. Solicitor General Tushar Mehta had defended the government’s decision to extend the tenure of the ED Director and said that the money laundering offence has trans-border implications.

He had said that extension was for administrative reasons as it was vital for the country’s evaluation by the Financial Action Task Force (FATF).

The court was hearing petitions challenging the Centre decision dated November 17, 2022, whereby the government has extended the third tenure of director of Enforcement Directorate SK Mishra.

Among the petitioners were Jaya Thakur and others.

In the earlier hearing, Amicus Curiae KV Vishwanathan had raised an objection on the extension of the tenure of the director of the Enforcement Directorate and submitted before the Supreme Court that the Committee failed to consider the availability and suitability of other officers before taking a decision on extension of tenure of the director of Enforcement Directorate.

Amicus has said that the office order dated November 17, 2021, does not satisfy the touchstone of ‘public interest’ and hence it may be set aside.

On the other side, the Centre in its affidavit had defended its decision to extend the tenure of the Enforcement Directorate director and said that petition challenging it is motivated and urged the top court to dismiss the plea.

The Centre government submission came on an affidavit which was filed countering the submission of the petition challenging the extension of the ED director.

Centre had informed the SC that the petition is clearly motivated by an oblique personal interest rather than any public interest litigations.

The Centre had also said that the petition is a misuse of Article 32 of the Constitution, which is clearly being filed in a representative capacity for and on behalf of the President and the office bearers of the Indian National Congress, who are being investigated by ED and are otherwise fully competent to approach respective courts for appropriate statutory relief and remedy under the Code of Criminal Procedure.

Centre had said the petition has been filed for espousing the cause of her political masters when there is nothing barring the concerned persons who are under investigation from approaching the competent court for any appropriate relief. (ANI)