SC says extension to ED Director Mishra illegal, permits him to continue till July 31

A law was passed by Parliament in this regard allowing extensions to the tenure of the ED Director for one year at a time, subject to a maximum of 5 years.

New Delhi: 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. The term of ED director was set to end in November 2023.

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“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 K.V. 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 B.R. 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. 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 Central 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 Central 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.

A law was passed by Parliament in this regard allowing extensions to the tenure of the ED Director for one year at a time, subject to a maximum of 5 years.