SC agrees to examine govt petition on ED chief tenure

NEW DELHI: The Supreme Court on Thursday agreed to examine the Centre’s plea to modify its previous order that restrained the government from extending the tenure of Enforcement Directorate head Sanjay Kumar Mishra after November 2021.

A bench of justices BR Gavai and BV Nagarathna issued notice to NGO Common Cause, which was the petitioner in the earlier round of litigation when the court issued the prohibitory order.

Fixing the matter for November 7, the bench observed that it would consider on the next date the government’s arguments regarding the change in the legal regime which enabled them to grant yet another extension to the ED director. Solicitor general Tushar Mehta, representing the Centre, said that the application for modifying the September 8 order of the top court was justified on the ground that there is a change in the Central Vigilance Commission (CVC) Act. To this, the bench responded: “We had decided on the basis of the law which existed at that time. If there is a statutory change, the matter will be looked at from the perspective of the new law.” It added that the scope of the scrutiny will be different unless the validity of the amendments to the CVC Act is also challenged.

Mehta, at this point, informed the bench that there are a bunch of separate petitions which have also laid a challenge to the amendments to the CVC Act on the basis of the September 2021 order of the court.

The bench, however, replied: “Our orders won’t operate on the powers of the legislature to frame a law. Unless the legislation is found to be ultra vires or in violation of fundamental rights, courts can’t interfere. Also, malafide is not attributable to legislature.”

The court then proceeded to hear the NGO on the points of law as well as on the grounds raised by the Centre in seeking modification of the September order.

Mishra was granted his first one-year extension in 2020 when his tenure as the ED director was coming to an end in November that year. After the NGO challenged the government’s move calling it violation of the provisions of the CVC Act, the apex court in September 2021 directed that Mishra will not be given further extension after his term ends in November 2021. The court, at that time, chose not to interfere with the remainder of Mishra’s term. However, Mishra was later given another extension till

November 2022 through a November 2021 amendment in the CVC Act, which allowed up to three one-year extensions of the ED director’s tenure.

A similar amendment was also brought in the Delhi Special Police Establishment Act to permit up to three one-year extensions of the CBI director’s tenure too. In December, the amendments were formalised into Acts.

Soon, a raft of petitions was filed before the Supreme Court, challenging the amendments. The petitions were filed among others by Congress leaders Randeep Singh Surjewala and Jaya Thakur, and Trinamool Congress (TMC) leaders Mohua Moitra and Saket Gokhale.

In August, the court issued a notice to the Centre, which filed its counter affidavit the following month stating that restricting the tenure of director of ED or CBI would be counterproductive to India’s concerted action against corruption and money laundering.

Sanjay Kumar Mishra