“The impugned orders dated 17th November 2021 and 17th November 2022 granting extensions to the tenure of the respondent No. 2 Sanjay Kumar Mishra for a period of one year each are held to be illegal,” the bench said.
A three-member bench headed by Justice BR Gavai held that the two extensions granted to Mishra “are not valid in law”.
However, taking into consideration the “concern expressed” by the Centre regarding India’s “peer review” by the Financial Action Task Force (FATF), the Supreme Court permitted Mishra to continue till July 31.
The FATF is an intergovernmental organisation that works to combat money laundering.
After pronouncing the verdict, speaking for the bench, Justice Gavai orally told solicitor general Tushar Mehta that “15 days should be sufficient for you (Centre) to appoint a new (ED) director”. Actions in Breach of Mandamus
The judgment reads: “We find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit” Mishra to remain in office till July 31.
The Supreme Court was hearing petitions challenging the ED director’s extensions.Mishra was first appointed ED director from November 19, 2018, for a two-year term. That term was changed retrospectively to three years on November 13, 2020. He was given further one-year extensions in 2021 and 2022 and his term was to have ended November 18 this year.
Notably, the Supreme Court upheld the amendments made to the Central Vigilance Commission (CVC) Act and Delhi Special Police Establishment Act by the Centre extending the tenure of Central Bureau of Investigation (CBI) and ED directors to five years.
The Centre had promulgated two ordinances in November 2021, later ratified by Parliament, giving it the power to extend the tenures of ED and CBI directors by up to five years.
With regard to the extensions granted to Mishra, the bench held that a mandamus issued by the SC on September 8, 2021, directing the Centre to not grant any further extension to Mishra was “binding” on the Centre.
The bench ruled that the Centre “could not have issued” extensions – on November 17, 2021, and November 17, 2022 – to Mishra “in breach of the mandamus issued” by the top court.
The court found little substance in the stance of the Centre that the “foundation” of the said judgment was obviated by the Centre promulgating changes to the CVC Act. Although Parliament can “nullify” the court’s judgement through a legislative act, even retrospectively, in this case it could not have been violated by the Centre because the SC had issued a specific mandamus against Mishra.
“It has been held that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution,” the court said. “It has been held that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. This court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise.”
Indictment of govt: Cong
The Congress party called the Supreme Court order “an indictment of the Modi government”. AICC general secretary Randeep Surjewala, who was a petitioner in the case, tweeted, “This is a victory of justice and vindication of our stand on brazen misuse and compromise of #ED for political vendetta as also blatant pursuit of Modi Govt’s desperate and obvious agenda.”
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