Is no one else competent?, Supreme Court in ED Chief Tenure Extension Case

 

The Supreme Court on Wednesday questioned the Centre about the third extension of service granted to director of Enforcement Directorate (ED), Sanjay Kumar Mishra, and wondered if “one person can be so indispensable”.

“Is there no other person in the organisation who can do his job? Can one person be so indispensable?” a bench led by justice BR Gavai asked solicitor general (SG) Tushar Mehta who represented the Centre.

“According to you, there is no one else in ED who is competent? What will happen to the agency post 2023, when he does retire?” the bench, also comprising justices Vikram Nath and Sanjay Karol, said.

The top court is currently hearing a batch of petitions challenging the extensions granted to Mishra, despite a 2021 order that the Indian Revenue Service officer of 1984 batch should not get further extension beyond November 2021.

The bench’s barrage of questions on the matter came as SG Mehta said that the extension was necessitated to ensure continuity in leadership ahead of India’s peer review by global terror financing watchdog, the Financial Action Task Force, expected to be held this year.

Mishra was initially appointed as ED director for a two-year tenure ending November 2020. Before his tenure came to an end, he was granted a one-year extension that was challenged in the top court by an NGO, Common Cause.

By a judgment in September 2021, the court allowed the extension, noticing that the tenure was coming to an end in about two months. However, the judgment was clear that no further extension was to be granted to Mishra.

On November 15, 2021, the Centre brought amendments to the Central Vigilance Commission (CVC) Act and the Delhi Special Police Establishment Act governing the appointment of heads of ED and Central Bureau of Investigation. This allowed the government to extend the tenure of CBI and ED chiefs for a period of three years beyond their two-year tenure by granting extensions of one-year each. These amendments were challenged in a clutch of petitions before the Supreme Court, filed by Congress leaders Randeep Singh Surjewala, Jaya Thakur, and Trinamool Congress MP Mahua Moitra, among others.

 

Under the challenged amendment, Mishra got an extension from November 2021 to November 2022. Last November, his tenure was further extended by a notification till November 2023.

On Wednesday, SG Mehta submitted that it was not out of likeness for a particular individual but concerns over the performance of the country during the FATF review that required a person of Mishra’s experience with a “different level of skill” to remain at the helm.

“It was not love for one particular individual but the Prevention of Money Laundering Act (PMLA) has trans-border implications. India is due for peer review by FATF which happens once in 10 years. A person interacting with FATF is best suited to deal with them. Sometimes, continuity is needed when you are dealing with world bodies. What is paramount was the performance of our country (in the review). It is not our case that he (Mishra) is indispensable,” Mehta said.

 

The bench, however, said it was only concerned about the breach of its earlier order. “This court clearly held that if there has to be an extension granted, it must be for a short period. In the case of the respondent (Mishra) before this court, we clarified no further extension should be granted. You have to meet this argument,” it said.

Mehta argued that the decision to grant extension is not of the Union government but of the CVC which enjoys a high degree of independence in its functioning.

As Mehta’s arguments remained inconclusive, the court posted the matter for further hearing on Monday.

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 (With input from news agency language)
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