SC Seeks Centre’s Response on Pleas Challenging ED Director’s Tenure Extension

The Supreme Court has sought the response of the Union government on a batch of petitions challenging the “piecemeal” tenure extensions given to current Enforcement Directorate director Sanjay Kumar Mishra.

A three-judge bench headed by Chief Justice N.V. Ramana on Tuesday, August 2, posted the matter for hearing after 10 days once the response is filed.

“We issue notice on all the petitions. List after 10 days,” the bench which also comprised Justices Krishna Murari and Hima Kohli said, according to Bar and Bench.

Among the eight petitioners were Congress party spokesperson Randeep Singh Surjewala, Trinamool Congress leader Mahua Moitra, social activist and general secretary of Madhya Pradesh Congress Mahila Committee Jaya Thakur. They urged the court to quash November 2021 government order which extended Mishra’s tenure by a year.

“Piecemeal extensions of tenure like this takes away the fixity of tenure, which is the hallmark of independence,” The Hindu quoted senior advocate Abhishek Manu Singhvi, appearing for the petitioners, as saying.

Mishra was first appointed as the ED director for a two-year term in November 2018. His term was to end in November 2020. In May 2020, he had also reached the retirement age of 60.

However, the government in an order on November 13, 2020 said Mishra’s tenure was extended by a year, stating that his 2018 tenure order had been modified retrospectively by the President of India to increase his term from two to three years.

The retrospective order was challenged in the apex court by Common Cause NGO. However, a bench of Justice L. Nageswara Rao and Justice B.R.Gavai upheld the government’s decision to extend Mishra’s tenure retrospectively and said no more extensions would be allowed. It also said the government was empowered to make retrospective changes but only in the “rarest of rare cases”.

However, the government in November last year, four days before Mishra’s term was to end gave him another extension up to November 2022. To facilitate this, the government then issued ordinances to amend Central Vigilance Commission (CVC) Act to empower itself to extend the tenures of the directors of ED and the Central Bureau of Investigation up to five years. The ordinances became law in December 2021.

The changes since have been criticised as a move to “further subvert the independence” of the ED and CBI.

On Tuesday, August 2, the petitioners told the top court that Mishra, who is going to finish his fourth year as ED director in November 2022, may get another extension.

Senior advocate Gopal Sankaranarayanan, who also appeared for the petitioners, said the selection committee to pick the ED director was completely drawn from the executive without any “external” authorities like the Chief Justice of India as in the case of the selection of the CBI director. He said this in response to a question from the bench about the selection process for ED director.

“The selection process gives complete unfettered discretion to the executive,” Singhvi said, according to Hindu.