'Illegal and invalid': SC on extension granted to ED chief Sanjay K Mishra

The bench, however, rejected a challenge to validity of the CVC (Amendment) Act, 2021 & the Delhi Special Police Establishment (Amendment) Act, 2021.

The Supreme Court on Tuesday declared the two extensions of one year each granted to current Enforcement Directorate Chief Sanjay Kumar Mishra as illegal but allowed him to continue in the post till July 31, 2023, in order to ensure a smooth transition in the larger public interest.

A bench of Justices B R Gavai, Vikram Nath and Sanjay Karol, however, rejected a challenge to validity of the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021, allowing extension of heads of the Enforcement Directorate and the CBI respectively upto a cumulative period of five years.

The court held that Mishra was granted extensions on November 17, 2021 and November 17, 2022 for a period of one year each, in contravention of a mandamus issued in its previous judgement in the Common Cause case on September 8, 2021.

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"We, therefore, find that the Union government could not have issued orders in breach of the mandamus," the bench said.

The court allowed Mishra to continue in his post till July 31, 2023, also in view of concerns expressed by the Union government with regard to the FATF (Financial Action Task Force) review.

Justice Gavai authored the 103-page judgement on separate petitions filed by Congress leaders Jaya Thakur, and Randeep Singh Surjewala, TMC leaders Saket Gokhale, and Mahua Moitra and advocate M L Sharma, Krishna Chander Singh, and social activist Vineet Narain, and NGO Common Cause challenging the extension of tenure of the ED director.

The petitioners also questioned the validity of the amendments into the CVC (Amendment) Act, 2021 and the DSPE (Amendment) Act, 2021.

The bench noted in the Common Cause judgement that there was no proscription on the government to appoint a Director of Enforcement beyond a period of two years. This court has, however, clearly held that nullification of mandamus by an enactment would be an impermissible legislative exercise, it said.

The petitioners claimed that the amendments permitted the adoption of a ‘carrot and stick’ policy by the executive, and frustrated the very purpose of insulating the high posts from extraneous pressures.

The bench, however, said, "We are unable to accept the arguments that the Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures."

The bench said it is not at the sweet-will of the Government that the extensions can be granted to the incumbents in the office of the Director of CBI/Director of
Enforcement.

"It is only on the basis of the recommendations of the Committees which are constituted to recommend their appointment - and that too when it is found in public interest, and when the reasons are recorded in writing," the bench said.

The top court said any amendment to the law can be held to be unconstitutional only on the grounds of lack of competence, violation of fundamental rights and arbitrariness, which were absent in the instant case.

Then senior advocate K V Viswanathan, who subsequently got elevated as SC judge, acted as amicus curiae in the matter. He had contended that a provision which permits piecemeal extension of tenure of one year each subject to a maximum cumulative tenure of five years undermined the independence and integrity of the office.