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However, the Court has held that the extension granted to the present ED Director SK Mishra is INVALID as that was in contravention to a direction issued by the Supreme Court itself in 2021 that his tenure could not be extended any further.
The Supreme Court today held that the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act for extending the tenure of the CBI and ED Chiefs for a maximum period of 5 years including a 2-year fixed term that may be extended “in public interest” by a 3-year term are not manifestly arbitrary.
"The scope of judicial review is limited on legislative action and it can be done only when there is violation of fundamental rights, or there is some manifest arbitrariness. We hold that there is no manifest arbitrariness in the said amendment and the legislature can legislate. Extension can be granted by a committee comprising of high level officials who deem it fit", a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol has held today.
However, the bench has opined that as the legislature is not competent to take away a mandamus issued by Court, the Centre had no right to not abide by its directions issued in September 2021, in Common Cause (A Registered Society) v. Union of India and others wherein it had expressly barred any further extension of the then ED Director Mishra's tenure.
Holding the extension to be invalid, the bench has ordered that Mishra's tenure would end on July 11.
In May this year, on the last day of arguments, the Centre had defended the third extension of service granted to Enforcement Directorate chief Sanjay Kumar Mishra saying that it was done after a peer review was conducted by the Financial Action Task Force (FATF) this year.
"This officer is not some DGP of any state but an officer representing the country in a United Nation like body and is in the midst of something. This court must not interfere with his tenure and from November onwards, he will not be there," Solicitor General Tushar Mehta had argued.
A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol had asked the law officer if the serving ED director was indispensable. To this, SG had replied, "Leadership matters. Appointment of ED Director is a very rigorous process and a person is selected from a common pool of officers from IAS, IPS, IRS or others and he is to be in the rank of additional chief secretary".
The top court had then reserved its verdict on the plea's.
The pleas which have been filed by a number of persons including political leaders from the opposition have also challenged the amendment carried out in law extending the maximum tenure of ED director to five years.
On August 2nd, 2022, the Supreme Court had issued notice on a batch of petitions challenging the Central Government's order extending the tenure of Enforcement Directorate Director, Sanjay Kumar Mishra.
A bench of then Chief Justice of India NV Ramana, Justice Krishna Murari, and Justice Hima Kohli had issued notice to the Central Government and listed the matter for hearing after 10 days.
It may be noted that there are 8 petitions filed by several petitioners including Congress leader Dr Jaya Thakur, Saket Gokhale, Congress leader Randeep Singh Surjewala, Krishan Chander Singh, Trinamool Congress MP Mahua Moitra, Vineet Narain, and Advocate Manohar Lal Sharma in this regard.
In November 2021, the Centre had brought in ordinances to extend the tenures of the Chiefs of Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) for up to 5 years.
The government amended the Fundamental Rules, 1922 to bring them in consonance with Central Vigilance Commission Act and the Delhi Special Police Establishment Act.
Case Title: Mahua Moitra vs. Union of India and Ors.
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