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Synopsis

The Supreme Court of India has allowed the Enforcement Directorate's Director SK Mishra to continue in office till September 15, 2023 while citing the reason of 'larger public interest' in light of the upcoming FATF review. 

"In ordinary circumstances, we would not have considered this application, but to allow smooth transition, we find that taking into consideration the larger public interest, the ED Director shall be allowed to continue till September 15, 2023. No further applications for extension of his tenure shall be entertained. SK Mishra shall cease to be the ED Director from midnight September 15, 2023", a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol ordered.

Notably, a miscellaneous application was filed seeking an extension of tenure till October 15, 2023 which was mentioned before Justice Gavai yesterday. Solicitor General Tushar Mehta had mentioned the plea before Justice BR Gavai yesterday who had acceded to the request and listed the same for hearing today at 3:30PM.

SG Mehta today submitted before the bench that as the FATF review was to commence in November, continuation of Director Mishra would help the country.

"This is not an annual exercise, that someone else can take over, no country was peer reviewed earlier..continuity will help the country..we are asking this is national interest..no one is indispensable, we are before this court in peculiar circumstances..", SG added.

Hearing this, Justice Gavai remarked, "Lets say for example, I am the CJI and I am unavailable due to something, will the Supreme Court crumble..".

Justice Gavai further questioned the SG if a picture was being painted that everybody else in the ED office is incompetent.

After the petitioners represented by Senior Advocate AM Singhvi and Advocate Prashant Bhushan made strong opposition to the instant application, SG Mehta sought to make a few clarifications.

"...it is not my case that one person is indispensable, a continuity is required for effective representation..the Director is not suited by your lordships on legal grounds.. and not any other grounds..a wrong message might be sent..this PMLA part is directly handled by FATF with the ED..I am not worried that the nation would go down, nation is strong, but we need this continuity to paint a strong picture..", SG said.

On July 11, the top court had ordered that Mishra's tenure would end on July 31st. When a submission was made against such order, the bench had told SG Mehta that ample time was granted to find a replacement.

While doing so, the court had upheld 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.

A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol had opined that as the legislature was 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. 

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.

On August 2, last year, 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.

It may be noted that a total of 8 petitions were 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.

Case Title: Dr Jaya Thakur vs. Union of India