New Delhi: The Supreme Court Thursday partially accepted the Union government’s plea to modify its 11 July direction, which allowed incumbent chief of the Enforcement Directorate (ED) S.K. Mishra to remain on the post till the end of the month, and permitted him to continue in office till 15 September.
The three-judge bench led by Justice B.R. Gavai clarified that this permission — despite it holding that Mishra’s earlier extensions as ED director were invalid — was in public interest. However, the bench declined to let Mishra stay in office till 15 October, as requested by the Centre.
In ordinary circumstances, the court would not have permitted him to continue beyond 31 July, the bench told Solicitor General Tushar Mehta when he urged the judges to allow Mishra to hold the post for some more time.
“Having held his extension as illegal, we had permitted him to continue till 31 July in order to ensure smooth transition,” the bench noted in its order.
It also said that “no further application would be entertained for grant of extension to Mishra…We further clarify that he shall cease to be the director of ED with effect from the midnight of 15-16 September 2023”.
The court’s order came on an application filed by the central government Wednesday, requesting for a modification of the 11 July order in which the Gavai-led bench had declared two extensions given to Mishra as ED director invalid.
Appointed in November 2018, Mishra’s two-year term as ED director expired in November 2020. He was given the first extension in November 2021 and the second in November 2022.
While holding Mishra’s extension as invalid on 11 July, the court had at the same time, however, upheld the constitutional validity of amendments made to the Central Vigilance Commission Act 2003, the Delhi Special Police Establishment Act 1946 and the Fundamental Rules 2021, enabling the tenure extension of the ED director.
The government asked for Mishra’s extension on the ground that the Financial Action Task Force’s (FATF’s) review of India’s money-laundering probe operations is ongoing and his continuation is necessary considering he has held the director’s post for long and will be able to coordinate better with the inter-governmental body.
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‘Can’t function without one person?’
At the outset, the Gavai-led bench — which included justices Vikram Nath and Sanjay Karol — remarked about the impression the application is likely to generate. Justice Gavai asked Mehta if the government was giving a picture that its entire department is “incompetent” or that “it cannot function without one person”.
“Tomorrow if I am the chief justice of India and due to some unforeseen circumstances not able to be in office, will the institution (Supreme Court) collapse,” Justice Gavai asked.
Mehta argued that he was not projecting any one individual as indispensable and reiterated the requirement to have Mishra only due to the FATF review.
“This is not an annual exercise that someone can take over. This was last done in 2010 and was scheduled to be done in 2019, but couldn’t happen. The continuity (of Mishra staying in office) would help the country,” the solicitor told the court.
Additional Solicitor General (ASG) S.V. Raju, also appearing for the government, submitted that the country’s credit rating is dependent on the outcome of the FATF review and that money laundering and terror financing are the review’s most relevant aspects. Since the two offences are dealt with by the ED, it is necessary to let Mishra continue for the period mentioned in the Centre’s application.
The ASG also claimed that there are countries trying to see India fall in the “grey list”. For now, India is in the compliant list of FATF. “It is essentially for the purpose of continuity at present so that everything can be coordinated smoothly,” Raju told the bench.
After taking into account the government’s arguments and the opposition mounted by those who had challenged Mishra’s extension in the earlier two rounds of litigation, the bench finally said: “We find that in ordinary circumstances such an application would not have been entertained. But taking into consideration larger public interest, we are inclined to permit him to continue for some more period.”