The Supreme Court on Tuesday, 11 July, ruled that the extension granted to the Enforcement Directorate (ED) Director Sanjay Kumar Mishra is illegal since it violated the top court's 2021 judgment in the Common Cause case.
In that ruling, the top court had held that Mishra cannot be given an extension beyond November 2021.
"Although the basis of a judgment can be taken away, the legislature cannot annul the specific mandamus that barred further extension...That would amount to sitting in appeal over judicial act", the bench said.
The court, however, has allowed him to continue till 31 July.
The apex court has been hearing pleas challenging the amended law that allowed the extension of up to five years for the director of the Enforcement Directorate (ED).
Yes, But: In its judgment, the Court, acknowledging the limited scope of judicial review regarding legislation and considering the appointments of these officers being made by a high-level committee, upheld the amendments to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act.
These amendments empower the Center to extend the tenure of the heads of ED and CBI for a maximum of 5 years. The Court expressed its opinion that there exist adequate safeguards in place. It stated that extensions can be granted to senior officials in the interest of the public, accompanied by written reasons.
In a significant development on 27 February this year, the amicus curiae (the lawyer assisting the court in deciding the case) had called the extension ‘illegal.’
“The extensions are illegal and contrary to the line of judgments. It is not about the incumbent at all but the principle behind such extensions,” then Senior Advocate KV Vishwanathan had pointed out to a bench of Justices Justices BR Gavai and Aravind Kumar, according to LiveLaw.
The ED Chief’s Saga Of Appointment & Extensions: An Overview
- Appointed On 19 November 2018 for a term of two years till November 2020
- First Extension granted through a President order on 13 November 2020 for another year till November 2021
- Second Extension: from 17 November 2021 to 18 November 2022
- Third Extension: 18 November 2022 to 18 November 2023
While the first extension was granted through a president’s order which retrospectively altered Mishra’s two-year term to three years, the second and third tenures were granted through ordinances which later took the form of amendments.
The Controversy & The Case
Critics of the ruling party allege that since the Modi government first assumed power in 2014, central investigating agencies like the Enforcement Directorate and the Central Bureau of Investigation (CBI) have been used to target opposition leaders and silence dissenting voices.
“Modi Govt uses ED-CBI as henchmen to usurp power and destabilise elected governments. Raids by ED, CBI on the opposition leaders has become a norm. Now, these henchmen are being empowered and rewarded with 5 years tenure, so that malicious prosecution is used to silence dissenting voices, "Congress leader Randeep Surjewala had said.
Surjewala, in fact, became one of the petitioners who took the matter of Mishra’s repeated extensions to court.
Besides him, advocate Manohar Lal Sharma, Congress leader Jaya Thakur, TMC leaders Mahua Moitra and Saket Gokhale, in separate petitions challenged the Centre’s decision to grant a fresh extension to Mishra.
"The impugned ordinances allow the Central Government to effectively control an incumbent ED Director or CBI Director by wielding the power to extend the tenures of these Directors in the public interest," Moitra’s plea said.
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