Supreme Court Questions Centre Over Probe Agency Chief’s Term Extension

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“Can one person be so indispensable?” the Supreme Court asked the government today as it questioned it about the third extension of service given to ED Director Sanjay Kumar Mishra despite its express direction that no further extension shall be granted to him.
The top court said it had categorically held in its 2021 judgement that any extension of tenure granted to officers holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period and clearly mentioned that no further extension will be given to Mishra.

“Is there is no other person in the organisation who can do his job? Can one person be so indispensable? “According to you, there is no one else in ED who is competent? What will happen post to the agency post-2023, when he does retire?” a bench of Justices BR Gavai, Vikram Nath and Sanjay Karol asked Solicitor General Tushar Mehta, who represented the Centre.

The barrage of questions from the bench came after the solicitor general said Mr Mishra’s extension was necessitated because of administrative reasons and was vital for India’s evaluation by the Financial Action Task Force (FATF).

“The next peer review of India’s legislation on money laundering is to take place in 2023 and, with a view to ensuring that India’s rating does not go down, continuity of the leadership in the Enforcement Directorate is crucial,” Mr Mehta said, adding the person already interacting with the task force is best suited to deal with it and the skills for that is acquired after working in that position for several years.

The solicitor general said though no one is indispensable, in such cases continuity is required.

“We are not dealing with individuals, but with the performance of an entire country,” he contended.

At the start of the arguments, the solicitor general questioned the locus standi of some of the PIL petitioners who have challenged the amended law that allowed extension to the ED boss.

“At the outset, I have serious objection with respect to petitions filed by political persons whose party’s senior functionaries are under investigation by Enforcement Directorate. They have no locus in the matter. Office bearers of the Congress party….

“Their leaders are facing serious ED investigations and it is not just political investigation as alleged. In one of the cases, we had to bring a cash counting machine because there was so much cash recovered from them…Will this court entertain petitions at the behest of persons who are trying to pressurise the agency ED,” Mr Mehta said.

The top court, however, refused to agree with Mehta’s submission.

“Merely because a person is a member of a political party, can that be a ground not to permit him a petition? Can he be stalled from approaching the court?” the bench asked.

Mehta stood his ground, saying a public interest litigation has to be limited to public interest and not private interest.

The hearing in the matter remained inconclusive and will continue on May 8.

The top court had earlier disagreed with the Centre’s contention that petitions challenging the amended law allowing extension of tenure of the director of the Enforcement Directorate up to five years should not be entertained as they have been filed by political entities facing serious money laundering charges.

It had said even if the petitioners are facing cases, they have the right to approach the judiciary for redress of their grievances.

The top court had on December 12 last sought the response from the Centre and others to a plea challenging the third extension granted to ED chief Mishra.

It had issued notices to the Union of India, the Central Vigilance Commission and the ED director on a plea filed by Jaya Thakur which accused the central government of destroying the basic structure of democracy by misusing the enforcement agencies against its political opponents.

A batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Thakur, and TMC’s Mahua Moitra and Saket Gokhale, had come up for hearing before the bench.

According to the latest extension notification issued by the government, the 1984 batch IRS officer will be in office till November 18, 2023.

Mr Mishra, 62, was first appointed the director of the ED for two years on November 19, 2018. Later, by an order dated November 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years.

The government promulgated an ordinance last year under which the tenure of the ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

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