2021 judgment on aspect of ED Director extension seems prima facie incorrect: Supreme Court

The Supreme Court on Monday reserved its judgment in a batch of petitions challenging the extension of the tenure of the current Director of the Enforcement Directorate (ED), Sanjay Kumar Mishra. [Dr Jaya Thakur v. Union of India and ors].A Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol, however, appeared to question the correctness of its 2021 judgment where it had, in effect, issued a mandamus preventing Mishra from having extensions beyond November 2021.Additional Solicitor General SV Raju at today's hearing submitted that an initial appointment was different from extensions, and that the 2021 order had only heard arguments on the former.Justice Gavai, who was part of the two-judge bench that passed the 2021 ruling, responded, "Prima facie I hold that it was not rightly decided. Question of extension was not there, as you are arguing. Therefore, mandamus on extensions does not arise. It is my prima facie view that reconsideration is needed, subject to my brothers agreeing. In which way we do not know.".Mishra was first appointed ED Director for a two-year term in November 2018. This term expired in November 2020. In May 2020, he had reached the retirement age of 60.However, on November 13, 2020, the Central government issued an office order stating that the President had modified the 2018 order to the effect that a time of 'two years' was changed to a period of 'three years.' This was challenged before the Supreme Court by the NGO Common Cause.The Supreme Court had in a September 2021 verdict approved the modification, but ruled against granting more extensions to Mishra.After the Court's decision in 2021, the Central government brought in an ordinance amending the Central Vigilance Commission (CVC) Act, giving itself the power to extend the tenure of the ED Director by up to five years.Parliament later passed a law in this regard allowing extensions to the tenure of the ED Director for one year at a time, subject to a maximum of 5 years..The Supreme Court had in the last hearing on Wednesday asked the Central government as to what norms or requirements of the Financial Action Task Force (FATF) require continuous terms for the ED Director.It had posed the question in the context of Solicitor General (SG) Tushar Mehta submitting that the Centre works in line with FATF regulations towards tackling money laundering.The SG had submitted that the top court had not issued a mandamus against Mishra in the strict sense..In an earlier hearing in March, the Bench had made it clear that it was not concerned with the political affiliations of the petitioners. This was after the Central government had earlier contended that the petitioners, leaders of the Congress and Trinamool Congress parties, have moved court to protect political leaders who are facing money laundering charges.Senior Advocate KV Viswanathan, Amicus Curiae in the case, had in February submitted that the extensions to Mishra's tenure were illegal..During today's hearing, the Bench reiterated that it was not concerned with the locus of the petitioners."Please do not repeat that argument. Do not convert this to a political platform. We have reservations on that. Merely because someone is from a political party," Justice Gavai said to the SG.Mehta argued that Mishra needed to remain the incumbent for continuity, and since the FATF's peer-review of India's measures towards money-laundering is under way.To this Justice Gavai smiled and orally asked,"From November onwards the ED will be headless and manned by an incompetent person? The aspect of peer-review seems to be an afterthought. Was it mentioned in 2021?"The SG and ASG emphasised in their submissions that the statutory basis of the earlier ruling had been removed by means of the CVC Amendment Act..Senior Advocate Gopal Sankaranarayanan, appearing for the petitioners, in his rejoinder submissions said that the government had interfered with appointments of an agency meant to be independent."Here there was an ordinance that preceded it. Which is a purely executive action. Which they should not have done at all."He argued that with the current composition of the committee meant to appoint ED directors, the executive had a majority as one vigilance comissioner post was vacant.Advocate Prashant Bhushan argued that the Amendment Act seriously compromises the independence of the ED. Viswanathan pointed out that Mishra's extensions had by now exceeded his initial tenure of two years."If it (the Act and appointment) is not struck down, it will haunt [us], and it haunts me, that it will be misused by future governments. That is why this case is extremely serious," he said.