Challenge to tenure extension of ED Director: Supreme Court says won't go into locus of petitioners, will decide on merits

The Supreme Court on Thursday made it clear that it was not concerned with the political affiliations of the petitioners challenging the repeated tenure extensions of the incumbent director of the Enforcement Directorate (ED), Sanjay Kumar Mishra [Dr Jaya Thakur vs Union of India and ors]..A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol orally observed that it would adjudicate the case based on merits and law and dismissed the objections regarding the locus of the petitioners.The Central government had earlier told the Supreme Court that the petitioners have moved court to protect political leaders who are facing money-laundering charges.The petitioners before the top court are leaders of Congress party and Trinamool Congress. Solicitor General Tushar Mehta, appearing for the Central government, told the Court on Thursday, "I have not said they are victims. I have said they are parties affected."Justice Karol then said,"They will still have locus Mr. Mehta.""We will decide on the basis of law. It does not matter if petitioner is BJP or [any other party]," Justice Gavai weighed in..The top court was hearing a batch of pleas challenging the extension of the tenure of the ED Director, Sanjay Kumar Mishra.Senior Advocate KV Viswanathan, Amicus Curiae in the case had last month told the bench that extension to Mishra's tenure was illegal.The petitioners have challenged the third extension granted to Mishra.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 Supreme Court's decision in 2021, the Central government brought in an ordinance amending the Central Vigilance Commission (CVC) Act, empowering itself to extend the tenure of the ED Director by up to five years.Parliament later passed a law in this regard allowing extension of the ED director for one year at a time, subject to a maximum of 5 years. .Other arguments todaySenior Advocate Anup George Choudhary appearing for one of the petitioners, Congress leader Jaya Thakur said that the Central government has illegally nullified the top court ruling by brining in the law. "Bizarre contentions have been made in their counter. After the judgment, fundamental rules are amended. Basis of judgment goes, it becomes an absolute nullity, non est. This Court specifically said no further extension, how they get out of that. They do not file a review but an MA [miscellaneous application] in the nature of a review. This Court had made it clear that no extension ... Their arguments are ludicrous, that a judgment can be made non est," he said.The effect of a judgment cannot be permitted to be 'wiped out' in such a manner, he added..Senior Advocate Gopal Sankaranarayanan, appearing for TMC leader Mahua Moitra, argued that a writ of mandamus cannot be undone.He submitted that the law allows short extensions based only on contingencies. "This short period has become one year at a time. They have made it amorphous and thrown it out the window. They have taken rare and exceptional circumstance and dumped it. Effectively, if the gentleman was going to retire 6 months after, he is given a 2-year extension ...The way it goes is if you continue to be a good boy you will get extension. So probes cannot be independent. And issue is also that there are others in fray." He said that the extensions granted need to be struck down and Mishra's tenure should be brought to an end. The counsel for one the petitioners stated that committee formed to finalise the name of the new ED Director was meaningless since the Central government only forwarded one name.The counsel for TMC leader Saket Gokhale pointed out that no vigilance clearance was conducted for Mishra on approval of his extension..Amicus Curiae KV Viswanathan submitted that the government should not be allowed to misuse its power to grant such extensions.The Amicus also flagged the government invoking public interest to justify its move."We have found that they [extension notifications and amendments to law] fall foul of the law. Extension should not be longer than original tenure, that will be better for our democracy. No government should be able to misuse this provision. We have come to the sole conclusion that the notifications are invalid, purely as a matter of law, not malafide allegations. He can now go on for five years, only clause mentioned is public interest. This is a vague concept ... It is bound to be misused", the Amicus said.Advocate Prashant Bhushan, appearing for NGO-Common Cause, said that the notifications were illegal."It is important that persons heading important questions are independent. Today ED is more important and making more arrests than CBI. Heads of these institutions should not be at mercy of the government, by transferring out or giving extension after extension by dangling the carrot in front of them", Bhushan stressed.Senior Advocate Abhishek Manu Singhvi, also appearing for one the petitioners, argued that the Central government has adopted the 'circuitous' route of extensions to circumvent the fixed tenures laid down by law..The Central government has contended that there is "no embargo" on extending the tenures of Central Bureau of Investigation (CBI) and ED directors beyond the stated period of two years. The Supreme Court today concluded hearing arguments of the Amicus Curiae and the counsel for the petitioners. The hearing will continue on April 20 when counsel for the Central government will begin submissions..[Follow our live-coverage of today's hearing].[Read order]