Supreme Court strikes down tenure extension of ED Director Sanjay Kumar Mishra but upholds amendment to CVC Act

The Supreme Court on Tuesday struck down extension of tenure of incumbent Director of Enforcement Directorate (ED) Sanjay Kumar Mishra on the ground that the same was in violation of the Supreme Court's 2021 judgment [Dr Jaya Thakur v. Union of India and ors].A three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol held that the extension granted to Mishra was contrary to a 2021 judgment rendered by a division bench of the Supreme Court.In that judgment, the top court had directed that Mishra cannot be given any extension beyond November 2021.Pertinently, the Court today upheld the amendments made by the legislature to the Central Vigilance Commission Act (CVC Act) conferring power on the Central government to extend the tenure of ED director by upto 5 years."Challenge to CVC Act and Delhi Special Police Establishment Act is dismissed to that extent. Extension granted to Sanjay Kumar Mishra after Supreme Court verdict is illegal. However, he is permitted to hold office till July 31, 2023," the Court ordered.The Court said that while the legislature is empowered to enact law allowing extension of tenure of ED Director, it would not come to the rescue of Mishra since there was a specific Mandamus by the apex court in its 2021 judgment against Mishra being given further extension."We have held though legislature is competent to take away basis of judgment, it cannot annul the Mandamus. In Common Cause judgment, there was a specific mandamus and it was directed that there should be no further extension. Thus, extensions given after verdict was invalid in law," the Court said.Specifically on the amendments to CVC Act, the Court said that judiciary can intervene only if it affects the fundamental rights or if it is manifestly arbitrary. "We have held there is no manifest arbitrariness. Legislature can legislate. Extension can be granted when it is about the high level officials such as this in public interest and with reasons in writing," the Court said while upholding the law..The judgment came in a batch of petitions challenging the extension of the tenure of the current Director of the Enforcement Directorate (ED), Sanjay Kumar 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 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.This came to be challenged before the apex court by way of the present petitions. 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 (and now elevated to the top court), had in February submitted that the extensions to Mishra's tenure were illegal..[Read judgment]