The Supreme Court on Monday reserved its order on a batch of petitions challenging the extension of tenure to Director, Enforcement Directorate, Sanjay Kumar Mishra and the 2021 amendment of Section 25 of the Central Vigilance Commission (Amendment) Act providing for five-year term for the Director Enforcement (initial term of two years and three extensions of one year each).

A bench of Justice BR Gavai, Justice Vikram Nath and Justice Sanjay Karol reserved the order on the conclusion of arguments by the petitioner’s challenging extension of tenure to Mishra in the teeth of 2021 top court judgment including amendment to CVC Act. The centre defended both the extension to Mishra and the amendment to CVC Act as well.

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Reserving the order, the court asked all the parties to file additional written notes by next Friday.

Amicus Curiae KV Viswanathan, who is assisting the bench in the matter. urged the court to strike down the amendment in the larger interest of democracy expressing apprehension that it will be misused by future governments.

Appearing for the Centre, the Solicitor General Tushar Mehta told the bench that Sanjay Kumar Mishra is not the Director General of police but he represents the country internationally and hence parliament has taken a conscious call. He also apprised the court that Mishra will demit office in November.

Defending the decision to give further extension to Mishra, the Solicitor General Mehta said that money laundering offence has trans-border implications. He said that the extension was for administrative reasons as it was vital for the country’s evaluation by the Financial Action Task Force (FATF).

In the earlier hearing on March 23, amicus curiae (friend of the court) Viswanathan had told the court that the amendment under challenge should be struck down as it does not conform to the top court’s yardstick saying that the extension should be for a “short/reasonable” period that too in the “rare and exceptional” case.

Viswanathan had told the court that the yardstick set by the top court has been substituted by a “vague concept” of “public interest”. This, he had said, may lead to “stagnation and inefficiency of service/administration and cause frustration amongst other eligible officers in the cadre”.

Stating that further extension to Sanjay Mishra in the teeth of top court’s 2021 judgment falls foul of the law, Viswanathan had said that the piecemeal extension of tenure of one year each subject to a maximum cumulative tenure of five years undermines the independence and integrity of the office.

In the earlier hearing, various lawyers including senior advocate Prashant Bhush and Gopal Sankaranarayanan had assailed both the extension given to Sanjay Mishra and the amendment that nullified the basis of 2021 judgment. They had argued that it was impermissible for the legislature to nullify the mandamus of the court or the substance of its judgment.

Under the 2021 amendment of Section 25 of the CVC Act, the Director of Enforcement will be appointed for an initial period of two years. Thereafter Director of Enforcement can be given extension of tenure by one year at a time and the same can continue to be granted till the completion of five years as Director of Enforcement including initial two-year term.

This, the amended provision says, will be done in public interest, on the recommendation of the committee of senior secretary level officers and the reasons for the same will be recorded in writing.

The committee for the selection of Director of Enforcement including for giving extension, includes Central Vigilance Commissioner as Chairperson with Vigilance Commissioners, Union Home Secretary, Secretary, Ministry of Personnel, and Secretary, Department of Revenue as members.

Mishra was appointed as Director of Enforcement in the Directorate of Enforcement (ED) on November 19, 2018 for a term of two years. Prior to his appointment as Director of Enforcement, Mishra was Principal Special Director in the ED. On November 13, 2020, President of India approved the modification of the November 19, 2018 order extending the period of appointment of Mishra from two years to three years.

The Central government had justified the extension of tenure, telling the top court that important investigations relating to trans-border crimes were at a crucial stage. The extension of tenure to Mishra, the top court was told, was in pursuant to the recommendation made of the high-powered committee.

Besides Jaya Thakur, other petitioners are Congress leader Randeep Singh Surjewala, Trinamul Congress leader Mahua Moitra and Saket Gokhale.rr