In a significant development, the Supreme Court has declared the two tenure extensions granted to Sanjay Kumar Mishra, Director of Enforcement Directorate (ED), as “not valid in law.” The court has set a new deadline for Mishra, stating that he can continue in his position only until July 31. This decision cut short Mishra’s tenure as the ED chief, as he was previously granted a second extension until November 18, 2023.
The bench comprising Justices B R Gavai, Vikram Nath, and Sanjay Karol has, however, upheld the constitutional validity of the amendments made to the Central Vigilance Commission Act, 2003, the Delhi Special Police Establishment Act, 1946, and the Fundamental Rules in 2021. These amendments enabled the extension of tenure for Mishra. The Supreme Court’s directions came in response to several petitions, including those filed by Jaya Thakur of the Congress party and Mahua Moitra of the TMC.
Shortly after the court’s decision, Union Home Minister Amit Shah took to Twitter to express his perspective. He stated that those celebrating the Supreme Court’s ruling on the ED case were mistaken for various reasons. Shah emphasized that the amendments to the Central Vigilance Commission Act, which were duly passed by Parliament, have been upheld. He further highlighted that the ED’s powers to combat corruption and enforce the law remain unchanged.
During Mishra’s tenure, the ED swiftly pursued cases filed under the Prevention of Money Laundering Act, particularly those involving opposition leaders and their relatives. In April of this year, the Supreme Court rejected a plea by 14 political parties alleging selective and targeted use of central probe agencies like the ED and CBI by the BJP-led central government against their leaders. The court stated that it could intervene in individual cases based on facts but could not establish separate guidelines specifically for politicians.
The Supreme Court has allowed Mishra to remain in his position until July 31, considering the government’s argument that India is undergoing a review by the Financial Action Task Force (FATF) and that his continued presence is necessary for effectively presenting the country’s efforts. The bench also acknowledged that appointing a new ED Director may take some time.
The court highlighted its previous ruling on September 8, 2021, in the Common Cause case, which explicitly stated that no further extensions should be granted to Mishra. The bench concluded that the government’s orders dated November 17, 2021, and November 17, 2022, were in violation of the court’s mandamus and thus invalid.
Sanjay Kumar Mishra, a 1984-batch IRS officer, was appointed as the Director of ED on November 19, 2018, for a two-year term, which was later extended to three years on November 13, 2020. Common Cause had challenged this extension, and although the Supreme Court dismissed the petition on September 8, 2021, it explicitly directed that no further extensions be granted to Mishra.
Subsequently, the government amended the Central Vigilance Commission Act and Delhi Special Police Establishment Act, granting itself the authority to extend the tenure of the ED Director and CBI Director. These amendments were also challenged before the Supreme Court, with petitioners arguing that they undermined the court’s directive for a fixed tenure of the CBI chief.
In its judgment on the amendments, the court emphasized the need for self-imposed limits during judicial review of legislative or executive actions. It stated that legislative enactments can only be struck down if the legislature lacks the competence to make the law or if it infringes on fundamental rights or other constitutional provisions. In this case, the court found that Parliament had the power to enact the amendments, and they did not grant arbitrary powers to the government for extending the tenure of the ED or CBI Director. The court also affirmed that the minimum tenure of two years, as directed in previous judgments, was not altered by the amendments.