SC notice to Centre on third extension to ED Director Sanjay Kumar Mishra

New Delhi: The Supreme Court on Monday sought the response from the Centre and others to a plea challenging the third extension granted to Enforcement Directorate (ED) chief Sanjay Kumar Mishra.

A bench of Justices B R Gavai and Vikram Nath issued notices to the Union of India, Central Vigilance Commission and the ED director on a plea filed by Congress leader Jaya Thakur.

"Issue notice returnable in six weeks," the bench said.

The plea accused the central government of destroying the "basic structure" of democracy by misusing the enforcement agencies against its political opponents.

"The impugned extension of tenure of Respondent No.2 (Mishra) is destroying the democratic process of our country, hence the present writ petition has been filed by the petitioner which may kindly be allowed in the interest of justice," the plea, filed through advocates Varun Thakur and Shashank Ratnoo, said.

The Congress leader said the top court had passed a specific order that no further extension shall be granted to Mishra but the Centre gave him a second extension from November 17, 2021 to November 17, 2022 after which she filed a petition on which a notice was issued.

"During the pendency of above writ petition, respondent no.1 again gave third extension from November 18, 2022 to November 18, 2023 to the respondent no.2, which shows that respondent no.1 have no respect towards the rule of Law," the plea has said.

On November 18, Justice S K Kaul had recused himself from hearing the pleas challenging the amended law allowing extension of up to five years for the ED director, a day after Mishra was given a fresh one-year extension as the chief of the anti-money laundering agency.

A batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Jaya Thakur, and TMC's Mahua Moitra and Saket Gokhale, had come up for hearing before the bench.

According to an official order, the Union government gave a fresh one-year extension to Mishra, the third for the Indian Revenue Service officer, in the position.

The notification issued by the government said the 1984 batch IRS officer will be in office till November 18, 2023.

Mishra, 62, was first appointed the director of the ED for two years on November 19, 2018. Later, by an order dated November 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years.

The government promulgated an ordinance last year under which the tenure of the ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

On September 5, the Centre had contested in the top court the bona fide of the pleas filed by some political leaders challenging the extension granted to the ED chief and the amended law allowing such extensions up to five years, calling it "pressure tactics".

The apex court had then appointed senior advocate K V Viswanathan as amicus curiae (friend of the court) to assist it in dealing with the pleas.

On August 2 this year, the top court had sought responses from the Centre, the Central Vigilance Commission and others to the pleas.

Congress leader Surjewala's plea challenged the amendment made by the central government to the fundamental concept decided by the apex court in two judgements in the Vineet Narayan and the Common Cause cases on fixed tenure for such officials.

A batch of pleas have been filed on the issue, mostly challenging the Central Vigilance Commission (Amendment) Act, 2021 which provides for extension of the term of ED's director up to five years.

The Centre had on November 17, 2021 extended Mishra's stint at the anti-money laundering agency by a year till November 18, 2022, days after bringing ordinances to allow the ED and CBI directors to occupy offices up to five years.

The apex court had, in its September 8 last year judgement on a petition filed by NGO 'Common Cause', said a reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the committee constituted under Section 25 (a) of the CVC Act.

It had upheld the Centre's power to extend Mishra's tenure as ED director but clarified granting extension to officers after the age of superannuation should be done only in rare and exceptional cases.

The top court had also made it clear that no further extension can be granted to Mishra.