ED director's extension illegal, must relinquish office by July end: SC

The apex court said the two orders of the Central government on November 17, 2021 and 2022, extending the Mishra's tenure by one year each were “invalid in law.”

The apex court bench, headed by Justice B R Gavai, passed the order on a batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Jaya Thakur and TMC's Mahua Moitra and Saket Gokhale.

The, SC, however, affirmed the amendments in the DSPE and Central Vigilance Commission Act (CVC Act), giving the Centre the power to extend the tenure of a CBI chief and ED director by a possible 3 years beyond their mandatory two-year term.

"We have held scope of judicial review under legislative action is limited if it affects fundamental rights, or is manifestly arbitrary. We have held there is no manifest arbitrariness. The legislature can legislate.. extension can be granted when it is about the high-level officials such as this in the public interest and with reasons in writing," the Supreme Court said.

In December 2022, the Supreme Court sought a reply from the Centre and others to a plea challenging the third extension granted to ED chief Mishra.

It had issued notices to the Union of India, Central Vigilance Commission and the ED director on a plea filed by Congress leader Jaya Thakur.

According to the Congress leader, the Supreme Court had issued a clear directive stating that no additional extensions would be granted to Mishra.

However, the Central government provided Mishra with a second extension, spanning from November 17, 2021, to November 17, 2022.
Subsequently, the leader filed a petition, resulting in the issuance of a notice in response to the matter.

On November 18, Justice SK Kaul recused himself from hearing the petitions that challenged the amended law permitting the extension of the Enforcement Directorate (ED) director's tenure for up to five years.

This occurred a day after Mishra, the chief of the anti-money laundering agency, received a fresh one-year extension.

The batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Thakur, as well as TMC's Mahua Moitra and Saket Gokhale, were scheduled for consideration before the bench.

As per an official order, the Union government granted a one-year extension to Mishra, marking the third extension for the Indian Revenue Service officer.

The government notification stated that Mishra, from the 1984 batch of the IRS, would remain in office until November 18, 2023.
Initially appointed as the ED director for two years on November 19, 2018, Mishra's term was retrospectively modified to three years through a government order on November 13, 2020.

Last year, the government enacted an ordinance that allowed for extensions of up to three years for the chiefs of the ED and CBI beyond the mandated two-year term.

On September 5, the Central government challenged the bona fides of the pleas filed by some political leaders in the Supreme Court.
These pleas contested the extension granted to the ED chief and the amended law permitting extensions of up to five years, with the government referring to them as "pressure tactics."

The apex court appointed Vishwanathan as amicus curiae to assist in dealing with the petitions.

Congress leader Surjewala's plea specifically challenged the amendment made by the central government, which deviated from the fundamental concept established by the Supreme Court in the Vineet Narayan and Common Cause cases regarding fixed tenures for such officials.