ED Director Tenure Extension Case: Union Govt Calls Petitions 'Politically Motivated'

Sanjay Mishra was set to demit office in November, 2020. On November 13, 2020, his appointment letter was modified retrospectively by the Union government and Mishra’s term of two years was replaced by three years.

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New Delhi: In the case against the tenure extension granted to Enforcement Directorate (ED) director Sanjay Kumar Mishra last year, the Union government has filed its response with the Supreme Court, calling the petitions against the tenure extensions “politically motivated”.

The court is currently seized of a batch of eight petitions by leaders of opposition parties, including Mahua Moitra and Saket Gokhale of the Trinamool Congress (TMC), Randeep Singh Surjewala and Jaya Thakur from the Congress, and others.

Saying that there is “manifest political interest” in the petitions being filed, the Union government, in its affidavits, said, “To achieve political advantage the traditionals have camouflaged the PILs without even mentioning that the leaders of their parties are currently being investigated by the ED,” according to Bar and Bench.

Background of Mishra’s tenure

Mishra was first appointed the ED director for a period of two years by an order on November 19, 2018. He was set to demit office in November, 2020, and in May that year, he had reached the retirement age of 60.

However, through an office order on November 13, 2020, the appointment letter was modified retrospectively by the Union government and Mishra’s term of two years was replaced by three years.

This 2020 order was challenged before the Supreme Court in September, 2021, and the court upheld the extension order, saying that such retroactive revisions are only allowed in the “rarest of rare cases”. However, the court noted that no further extension can be given to Mishra.

Thereafter, the Union government had promulgated two ordinances – the Central Vigilance Commission (Amendment) Ordinance, 2021 and the Delhi Special Police Establishment (Amendment) Ordinance, 2021 – which gave it powers to extend the powers of the ED and CBI chiefs, respectively, for a period of three years over and above their mandated two-year tenure. Soon after, Mishra’s tenure was extended till November 18, 2022.

Also read: With ED, CBI Ordinance, Centre Ups Its Game for ‘Fourth Gen Warfare’ Within Civil Society

These ordinances became law in December, 2021 and on the basis of the CVC.

In the present affidavit, the Union government argued that “clear enabling stipulations” for the tenure extension have been included in the two laws – The CVC (Amendment) Act and the DSPE (Amendment) Act.

“Hence their tenure may need to be extended beyond the initial terms in special circumstances, on the recommendation of the committee prescribed under the respective statute and for reasons to be recorded in writing. There is no embargo that the term of Director CBI or ED cannot be more than two years,” Bar and Bench quoted the affidavit as saying.

The affidavit also argued that there is a necessity for imposing an upper limit on appointments to posts such as the ED director to “ensure independence”. With respect to independence, the affidavit listed out three conditions which have to met in order to extend the ED director’s tenure, according to Section 25(d) of the CVC (Amendment) Act:

  1. It should be on a recommendation from a committee constituted under Section 25(a) of the Act.
  2. The extension should be in the public interest.
  3. The reasons for the extension must be recorded in writing.

Taking a potshot at the opposition leader-petitioners, the affidavit noted, “The petitioner would only be convinced that these agencies are independent if these agencies were to turn a blind eye to the offences committed by the political leaders of their political party.”

The matter will be heard by the Supreme Court on September 12.