The Supreme Court on July 27, in a special hearing, extended Enforcement Directorate (ED) Director Sanjay Kumar Mishra’s tenure till September 15, 2023 to serve “public and national interest”.
The court had declared Mr. Mishra’s continuation as ED Director “invalid and illegal” in a judgment on July 11. It had directed him to quit office by July 31.
However, just four days before the deadline, the Centre moved an urgent application in the Supreme Court, saying Mr. Mishra’s presence in the saddle was crucial for the country to effectively sail through the ongoing evaluation by the Financial Action Task Force (FATF). The government asked the court to allow Mr. Mishra, who is currently on his third extension and fifth year as ED chief, to continue till October 15. The country’s international image was at stake, the Centre pleaded.
Stressing that the court would not have entertained the government’s request in “ordinary circumstances”, especially after declaring Mr. Mishra’s continuation as ED Director “illegal”, the Special Bench headed by Justice B.R. Gavai allowed him to carry on at the ED’s helm till mid-September.
The Bench, also comprising Justices Vikram Nath and Sanjay Karol, made it clear that it would allow no further requests from the government for his extension. It said Mr. Mishra would cease to be ED Director from September 15-16 midnight.
The hearing began at 3.30 p.m. with a sharp question from Justice Gavai to the government, represented by Solicitor General Tushar Mehta.
“Are you not giving a picture here that your entire department is full of incompetent people except for this one person... Is it not demoralising for the entire force that except for this one person, the entire department will collapse,” Justice Gavai asked.
Justice Gavai said the court could have stopped this person from continuing as ED Director from the very day of the judgment on July 11. “We gave you time till July 31 for the sake of smooth transition,” the judge observed.
Mr. Mehta agreed that no one was indispensable. He said a good FATF peer review was a five-year exercise. “Continuity in office would help the country and decide the country’s ability, help in international credit ratings, financial arrangements with the World Bank... It is a coincidence that the July 11 verdict came at the time of the FATF review,” he submitted.
Additional Solicitor General S.V. Raju said there were hostile countries which wanted India to be in the “gray list”. “We are now in the FATF list of compliant countries. A new ED Director would take at least six months to look through and understand the files,” he said.
‘Review in disguise’
Senior advocate A.M. Singhvi, for a petitioner, said the government’s application was a “review in disguise” of the July 11 verdict.
“It is very sad to see the Centre saying the future of the country is on one man’s shoulders. It is the Ministry officials, the Secretary of Revenue, and not ED Director, who engages with the FATF,” Mr. Singhvi submitted.
Senior advocate Anoop Chaudhary, also on the petitioner side, highlighted the incongruity of a man whose continuity was declared illegal by the top court engaging with the FATF. “Will this not affect the country’s image? The ED Director is only a small cog in the constitutional machinery. Let us not make him into a constitutional figurehead on whom the future of this country depends,” he said.
‘Gross abuse’
Advocate Prashant Bhushan questioned the timing of the Centre’s application. He said any extension of Mr. Mishra’s tenure would be a “gross abuse”.
“If the Supreme Court accepts this application, it will make mincemeat of the settled law,” he cautioned.
Mr. Mehta countered that the petitioners represent various political parties. He said some of the submissions were intent to give the country a bad name.
He clarified that what the government wanted to convey was that Mr. Mishra’s continuation in office would help the country make an effective presentation in the FATF review.
Besides, he said the ED Director directly engages the FATF assessment team on the implementation of the Prevention of Money Laundering Act.
“The nation is strong. We need that continuity to present that strong picture before the international community,” Mr. Mehta submitted.
