Supreme Court Allows In Public Interest Centre's Plea Seeking Extension Of ED Director Sanjay Mishra's Tenure Till Sept 15

The Supreme Court today, in view of larger public interest, allowed the Union of India's application seeking an extension of the tenure of ED Director Sanjay Kumar Mishra till September 15, 2023, which was set to expire on July 31, 2023, as per the deadline previously set by the Court.

The Bench of Justice B.R. Gavai, Justice Vikram Nath and Justice Sanjay Karol in its order noted "In ordinary circumstances, we would not have entertained such an application. Having held that the extension granted to Respondent No.2 was illegal we had permitted him to continue till the 31st of July in order to ensure a smooth transition. We find that though in ordinary circumstances such an application could have not been entertained, but taking into consideration the larger public interest we are inclined to permit Respondent No.2 to continue for some more period."

The Bench further noted that "We, therefore, permit Respondent No.2 to continue as Director ED till the 15th of September, 2023. We clarify directly that no further application will be entertained for a grant of extension to Respondent No.2. We further clarify that Respondent No. 2 will seize to be the Director of ED from midnight of September 15-16,2023".

Appearing for the Union of India, Solicitor General Tushar Mehta at the outset submitted "The circumstance here is little unusual as your lordships declared appointment to be illegal and we are conscious of that fact. But the difficulty is 3rd of November is the date from which the FATF team will visit the Country and before that, there is an exchange of question and answer for which this extension is sought". 

FATF i.e. Financial Action Task Force is an inter-governmental organisation of the G7 group of nations. 

Considering the submissions made by the SG, Justice Gavai remarked "Is your department full of incompetent persons? only one person to head the department?... are you not giving a picture that your department has only one competent person and is it not demoralising your entire force?". He further remarked that "A department can't function because one person is not there? If I don't come tomorrow will the Supreme Court collapse?"

Solicitor General further submitted "No one is indispensable in the world. There is something like leadership in an organization. FATF is an ongoing process and Respondent No.2 is heading the department for the last several years in order to continue the FATF review and it is necessary that he should be allowed to be continued till the 15th of October." SG further added that "The country is dependent upon the outcome of the FATF review which has a direct relation to the image of the country at the international level".

Appearing for the Respondents, Senior Advocate Abhishek Manu Singhvi submitted "Milords dealt with the FATF thing, this is another review petition but just in open court with a different name." Singhvi further stated that the entire country is dependent on the shoulders of one man. "This was the man who was supposed to go 2 years ago and now the entire FATF process is dependent upon him?", Singhvi asked.

Singhvi further added that "The argument of the opposite side is that heaven will fall if you won't allow the extension and this also sends out a very bad message that you are still supporting this person after a third judgement of this Court."

Further appearing for the Respondents, Advocate Prashant Bhushan submitted "All these arguments made in the application were made earlier". Bhushan said "This is a review application being disguised as an application seeking an extension. This application portrays that the ED is the main agency and that this person is totally indispensable.., if this person is so important then let the government appoint Mishra as a social advisor to anyone they want so he can advise the FATF committee." He further said that the said application will be against the settled law that you can't file such an application in place of a review petition. 

On Wednesday, the matter, though not listed, was mentioned before the Bench led by Justice B.R. Gavai by the Solicitor General Tushar Mehta who sought an urgent hearing of the application. "This is an unlisted matter but I would like to mention it. This is the ED's Director extension matter and unless your lordships permit, they cannot extend the term," said SG Mehta.

A Bench comprising Justice B.R. Gavai, Justice Vikram Nath and Justice Sanjay Karol had on 11th July 2023, in its judgement held that "Though we have held that orders dated 17th November 2021 and 17th November 2022 granting extensions to respondent No.2 are not valid in law, we are inclined to take into consideration the concern expressed by the Union of India with regard to FATF review. We are further inclined to take into consideration that the process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit respondent No.2 to continue to be in office till 31st of July 2023".

Sanjay Kumar Mishra was working as a Principal Special Director in the Directorate of Enforcement (ED) and was appointed as Director of Enforcement for a period of two years from the date of his assumption of charge of the post or until further orders, whichever was earlier, vide order dated November 19, 2018.

A writ petition [Common Cause (A Registered Society) v. Union of India & Ors. 2021 SCC OnLine SC 687] was filed in 2020 by Common Cause before the Apex Court questioning whether the extensions granted to the tenure of Mishra as Director of Enforcement for a period of one year each vides orders dated November 17, 2021, and November 17, 2022, are legal and valid, and if not, whether liable to be set aside.

Cause Title: Dr. Jaya Thakur v. Union Of India [Diary No. 29714-2023]