Why question of ED chief’s tenure is back in Supreme Court

The 2021 ruling

On September 8, 2021, a Bench of Justices B R Gavai and L Nageswara Rao upheld the Centre’s order extending the tenure of Mishra beyond two years. However, the Bench said that “extension of tenure…to officers who have attained the age of superannuation should be done only in rare and exceptional cases”, and that such extensions “should be for a short period”.

The court said “there is no fetter on the power of the Central Government in appointing the Director of Enforcement beyond a period of two years”. On Section 25(d) of the Central Vigilance Commission Act, 2003, which lays down the minimum tenure of an ED Director, the SC said, “The words ‘not less than two years’ cannot be read to mean ‘not more than two years’.”

ED chief’s tenure

Mishra was appointed to the post for two years by an order dated November 19, 2018. On November 13, 2020, the Centre extended his tenure by a year. The NGO Common Cause filed a PIL asking for the November 13, 2020 order to be set aside, on the ground that Mishra’s overall tenure of three years violated Section 25 of the CVC Act.

In November 2021, with the one-year extension to Mishra coming to an end, then President Ram Nath Kovind signed ordinances that amended the laws governing the CBI and ED, enabling the government to keep the two chiefs in their posts for one year after the completion of their two-year terms, and to keep giving these one-year extensions until they complete five years as chiefs.

What SC has said

On Monday, Justice Gavai said he was of the prima facie view that the 2021 case had not been rightly decided, and required reconsideration. He said the case did not involve a question of extension then. The Bench comprising Justices Gavai, Vikram Nath, and Sanjay Karol was hearing a challenge to the extension given to Mishra on the grounds that it violated the 2021 ruling.

Justice Gavai’s remarks came after Additional Solicitor General S V Raju tried to make a distinction between an initial appointment and an extension, and said the 2021 judgment only dealt with the initial appointment.

Mishra will complete five years as ED chief in November. The Centre has submitted that the extension was given due to a pending review by the Financial Action Task Force (FATF), the global terror funding watchdog, and that “continuity would help” the country. It has also said that Mishra would not remain in service after his term comes to an end in November.