SC extends ED chief SK Mishra’s tenure until Sept 15 in ‘larger public interest’

A special bench of Justices B R Gavai, Vikram Nath and Sanjay Karol, which took up an application filed by the Centre seeking extension of Mishra’s tenure, said that “under ordinary circumstances, we would not have entertained such an application”.

Taking into account larger public interest, Supreme Court allows SK Mishra to continue as ED Director till September 15. Makes it clear he shall cease to be ED Director with effect from midnight of 15-16 September. @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 27, 2023

The bench referred to its July 11 order, wherein it had held the two extensions given to Mishra by orders dated November 17, 2021 and November 17, 2022, and said it had “permitted him to continue till July 31 in order to ensure (a) smooth transition”.

The bench noted, “We find that though in ordinary circumstances such an application would not have been entertained, taking into consideration the larger public interest, we are inclined to permit respondent number 2 (Mishra) to continue for some more period. We, therefore, permit respondent number 2 to continue as Director ED till September 15, 2023.”

The court clarified that “no further application will be entertained for grant of extension to respondent number 2” and directed that he “shall cease to be Director of ED with effect from midnight of 15-16 September, 2023”.

The Centre had requested the court to extend his tenure until October 15, 2023, citing the FATF review.

On Thursday, the bench initially quizzed the Centre over the request after Solicitor General Tushar Mehta submitted that Mihsra’s continuation in office is important from the point of view of the FATF review. “Are we not giving a picture that your entire department is full of incompetent persons,” Justice Gavai asked. “There is only one person in the country who is competent enough to head the ED? Is it not demoralising the entire force that the Department can’t function if one person is not there?”

Stating that no one is indispensable, Mehta submitted, “(It is) not that we are not trusting the rest of the officials. There is something like leadership in any organisation and continuity plays the role. This is a peer review for the past five years at least. There will be several questions which will have to be answered at the highest administrative level of the department.

“This is not an annual exercise which somebody else can take up. This is an exercise which last took place in 2010. Thereafter it was due in 2018-19 but it could not be done because the international community was facing Covid. So no country was peer-reviewed. The peer review started recently…”

The continuity, Mehta submitted, “would help the country”.

Additional Solicitor General S V Raju said some neighbouring countries want India to fall in the grey list and a new person who comes into office will require time to settle and “will actually hamper” the process.

Senior advocate A M Singhvi, who appeared for a petitioner, said the court had already dealt with FATF in its July 11 order and the present application was actually a review petition by another name. He also questioned “the level to which one country is depending on the shoulders of one man”.

Advocate Prashant Bhushan also contended that the points being raised by the Centre now were already dealt with in the hearing leading to the July 11 verdict. He said, “If this person is so important, the Government can appoint him as a special adviser to whoever is going to be there for the FATF review…why do they seek extension till October when the process goes on till 2024?”,

Appearing for another petitioner, senior advocate Anoop George Chaudhary said the Revenue Secretary is the main person for FATF review and the Financial Intelligence Unit is a more important office than the ED as far as the process is concerned.