SC annuls ED chief’s third extension

New Delhi: The Supreme Court on Tuesday quashed the Union government’s decision to grant a third extension of tenure to Enforcement Directorate (ED) chief Sanjay Kumar Mishra and termed the mandate ‘illegal’, even as it affirmed the 2021 amendments in the pertinent laws to extend the tenure of the directors of Central Bureau of Investigation (CBI) and ED up to a maximum of five years. Mishra can continue as ED chief only till July 31 to enable the Centre to make alternative arrangements or make a fresh appointment, the court said.

A bench headed by justice BR Gavai held that Mishra could not have been granted the extension beyond November 2022 in view of a previous order of the Supreme Court in 2021, restraining yet another extension to Mishra. The bench, which also included justices Vikram Nath and Sanjay Karol, said that Mishra can continue till July 31, following which a new director will have to assume the office. Mishra, who was granted a third extension in November last year, was otherwise set to demit office in November 2023. Reading out the operative part of the judgment, justice Gavai said that while the 2021 amendments to the Central Vigilance Commission (CVC) Act and the Delhi Special Police Establishment (DSPE) Act are held to be valid legislations, Mishra cannot be allowed to continue since there was already a mandamus by the court against continuing his tenure beyond November 2022.

“We have held that though the legislature is competent to take away the basis of a judgment, it cannot annul a mandamus issued between the parties. In Common Cause (Vs Union of India case of 2021), there was a specific mandamus, and it was directed that there should be no further extension. Thus, the extension after verdict was invalid in law,” said the judge.

On the amendments in CVC Act and DSPE Act, the court held that they cannot be interfered with. “We have held that the scope of judicial review under legislative action is limited. It can be done when it affects fundamental rights or is manifestly arbitrary. We have held that there is no manifest arbitrariness nor is there a violation of any fundamental right. Further, extensions can be granted by the high-level committees in public interest and with reasons in writing,” it said.