New Delhi: The Supreme court on Thursday was told that both, the 2012 amendment of the Central Vigilance Commission (Amendment) Act providing for five-year term for the Director Enforcement (initial term of two years and three extensions of one year each) and the further extension to incumbent Director Sanjay Kumar Mishra are illegal and needs to go sooner.
A bench comprising Justice B.R. Gavai, Justice Vikram Nath and Justice Sanjay Karol was told this in the course of the hearing of a batch of petitions challenging the November 17, 2021, Central government order giving yet another extension to the Director of Enforcement, Sanjay Kumar Mishra in the teeth of September 8, 2021 top court judgment directing that no further extension will be granted to Mishra.
The petitioners have also challenged the amendment to the CVC Act that paved the way for the grant of three-extensions of one year each to the Director upon completing the initial tenure of two years.
Senior advocate K.V. Viswanathan, who is assisting the court as amicus curiae (court’s friend), told the court that the amendment under challenge should be struck down as it does not conform to the top court’s yardstick saying that the extension should be for a “short/reasonable” period that too in the “rare and exceptional” case.
Viswanathan told the court that the yardstick set by the top court has been substituted by a “vague concept” of “public interest”. This, he said, may lead to “stagnation and inefficiency of service/administration and cause frustration amongst other eligible officers in the cadre”.
Stating that further extension to Sanjay Mishra in the teeth of top court’s judgment falls foul of the law, Viswanathan said that the piecemeal extension of tenure of one year each subject to a maximum cumulative tenure of five years undermines the independence and integrity of the office.
In the arguments by different lawyers including senior advocate Prashant Bhush and Gopal Sankaranarayanan assailed both the extension given to Sanjay Mishra and the amendment that nullified the basis of 2021 judgment. They argued that it was impermissible for the legislature to nullify the mandamus of the court or the substance of its judgment.
Under the 2021 amendment of Section 25 of the CVC Act, the Director of Enforcement will be appointed for an initial period of two years. Thereafter Director of Enforcement can be given extension of tenure by one year at a time and the same can continue to be granted till the completion of five years as Director of Enforcement including initial two-year term.
This, the amended provision says, will be done in public interest, on the recommendation of the committee of senior secretary level officers and the reasons for the same will be recorded in writing.
The committee for the selection of Director of Enforcement including for giving extension includes Central Vigilance Commissioner as Chairperson with Vigilance Commissioners, Union Home Secretary, Secretary, Ministry of Personnel, and Secretary, Department of Revenue as members.
Mishra was appointed as Director of Enforcement in the Directorate of Enforcement (ED) on November 19, 2018 for a term of two years. Prior to his appointment as Director of Enforcement, Mishra was Principal Special Director in the ED. On November 13, 2020, President of India approved the modification of the November 19, 2018 order extending the period of appointment of Mishra from two years to three years.
The central government had justified the extension of tenure, telling the top court that important investigations relating to trans-border crimes were at a crucial stage. The extension of tenure to Mishra, the top court was told, was in pursuant to the recommendation made of the high-powered committee.
Besides Jaya Thakur, other petitioners are Congress leader Randeep Singh Surjewala, Trinamul Congress leader Mahua Moitra and Saket Gokhale.
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